Week in Review – The EEOC Continues Changing Course, and the DOE Had a Busy Week, With a Particular Focus on Title IX

Our “Week in Review” alerts seek to highlight the important activity related to labor, employment, and education each week from the new presidential administration. The pace at which President Trump issued executive orders and implemented changes across federal agencies in his first weeks in office was, at times, dizzying.

While the pace has somewhat slowed, important changes continue to occur within the federal government, federal agencies, and courts that have the potential to impact employers and educational institutions. We highlight the important actions from last week below.

The Week in Brief:

(1) The EEOC announced an intent to shift its focus related to “national origin” discrimination under Title VII and to “re-evaluate” its guidance under the Pregnancy Workers Fairness Act;

(2) A federal judge blocked portions of President Trump’s anti-DEI executive orders;

(3) The Department of Education made a string of announcements, including announcements related to COVID-19 funding and charter school monitoring;

(4) The Department of Education Office for Civil Rights launched investigations into Title IX violations related to gender identity in Virginia and Maine;

(5) The U.S. District Court for the Northern District of Texas vacated the already vacated and no longer effective 2024 Title IX Regulations; and

(6) Illinois Superintendent of Education Makes Statement on OCR “Dear Colleague” Letter.

Franczek Insights:

1. EEOC Update – By Rachel Domash and John Swinney

The EEOC recently announced its intention to alter its focus on two anti-discrimination protections. Specifically, the EEOC announced that it will: (1) begin rigorous enforcement of antidiscrimination employment laws against employers that “illegally prefer non-American workers” under Title VI, and (2) reconsider portions of the Pregnancy Workers Fairness Act’s final implementing rules.

National Origin Protections Under Title VII

On February 19, 2025, EEOC Acting Chair Andrea Lucas announced the EEOC will “rigorously enforce” antidiscrimination laws to ensure all workers are protected from national origin discrimination, including American workers. To accomplish this, Lucas stated the EEOC will actively increase enforcement of “employment discrimination laws against employers that illegally prefer non-American workers, as well as against staffing agencies and other agents that unlawfully comply with client companies’ illegal preferences against American workers.” In her announcement, Lucas stated that industries nationwide have demonstrated a large-scale, and unlawful, bias against American workers in violation of Title VII. In support of this assertion, Lucas commented that “[m]any employers have policies and practices favoring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”

Lucas’s announcement states that the EEOC will now “crack down” on this type of discrimination and ensure that national origin protections under Title VII apply equally to American citizens. In Lucas’s words, “[a]lthough Title VII’s national origin nondiscrimination requirement generally means that employers cannot prefer American workers, it equally means that employers cannot prefer non-American workers and disfavor Americans.” It is unclear at this time how this announcement will alter the EEOC’s current enforcement actions based on national origin protections. However, the announcement likely signals that the EEOC will begin to actively seek out and prosecute employment practices that it determines disfavor American citizens.

Plans to Re-Evaluate the Implementation of the Pregnant Workers Fairness Act

As we recently reported, there are currently two vacant positions on the Commission due to President Trump’s removal of Democratic Commissioners Jocelyn Samuels and Charlotte Burrows. While those positions remain vacant, the EEOC does not have a “quorum” and cannot rescind prior guidance documents or promulgate new regulations. However, in anticipation of those positions being filled, Lucas recently released a position statement in which she stated the EEOC will re-evaluate its final rules implementing the Pregnant Workers Fairness Act (“PWFA”) once a quorum is re-established at the Commission.

We have previously reported in greater detail on the PWFA rules. But, in short, the final rules require employers to provide reasonable accommodations to pregnant workers or workers who have related medical conditions. Notably, the expansive definition in the current final rules of “pregnancy, childbirth, or related medical conditions” includes, but is not limited to, current, past, potential, or intended pregnancy; termination of pregnancy, including miscarriage and abortion; postpartum depression; and lactation conditions.

Lucas’s position statement notes that the EEOC should reconsider these rules as Lucas believes they are unsupported by law. Specifically, she argues that “the rule fundamentally erred in conflating pregnancy and childbirth accommodation with accommodation of the female sex, that is, female biology and reproduction” due to the expanded definition of the phrase “pregnancy, childbirth, or related medical conditions.”

Legal Challenges to the Pregnant Workers’ Fairness Act

In addition to the EEOC’s potential reconsideration of the PWFA’s final implementing rules, the PWFA is also facing challenges in court. In April of 2024, seventeen state Attorneys General brought a suit in the Eastern District of Arkansas claiming that portions of the PWFA’s final rules related to abortion infringe on the states’ sovereignty and coerce the states to “violate their policies of regulating abortion to protect unborn life.” The suit alleged that the EEOC’s stance on the PWFA would force employers to either facilitate workers’ abortions or face federal litigation. In June of 2024, the complaint was dismissed for lack of standing.

