Executive Orders Relevant to Institutions of Higher Education

President Trump has issued several executive orders relevant to institutions of higher education. Below we detail key provisions of these executive orders to help colleges and universities stay abreast of the everchanging policy landscape, and to provide takeaways to consider while awaiting further federal guidance. 

Diversity, Equity, and Inclusion (“DEI”)

President Trump has issued several executive orders targeting DEI programs, including an order Ending Illegal Discrimination and Restoring Merit-Based Opportunity and the Ending Radical and Wasteful Government DEI Programs and Preferencing Executive Order. These orders effectively seek to ban DEI (which is not defined) in the federal government and call for investigations into public and private institutions with DEI programs. Specifically, President Trump has directed the Department of Justice and the Department of Education to identify up to nine institutions with endowments over $1 billion as targets for civil compliance investigations due to their putative failure to comply with the Administration’s interpretation that federal civil rights law prohibits DEI. These agencies have also been directed to prepare guidance that identifies measures to ensure compliance with Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), which found that race-based affirmative action in college admissions violates the Equal Protection Clause. It is likely that this guidance will depart from the now-revoked Biden Administration’s guidance regarding Students for Fair Admissions. The Trump Administration’s anticipated guidance may seek to apply the holding of Students for Fair Admissions beyond college admissions. Institutions should consider how to prepare for compliance with this anticipated guidance. Additionally, these executive orders direct agencies to terminate DEI requirements in federal contracts and awards, and to ensure that federal grantees and contractors do not operate any programs promoting DEI that violate federal anti-discrimination laws.

President Trump has also rescinded executive orders from the Biden Administration designed to support Hispanic-Serving Institutions and Tribal Colleges and Universities. 

Title IX

President Trump also signed an executive order rolling back Biden Administration policy that extended the definition of sex to include individuals’ gender identity or sexual orientation. The Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Executive Order declares that the federal government will only recognize two sexes – male and female – based on an individual’s “immutable biological classification,” and orders federal agencies to enforce laws such as Title IX in accordance with this definition. This language is intended to foreclose any arguments similar to those made in Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII of the Civil Rights Act protects employees against discrimination based on their sexuality or gender identity, based on its interpretation of the word “sex” in the statute. The order also states that federal funds should not be used to “promote gender ideology” and orders the Attorney General to issue guidance protecting sex-based distinctions and stating that gender identity-based access to single-sex spaces is not required. In fact, the Department of Education’s Office for Civil Rights has already begun investigating alleged Title IX violations related to these policies, including an investigation into Denver Public Schools for converting a girls’ restroom to a multi-stall all gender restroom in a high school. The Department of Education also announced that it would revert to enforcing the 2020 Title IX rules, implemented by the prior Trump Administration, which narrow the definition of sexual harassment and the scope of cases that schools must address, to hold colleges and universities responsible for violations only if they act with “deliberate indifference,” and require live hearings as part of the grievance process. With these changes in mind, colleges and universities should be prepared to face inquiries into gender-inclusive practices and policies and ensure that their Title IX adjudicatory procedures align with the latest guidelines.

The Trump Administration’s Keeping Men Out of Women’s Sports executive order also relies on Title IX of the Education Amendments Act of 1972 to rescind funding from educational programs that “deprive women and girls of fair athletic opportunities.” The order incorporates the gender definitions issued in President Trump’s prior order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government Executive Order and further directs the Secretary of Education to prioritize enforcement actions against institutions that require women “to compete with or against” males. In response to this order, the NCAA has announced changes in its transgender student-athlete participation policy to “limit competition in women's sports to student-athletes assigned female at birth only.”

Antisemitism

Under President Trump’s executive order regarding Additional Measures to Combat Anti-Semitism, the Attorney General is directed to provide an inventory and analysis of all court cases against or involving institutions of higher education alleging civil rights violations “related to or arising from” antisemitism after October 7, 2023. The Secretary of Education is also ordered to create a report of all Title VI complaints and administrative actions related to antisemitism “pending or resolved” after October 7, 2023. Pursuant to this executive order, the Department of Education has already announced investigations into five higher education institutions where “widespread antisemitic harassment has been reported.” The order also encourages institutions to “monitor” and “report” foreign students and staff who may be subject to deportation under 8 U.S.C. § 1182(a)(3) and includes a fact sheet accompanying the order stating that President Trump would “cancel the student visas of all Hamas sympathizers on college campuses.” Institutions should be prepared to face inquiries related to their handling of campus protests and ensure that their policies, procedures, and enforcement practices align with Title VI requirements and the guidance related to prohibiting antisemitism and other forms of discrimination.

Immigration

President Trump has also issued a number of orders related to immigration, including orders Protecting the American People Against Invasion and Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. These orders call for a review of contracts, grants, and agreements between the federal government and “non-governmental organizations supporting or providing services, either directly or indirectly, to removable or illegal aliens.” The orders also direct the Attorney General, Secretary of Homeland Security, and the Director of National Intelligence to identify all resources that may be used to ensure that all vias applicants, including F-1 and J-1 students, are “vetted and screened to the maximum degree possible.” The administration also issued a directive repealing the Biden Administration’s “sensitive locations” policy, which prohibited raids by Immigration and Customs Enforcement or Customs and Border Protection agents at schools and other protected areas. Given the Administration’s focus on immigration enforcement, institutions should prepare to work with international students to ensure compliance with visa requirements and coordinate with relevant campus offices and safety teams to ensure a coordinated action plan is in place in the event of an immigration enforcement action.

Additionally, the America First Policy Directive to the Secretary of State executive order, which requires the State Department to align policies and programs to “put[ ] American and its interests first,” may impact international exchange programs and study abroad programs funded by the Department of State.

What’s Next

How federal agencies will implement and enforce these orders is unclear. Additional uncertainty regarding implementation is caused by the Trump Administration’s recent announcement that it is drafting an executive order to eliminate the Department of Education, which will require Congressional approval. 

While awaiting guidance, colleges and universities should consider the following:

• Review DEI and Title IX Policies: Higher education institutions should review courses, activities, protocols, and procedures that relate to DEI and evaluate whether they comply with existing antidiscrimination laws and institutional goals. Institutions should also consider a coordinated communications strategy with students, employees, and other stakeholders about any changes made to institutional policies or practices in response to these orders or other policy changes. For those wishing to learn more about the order Ending Illegal Discrimination and Restoring Merit Based Opportunity and its potential impacts, Crowell attorneys recently took a deep dive on the order here.
• Prepare for Campus Protest Inquiries: Given the likelihood of investigations and lawsuits related to combatting antisemitism, higher education institutions should be prepared to answer inquiries related to their policies and actions related to campus protests. This is especially true for colleges and universities that reached resolution agreements with the Biden Administration’s Office of Civil Rights (“OCR”), given that the current Department of Education has stated that these agreements did “shamefully little to hold [ ] institutions accountable.” Higher education institutions should also review student training materials and reporting channels related to antisemitism and other forms of discrimination to ensure compliance with federal law.
• Consider Plans and Policies for Immigration Enforcement Actions: Higher education institutions should consider creating an action plan for immigration enforcement actions on campus, including informing students, employees, and staff of their rights and obligations and working with campus safety teams to ensure compliance with federal law.

Given that many of these orders and policies are expected to face legal challenges, it is important to follow developments and consult with legal counsel as needed to mitigate risk. Please contact one of the below attorneys or your regular Crowell contact to learn more.