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Louis Freedberg: 0:04
Welcome to Education on the Line, a podcast series focused on the latest threats to public education and strategies for confronting them. I'm Louis Freedbe. As many of you are aware, the Trump administration is using a host of civil rights laws, often interpreted in novel ways, to go after education institutions at all levels. Last week, we looked at the administration's attacks on public schools around gender issues and whether transgender students should have access to bathrooms matching their preferred gender identity. Unfortunately, those attacks have accelerated since then. Today, I'm pleased to welcome Shep Melnick to make sense of the many laws and statutes that the Trump administration and the Department of Education in particular are using as a weapon to cut off federal education dollars to a growing number of school districts. Shep Melnick is Thomas Tip O'Neill Professor of American Politics at Boston College and co-chair of the Harvard Program on Constitutional Government. He is the author most recently of the Crucible of Desegregation, The Uncertain Search for Educational Equality, and Transformation of Title IX, Regulating Gender Equality in Education. He is currently finishing up on a book on education and the civil rights state. Welcome, Shep Melnick.
R. Shep Melnick: 1:32
Thanks for inviting me. It would be great if you could just quickly set the table and give us a quick primer on the key civil rights statutes that are being used against public schools.
R. Shep Melnick : 1:42
Sure. Let me start with Title VI and Title IX, which are for educational institutions the most important. Title VI is part of the Civil Rights Act of 1964. And it simply says that institutions that receive federal financial assistance shall not discriminate on the basis of race or national origin. That statute also sets up procedures for establishing when institutions have violated that standard, they can lose federal funding. The other is they could be referred to the Department of Justice for court action against them. The statute does not say what discrimination means. It also does not say what national origin means. Those determinations have been made in guidelines issued by the federal government these days, especially the Department of Education, but also the Department of Justice. So a lot of the debate about Title VI is number one, what those vague requirements mean, and what penalties will be assessed against institutions found to be in noncompliance. The other big statute that is important for schools is Title IX, which is Title IX of the Education Amendments of 1972. And it states that any educational institution that receives federal money cannot discriminate on the basis of sex, with the same procedures and the same penalties. For many years, the main issue there was athletics, for the reason that we we have separate but equal in education for sports, something we do not allow for race for obvious reasons. But starting in the Obama administration, the issue of sexual harassment, sexual violence really came to the fore, and also the issue of how we deal with the question of gender identity. And I would say in both of those areas, the statute itself says virtually nothing. So all of it revolves around what the Department of Education, what the Department of Justice says those statutes mean. And Title VII is a prohibition on racial and sex discrimination in employment. In the past, I'd say when Title IX was first being applied, the issue of employment was very important because women were being discriminated against, especially in higher education, in a really blatant and open way.
Louis Freedberg: 4:24
One of the things that you noted in your article in Education Next is, and this was through August, that the Trump administration had initiated 130 investigations against institutions of higher ed, and only 30 against K-12 schools. And in fact, most of the 30 were around the Title IX gender ideology bathroom issue, which we are going to really zero in on. Why do you think that higher ed has been the principal target so far?
R. Shep Melnick : 4:54
It's always difficult to say why the Trump administration did what it did. There's an awful lot of arbitrariness. I would give two reasons. First was that the Trump administration is going after its enemies. Who do they think is among its most important enemies? Higher education and the most visible places like Harvard, Columbia, UCLA. Public schools are not so high up on the enemies list, number one. Number two, I think they're always looking for the low-hanging fruit. And universities really gave them a great opportunity by their failure to take strong action against organizations and students who were engaged in anti-Semitism. And universities often admitted this. Harvard admitted that. And the most important information that the Trump administration had against Harvard was information that Harvard presented. So low-hanging fruit and how high you up on the enemies list. If you look at public schools, as you said, they went after issues involving transgender students, their treatment. Again, that's low-hanging fruit because that was really important for the Trump administration. I don't think that the law is nearly as clear as the Trump administration would like to be on this, but it was an easy way to see what schools, what districts, what states were engaged in activity that they claimed violated Title IX, again, low-hanging fruit. But I would say I think the next stage is going to be that they're going to go after K-12 schools on race issues, especially on racial preferences and on DEI issues. So that'll be chapter two.
