On March 20, President Trump signed an executive order (EO) directing the Secretary of Education to take steps to close the Department of Education (DOE), and “return authority over education to the States and local communities[.]”

The EO, titled “Improving Education Outcomes by Empowering Parents, States, and Communities,” targets “diversity, equity, and inclusion” policies and practices, and “similar terms and programs promoting gender ideology.”  It directs the Secretary of Education to condition federal funding on an educational program’s or activity’s ending of “illegal discrimination,” which, President Trump says, is “obscured” by these labels.

Secretary Linda McMahon released a statement following the EO, saying the DOE “will continue to support K-12 students, students with special needs, college student borrowers, and others who rely on essential programs.”  But how, and on what conditions, this support will continue is unclear.

The DOE’s civil rights branch has traditionally been charged with enforcing civil rights laws that prohibit discrimination in programs or activities receiving federal funds from the DOE and has traditionally maintained an investigative function. Such investigative and enforcement authority stems from complaints that schools (and related activities or programs) violated Title VI of the Civil Rights Act of 1964, which bars discrimination or harassment on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.

Title VI prohibits intentional discrimination. Most funding agencies also have regulations implementing Title VI that prohibit recipient practices that have the effect of discrimination, even if there was no intent to discriminate.

Legal Challenges

While the EO remains in effect, pending legal challenges have created uncertainty around its implementation. Taft’s Higher Education group is monitoring the impacts of this and other EOs and will continue to provide updates as more guidance is released.

If this EO is implemented, recipients of federal funding in this space would need to comply with varying positions of federal agencies in light of President Trump’s policy directives. Many institutions of higher education began reevaluating and amending diversity standards after an earlier EO on “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” That EO concludes “DEI and DEIA policies” violate federal law, and ordered “all executive departments and agencies (agencies) to terminate all discriminatory and illegal preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements.”

Moving forward, the DOE’s functions would be redistributed across multiple federal agencies, including the Justice Department, Treasury, and Health and Human Services. This means regulations, guidance documents, and policies would be transferred and revised.

View the EO here.