We took the week off from our Week in Review alert last week as it was a (relatively) slow week. However, as it tends to happen after a slow week, developments picked back up this week. Notably, President Trump issued a flurry of new executive orders pertaining to schools and education generally. We also saw continued activity from the Department of Education and the courts regarding Title IX as applied to gender identity under the Trump Administration’s executive orders on biological sex, and a federal court in New Hampshire enjoined some enforcement of the February “Dear Colleague” Letter.
Additional information regarding these developments can be found below.
The Week in Brief:
- The Department of Education Announced Consequences for Maine’s Title IX Non-Compliance, Including Potentially Terminating all Federal K-12 Funding to the State
- The Trump Administration Froze Funding for Several Higher Education Institutions for Alleged Failure to Address Antisemitism
- The Supreme Court Heard a Challenge to LGBTQ Curriculum Content in the case of Mahmoud v. Taylor
- A Federal Judge Enjoined Some Enforcement of “Dear Colleague” Letter and Title VI Certification
The Trump Administration also issued a flurry of Executive Orders this week addressing these and other issues, which you can read about here.
Franczek Insights:
- Department of Education Announces Consequences for Maine’s Title IX Non-Compliance – by Emily Tulloch
We previously wrote about the Administration’s targeting of the Maine Department of Education (MDOE) for Title IX noncompliance. In that alert, we noted that the U.S. Department of Education had opened an investigation into the MDOE under Title IX based on allegations that it allowed “male athletes to compete in girls’ interscholastic athletics” and “denied female athletes female-only intimate facilities.”
On April 11, 2025, the Department announced that the MDOE would face consequences for its “continued refusal to comply with Title IX.” After issuing findings of Title IX violations, the Department referred its Title IX investigation to the U.S. Department of Justice (DOJ) for enforcement action, while it simultaneously initiated proceedings to terminate MDOE’s federal funding. In its April 11, 2025, announcement, the Department stated, “[t]he Maine Department of Education will now have to defend its discriminatory practices before a Department administrative law judge and in a federal court against the Justice Department. Governor Mills would have done well to adhere to the wisdom embedded in the old idiom—be careful what you wish for. Now she will see the Trump Administration in court.’” The announcement reiterated the Administration’s position that Title IX prohibits discrimination on the basis of sex, which includes “protect[ing] female student athletes from having ‘to compete with or against or to appear unclothed before males.’”
At this time, the Department has only initiated administrative proceedings to terminate MDOE’s federal funding. Under Title IX regulations, specific procedures must be followed before the Department can suspend, terminate, or refuse to grant or continue federal funding. To effectuate a funding cut, the Department must initiate an administrative action that allows for a hearing before an administrative law judge, among other procedural steps. The Department’s initiation of enforcement proceedings against the MDOE is only the start of what may be a long and protracted process.
The regulations also allow the Department to refer cases to the DOJ for enforcement in federal court. As explained above, the Department did so here, and the DOJ quickly announced that it is suing the MDOE for continuing to allow transgender female athletes to participate in girls’ sports.
We will continue to monitor the Department’s actions against the MDOE and keep you up to date.
- Trump Administration Freezes Funding for Northwestern, Cornell, & Other Higher Education Institutions – by Kristen Kinast
Over the last few weeks, the Trump Administration has frozen billions of dollars in federal funding for prestigious higher education institutions. Reportedly, the Administration has frozen more than $1 billion in federal funding for Cornell University and $790 million for Northwestern University while the Administration investigates alleged civil rights violations related to “antisemitism” and “racial discrimination” stemming from those institutions’ efforts to promote diversity. This freeze came shortly after the U.S. Department of Education sent letters to dozens of higher education institutions threatening enforcement actions if the institutions did not “protect Jewish students.”
The Trump Administration has also frozen or threatened to freeze funding and grants to Columbia, Harvard, Brown, Princeton, University of Pennsylvania, and other higher education institutions unless they comply with the Administration’s demands. Columbia agreed to demands that included banning masks, adopting a new definition of antisemitism, and increasing staffing for its Institute for Israel and Jewish Studies.
Harvard University has so far rejected the demands despite the potential loss of $9 billion in federal funding, arguing the demands violate the First Amendment and circumvent statutory rights by mandating unsupported and disruptive remedies without any finding of violations. Harvard noted the demands also target independently operated medical and research hospitals. President Alan Garber affirmed Harvard’s commitment to its independence and constitutional rights, stating that no government should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue. In response, the Trump Administration threatened to cut another $1 billion in funding in federal funds from Harvard and revoke the university’s tax-exempt status.
On April 21, 2025, Harvard filed suit against the Trump Administration, requesting the Court halt the funding freeze. Harvard alleges the funding freeze is being used to pressure it into restructuring its governance, academic programs, and hiring practices and imposing viewpoint-based conditions on funding, in violation of the First Amendment. The lawsuit also accused federal agencies under the Trump Administration of bypassing legally required procedures under Title VI of the Civil Rights Act by cutting off grants without legal justification.
- U.S. Supreme Court Heard Oral Arguments in Mahmoud v. Taylor – by Kristen Kinast
On Tuesday, April 22, 2025, the U.S. Supreme Court heard oral arguments in Mahmoud v. Taylor, a case concerning parental opt-outs for school curriculum using books with LGBTQ+ characters or themes.