On February 20, 2025, the Eighth Circuit reversed the lower court’s decision, and found that the states do, in fact, have standing to bring the case. The Eighth Circuit did not make a determination as to the merits of the case but remanded it to the lower court for further review.  A separate case challenging the PWFA on constitutional quorum requirements and proxy voting remains pending before the Fifth Circuit.

We will continue to track and report on developments from the courts and at the EEOC as they occur.

2. Federal Judge Blocks Portions of President Trump’s Anti-DEI Executive Orders – By Hailey Golds

On Friday, February 21, 2025, a judge in the U.S. District Court for the District of Maryland issued a decision blocking portions of President Trump’s “Ending Radical and Wasteful Government DEI Programs and Preferencing” as well as his “Ending Illegal Discrimination and Restoring Merit Based Opportunity” executive orders on the basis that their anti-diversity, inclusion, and equity (“DEI”) and anti-diversity, equity, inclusion, and accessibility (“DEIA”) provisions were likely unconstitutionally vague and violate the First Amendment’s prohibition on viewpoint discrimination.

The suit was brought by the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunity Centers United, and the Mayor and City Council of Baltimore. It challenges three provisions contained in both orders: (1) “Termination Provisions” directing executive agencies to “terminate … equity-related’ grants or contracts”; (2) “Certification Provisions” that directed all executive agencies to certify that no government contractor or grantee operates “any program[] promoting DEI that violate any applicable Federal anti-discrimination laws”; and (3) “Enforcement Threat Provisions” directing the Attorney General to identify potential investigations to deter illegal discrimination, including DEI (together the “Challenged Provisions”).

The plaintiffs argued, and Judge Adam Abelson agreed, that the executive orders are unconstitutionally vague because they do not define any of the operative terms, including “DEI,” “equity-related,” “promoting DEI,” “illegal DEI,” “illegal DEI and DEIA policies,” or “illegal discrimination or preferences,” nor did they identify the types of programs or policies the administration considers “illegal.”

The opinion noted that the “Ending Radical and Wasteful Government DEI Programs and Preferencing” executive order has wide-reaching impact because approximately 20% of the nation’s labor force works for federal contractors. Given the vagueness of the order, the affected contractors and their employees would be left with no idea whether the administration would deem their contracts, grants, work, or speech, to be “equity-related.” Similarly, the court said that the “Ending Illegal Discrimination and Restoring Merit Based Opportunity” order did not provide guidance to private sector businesses as to what activities the administration considers “illegal.” Thus, the court found that the Challenged Provisions were unconstitutionally vague on their face, and likely to cause irreparable harm.

The court further found that the Challenged Provisions violate the First Amendment because they leverage funding to regulate speech outside the contours of the funded program itself, and, under the executive orders, the government would be terminating contracts because of the contractors’ speech on matters of public concern. The court noted that, while the Constitution gives the President discretion over policy, a President is not exempt from general provisions of the Constitution.

As such, a preliminary injunction was issued against the Challenged Provisions. The ruling does not, however, block the Attorney General from preparing reports or pursuing investigations related to the executive orders, and the administration has already filed an appeal, so it remains unclear how long the block will remain in place.

3. Department of Education See Another Week of Funding Cuts, Legal Changes – By Reva Ghadge

As previously explained, the Department of Education (“ED”) has seen a multitude of changes in the past few weeks. Continuing this trend, in the last ten days, the ED released another string of announcements that in furtherance of the Trump Administration’s goal to ebb government spending and increase government efficiency.

COVID-19 Funding Now Follows Standard Reimbursement Procedures

On February 19, 2025, the Acting Secretary of Education, Denise Carter, issued a memorandum to all educational institutions receiving COVID-19 relief funds that all future payments would follow “the department’s standard reimbursement payment structure.” In a subsequent press release, the Department stated the change was to effectuate “President Trump’s commitment to increased transparency and accountability regarding federal expenditures.”

While a short statement, the impact of this change is large. Under the CARES, CRRSA, and ARP Acts, educational institutions were able to draw on existing awards to pay for approved services without proving the funds were used for authorized purposes. In other words, educational institutions had access to a pool of money they could use to pay for services to address the impact of COVID-19 on students and student instruction such as extended day programs, assessments to determine academic needs, education-based technology, professional development, and mental health services. Following Secretary Carter’s memorandum, institutions will, instead, be required to expend their own funds and submit receipts to the DOE for reimbursement if they wish to be granted access to awards under CARES, CRRSA, or the ARP. This process is more onerous and will require educational institutions to budget for potential needs (which may or may not be reimbursed), rather than providing educational institutions with the ability to use funds as needs arise.

Charter Schools See Reduction in Federal Monitoring

A press release issued by the Department on February 20, 2025, announced the removal of a Biden Administration requirement overseeing authorized charter schools. The previous administration’s guidance required the Secretary of Education to review additional information provided by some entities, like private schools or universities, on how they approved charter schools. Many of these entities were already approved to create and fund charter schools using state funds. Under the new guidance, the Trump Administration stated, “[t]his action returns educational authority to the states, reduces burdensome red tape, and expands school choice options for students and families.”