Louis Freedberg: 6:37
Okay, so you think that they're not just going to or principally focus on the gender ideology bathroom issues? Because a lot of school districts are vulnerable, particularly in blue states. I mean, in California, school districts are required to allow transgender students to use the bathroom of their preferred identity. Yes. That presumably, if the their Trump administration's interpretation of Title IX is upheld by the courts, that puts every school in California at potential risk. Yes.
R. Shep Melnick : 7:13
I don't want to minimize the importance of that. That will be a continuing effort by the Trump administration. They have been very clear on that. What I would say, though, the courts have been divided on whether Title IX requires schools to respect the gender identity and to assign people to sex segregated facilities on that basis. Some have said yes, some have said no. The further question of whether Title IX requires the interpretation that the Trump administration has given, that is much more questionable. So I think that that issue will eventually be decided by the Supreme Court. It'll take a while. I noticed that uh when Janet Mills, governor of Maine, had a confrontation with the Trump administration, she said, I'll see you in court. And I think that's what many governors and school boards will probably say. I'll tell you, my reading of Title IX is it doesn't say anything about how you treat transgender students. It doesn't mandate what the Obama administration said, the Biden administration said, or the Trump administration. I think it's very likely the Supreme Court will say it's really up to schools to decide this. But we'll see.
Louis Freedberg: 8:29
You have argued that the Trump administration is basically trying to rewrite the civil rights regimen of the past 50 years, which is kind of breathtaking to think about. But that in many ways it was the Obama and Biden administrations that have actually kind of laid the foundation for this expansive approach now being taken by the Trump administration in terms of their interpretation of Title IX and specifically about bathrooms. Could you just give us your thoughts on that?
R. Shep Melnick : 9:04
Over the last 50 or more years, we've developed a fairly extensive set of regulations, interpreting Title IX, Title VI, Title VII, that has tended to increase the power of the federal government. And I think often well beyond anything that anyone who voted for those statutes thought they were doing at the time. The big expansion came during the Obama administration, especially on Title IX, where the regulations, not the statute, but the regulations increased dramatically schools' responsibility to police students, their activities with sexual harassment, with bullying, and also entered the fray on the transgender issue that before 2010 had really never been considered to be part of federal regulation. So you got this fairly expansive set of regulations. And now the Trump administration has said, oh yes, now that transgender issues is on the federal agenda, we're going to switch sides. And now that anti-Semitism is on the federal agenda, which only began in 2005, we're going to really use that as a weapon against institutions. So a lot of the powers that the Trump administration is now wielding were basically invented by administrative regulations earlier in the 21st century. So on the one hand, you can say that this is really a huge change, as indeed it is. On the other hand, it's on the basis of expansions of federal power that were achieved by earlier administrations.
Louis Freedberg: 10:47
Yeah, and I should add that this was the Office of Civil Rights in the Obama and Biden administrations, headed by Catherine Lehman, that the right wing complained about for years. Now, you could argue they are using some of the same tactics. Absolutely. Let me just emphasize that.
R. Shep Melnick : 11:04
The Republican Party, especially starting in 2016, was vehement in their opposition to the expansion of Title IX. They even had a part of the 2016 Republican platform that denounced it and said it's a cultural revolution. And now they are using those powers in exactly the same way that they criticized. I'll add one other item here. I kept saying guidelines, according to the Administrative Procedure Act, all this stuff should have been done through rulemaking procedures, which is slow. I think it's careful, it allows participation, it requires explanation. Republicans really denounced Democrats for not using rulemaking. I think they were right about that. But of course, then what are they doing now? They're doing the same thing only on steroids because instead of even just using agency guidelines, they're using executive orders with even less procedure, less input, and less certainty. So, yes, exactly. They're doing exactly what they criticize others for doing.
Louis Freedberg: 12:11
And so just let me ask you, because one of the big dilemmas facing higher ed, but also K-12, obviously, is how to respond. I mean, filing lawsuits or try to negotiate. There are some school districts that have filed lawsuits, like Denver. They try to file a suit against the administration around its immigration policies. Well, that didn't go anywhere. But you are suggesting that in terms of the Title IX issues around bathrooms specifically, which now is the major target, at least for now, that there is a lack of clarity. So there may be some legal remedies in that regard.