The parents allege that requiring their children to participate in instruction that includes LGBTQ+ themes or characters violates their First Amendment rights to freely exercise religion and the refusal to allow opt-outs infringes on their ability to guide their children’s religious development. They also note the district’s policy is not neutral, allowing for opt-outs for instruction related to family life and human sexuality but not LGBTQ+ content. They ask the court to require Montgomery County Public Schools to provide opt-outs for LGBTQ+ themed instruction. The Trump Administration filed a brief supporting the parents.
The school district defends its curriculum, stating the books were added to prekindergarten to 12th grade curriculums to promote equity and respect. Initially allowing opt-outs, it later changed its policy because the increasing number of op-outs led to high student absenteeism, logistical challenges, and concerns about stigmatizing LGBYQ+ students and families. The district asserts that mere exposure to materials and ideas does not equal coercion, and no student was punished, compelled to adopt opposing beliefs or prevented from practicing their religion.
Both the trial court and the court of appeals ruled in favor of the school district, determining that the parents had not shown that exposure to the storybooks with LGBTQ+ characters or themes compelled them to violate their religion.
Before oral argument at the Supreme Court, several education organizations filed an amicus brief warning that the opt-outs sought by the parents would create chaos for schools, potentially preventing teachers from reading books referencing the existence of divorced or same-sex parents due to religious objections.
At the lengthy oral argument before the Supreme Court on Thursday, the Justices asked what other topics students may opt out of, the difference between exposing and coercing students regarding LGBTQ+ topics, and hypothetical situations involving students encountering teachers and peers who identify as LGBTQ+, and more. Plaintiffs claimed the school district impermissibly allowed opt-outs for other classes but not for this, that the school sought to coerce students to be pro-LGBTQ+, and that the parents sought only an opt-out, not to change the curriculum. In contrast, the district asserted that the district’s policies were neutral, the district tried to accommodate opt-outs but it was not feasible, and the inclusion of age-appropriate books with LGBTQ+ characters or themes was not related to religion but merely meant to foster respect and civility in a pluralistic society. The liberal-leaning justices questioned how lines would be drawn, while some conservative-learning justices raised concerns about age and impressionability of young students.
Foreshadowing the tremendous impact that this case may have, the topics at oral argument went far beyond the scope of opting out for the reading of a book in class. There was discussion about whether it is a burden on religious exercise to use an individual’s preferred pronoun, LGBTQ+ ads on public transportation, and same-sex marriage. We will continue to closely monitor this case as the Court’s decision could open the door to providing opt outs for any content that conflicts with a family’s religious beliefs.
- Federal Court Enjoins Some Enforcement of Department of Education Dear Colleague Letter and Title VI Certification – by Reva Ghadge and Hailey Golds
On April 24, 2025, the District Court for the District of New Hampshire granted a request by National Education Association (NEA) and Center for Black Educator Development (CBED) for a preliminary injunction against enforcement of the U.S. Department of Education’s February 2025 Dear Colleague Letter and subsequent actions to enforce the Letter, including through the 2025 FAQ, the “End DEI Portal,” and April 3, 2025 request for certification. The injunction bars the defendants, including Department of Education Secretary McMahon, from enforcing these measures against the plaintiffs or any entity that employs, contracts with, or works with one or more plaintiffs or one or more of plaintiffs’ members.
As we previously discussed here, the Letter set out the Administration’s interpretation of nondiscrimination obligations for educational institutions that receive federal funding and warned schools that treating students differently based on race to achieve goals including diversity, racial balancing, social justice, and equity, is in OCR’s opinion, illegal.
The plaintiffs challenged the Letter on the grounds that it is unconstitutionally vague, violates their First Amendment Rights, and is not in compliance with the Administrative Procedures Act. The court found that plaintiffs were likely to succeed on their claims and granted an injunction.
First, the court found that the Letter was unconstitutionally vague because it does not make clear what the Department believes constitutes a DEI program or the circumstances in which the Department believes DEI programs run afoul of Title VI. The court cited the Supreme Court’s repeated rejection of legal prohibitions that cover a wide swath of conduct while leaving individual enforcement decisions to the subjective determinations of enforcement authorities, noting that “[t]he government cannot simply tell people to ‘be good’ and leave it up to the enforcers to decide what ‘good’ is.”
While the defendants argued these fears were unreasonable because the Letter does not prohibit teachers from teaching certain books, the court found their argument “rings hollow in light of the “End DEI” portal,” which asserts the Department’s “commit[ment] to ensuring all students have access to meaningful learning free of divisive ideologies and indoctrination,” and the accompanying press release inviting parents to “share the receipts of the betrayal that has happened in our public schools” by teachers “pushing critical theory, rogue sex education and divisive ideologies.”
The court cited the example of NEA members who have been affected by the directives, including AP English teacher afraid to teach texts frequently covered by the AP exam because they discuss European imperialism and a middle school social studies teacher who was concerned that her lessons on the Civil Rights Act, Jim Crow South, and Tulsa Race Massacre would violate the Letter because they entail discussions of race and perceptions toward different racial groups.
The court similarly found that the Letter likely violates the First Amendment’s prohibition on viewpoint discrimination because it attempts to coerce third parties to punish or suppress disfavored speech on their behalf.
The court enjoined the Department of Education from enforcing the Letter against “entities receiving federal funding that employ or contract with plaintiffs or plaintiff’s members.” The effect is far reaching, as the National Education Association is America’s largest education union, representing approximately three million members who work at every level of education in every state. Likewise, the Center for Black Educator Development works with local school districts across the across the United States. The preliminary injunction remains in effect until the court issues a further order.