Administratively, the Department’s removal of additional reporting requirements will allow approved entities to create and fund private or charter schools with less process than under the previous administration. This decision by the Department echoes the Trump Administration’s agenda to empower states and families to choose the best educational path for their children.

4. Department of Education Launches Investigation into Virginia School Districts and the Maine Department of Education for Alleged Title IX Violations Related to Gender Identity – by Kristen Kinast and Emily Tulloch

On February 12, 2025, the Department announced its decision to open an investigation into multiple Virginia public school districts based on the school districts’ policies and treatment related to transgender students.

This investigation was opened in response to complaints filed by a staff member of America First Legal Foundation against Alexandria City Public Schools, Arlington Public Schools, Fairfax County Public Schools, Loudoun County Public Schools, and Prince Williams County Public Schools. These complaints, which were received by the Department on February 4, 2025, alleged that the school districts’ anti-discrimination policies pertaining to transgender students “provide greater rights to students whose ‘gender identity’ does not match their biological sex than it does to students whose ‘gender identity’ matches their biological sex.” The complaint further alleged that the school districts’ policies related to the use of “intimate, sex segregated facilities, including restrooms and locker rooms,” violated Title IX. Specific policies identified in the complaint included policies about nondiscrimination in education and supporting transgender students.

In its February 12 letter to the complainant, the Department of Education affirmed it will be opening an investigation into whether the policies of these school districts regarding transgender students violate Title IX.

Subsequently, on February 21, 2025, the Department announced that it is also launching an investigation into the Maine Department of Education to investigate allegations that it is allowing “male athletes to compete in girls’ interscholastic athletics” and that it “has denied female athletes female-only intimate facilities,” in violation of Title IX. Maine now joins California and Minnesota as states with their state boards of education being investigated for continuing to allow transgender male students to participate in women’s athletics.

We anticipate the Department will continue to open more investigations into school districts and other education and education-related organizations on similar bases in the coming weeks.  For more details regarding these enforcement actions and potential implications for schools in Illinois, please see our previous alert.

5. DeJa’Vu: 2024 Title IX Regulations Vacated by Federal Judge in Northern District of Texas – By Emily Tulloch

On February 19, 2025, a Judge in the U.S. District Court for the Northern District of Texas issued an order in Carroll Independent School District v. U.S. Dept. of Education, vacating the Final Rule that implemented the 2024 Title IX Regulations. The Court held that the 2024 Title IX Regulations were contrary to law, arbitrary, and capricious, because expanding the definition of “sex” to include “gender identity” fundamentally “eviscerates” the distinction between male and female, which the Court described as being “at the heart” of Title IX.

In addition, the Court held that the 2024 Title IX Regulations violated the First Amendment because they required recipients of federal funds, including teachers, to adhere to ideological points of view that they may find unacceptable. To illustrate this point, the Court used the example of a teacher violating the 2024 Title IX Regulations’ prohibition on hostile environment harassment by repeatedly failing to use a student’s gender-identity-based pronouns. Therefore, the Court concluded that the 2024 Title IX Regulations forced recipients to be “federally commandeered censors of speech,” by requiring or prohibiting “certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.”

Practically, the decision out of the Northern District of Texas does not change the current status of the 2024 Title IX Regulations. A decision from the Eastern District of Kentucky already vacated the 2024 Title IX Regulations on January 9, 2025. The Department also previously confirmed that it would be enforcing the 2020 Title IX Regulations, not the 2024 Regulations. Despite the current Title IX landscape essentially making the issues in Carroll moot, the Northern District of Texas issued the decision to safeguard the jurisdiction from being required to enforce the 2024 Title IX Regulations again, should the decision out of Kentucky be challenged and reversed.

6. Illinois Superintendent of Education Makes Statement on OCR “Dear Colleague” Letter

We recently reported on the Dear Colleague Letter issued by the Department of Education’s Office for Civil Rights (the “OCR Letter”) warning 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. On February 19, 2025, less than a week after the OCR Letter was published, Tony Sanders, the Illinois Superintendent of Education, issued a statement addressing the Letter.

In the statement, Superintendent Sanders first points out that Illinois law prohibits discrimination based on specific protected classes, including race and national origin, and admonished Illinois school districts that they are “bound to follow this law” and that schools’ “board policies should affirm the same.” He also highlighted ISBE guidance affirming that students are entitled to equal access to a basic public elementary and secondary education, regardless of their actual or perceived immigration status, even in instances when a student may be undocumented. Superintendent Sanders emphasized that the OCR Letter explicitly states that it “does not have the force and effect of law and does not bind the public or create new legal standards.”

In summation, Superintendent Sanders said that “[n]othing in any executive order or ‘Dear Colleague’ letter should change” Illinois’ commitment to affirming, uplifting, and supporting all students and families.