R. Shep Melnick : 12:50
This is a dilemma that all educational institutions face. I'm a Harvard alum, so I get all of this information from the two sides of alumni groups, some saying, you know, fight, don't give an inch, others saying this is an opportunity to make some beneficial changes and you're going to have to negotiate. Because when there's this much money at stake for universities, they've got to look for some way to avoid extreme penalties. And I should say that one of the unique features of this administration is their extent to which they're willing to cut off funds. The penalty for not complying with Title VI and Title IX legally has always been cutting off federal funds. But except for a few recalcitrance southern school systems in the 1960s, we've never done that because that hurts the students that you're trying to help.
Louis Freedberg: 13:45
It's never been done since the 60s, as far as you know.
R. Shep Melnick : 13:48
Absolutely. There is one minor case for Title IX that they refuse to give a new grant because they claimed that a school system was not following Title IX, but they never take back existing money. I mean, they never take back Title I money, they never take back IDEA money, you know, the big pots of money they don't didn't do until now. And the difference is that for the Trump administration, taking away money is not a bug. That's great for them. You know, we should we can save money, we can really take money away from especially universities. I will say that I think it's a little bit different for public schools, because if you take money away from public schools, usually states and localities have to come up with the difference. And then you're going to get political opposition, often from Republican governors, Republicans, say legislatures, Republican school districts. So it's more difficult politically for them to do that, but they're quite willing to do so, as they have done, I guess, against three or four school districts within the last week or two. So that is really a huge change. And that makes the choices more difficult for schools because it takes a long time to mount a courtsuit. The outcomes are uncertain, and meanwhile, you're going to lose all this money. And we'll see the extent to which courts were willing to stay these funding cuts in the meantime. But it's it is a difficult choice.
Louis Freedberg: 15:21
That's a huge change. And you wrote about H.E.W. Secretary Joseph California, who is Education and Welfare Secretary under Jimmy Carter. He compared cutting off funding to opting for decapitation instead of plastic surgery to eliminate facial disfiguration. And I guess the idea was that you could take away the money, but that doesn't necessarily help the victims or the complainants. But the Trump administration doesn't appear to care about that, whether they are helping the so-called victims.
R. Shep Melnick : 15:56
Yes. I would go even further. It's not that they don't care about the victims, it's that they want to impose harm on their enemies. And if they view their enemies as being city of Chicago in the school system, liberal school districts in the suburbs of Washington, D.C., then that's not just something they don't care about. That's something that they would take lee in doing.
Louis Freedberg: 16:19
Trevor Burrus, Jr. One of the things that has been very daunting for school districts is the demands are being made with almost no time to resolve them. The Trump administration doesn't appear to want to negotiate or reach a settlement. In fact, they're saying you have 10 days to resolve this, or 30 days, with very expensive demands. Yes. Almost impossible for school districts to respond within that length of time. Even though, and this is what the Denver schools argued, the administration's own manual of procedures said you should have like 90 days to resolve a dispute along these lines.
R. Shep Melnick : 17:01
It's not just the guidelines of the agencies themselves. The statutes say that. The statutes say that. The statutes lay out that you have to have an investigation, which often they haven't had. You have have to engage in negotiations. And then if you decide that they are still in violation, then you have to give them a right to respond. You have to notify Congress and wait 30 days. And only then can you cut off funding. So these procedures that they're using are clearly in violation of their own guidelines and the underlying statute. I will say that one of the things that was really quite shocking was that in the Harvard case, they didn't follow these procedures. The judge, Judge Burroughs, Allison Burroughs, pointed that out in her opinion in the Harvard case. Meanwhile, the administration came back and said, oh, we're not doing this under Title VI or Title IX. We are using our inherent authority to cut off a federal grant whenever we want. We don't have to follow any of these procedures. And in her opinion, she said that's an important violation of academic freedom because it's so open-ended. So it could be that if the administration is going to try that same argument against public schools, that some of the same issues will come up. And I know I live in New Hampshire, and there have been two important decisions in New Hampshire. One about the federal law, one about a state law, saying that these very vague claims that you can't teach DEI have been struck down because the administration claimed this very broad authority, which would have a chilling effect on academic freedom.
Louis Freedberg: 18:47
One of the things that also strikes me, I mean, these are complex legal issues. The Trump administration now has the full force of the Justice Department with thousands of attorneys. How does a small school district or any school district really compete in that kind of environment?
R. Shep Melnick : 19:07
That's a crucial question. I mean, we're seeing that not just in education, we're seeing that with law firms, we're seeing that with the media, we're seeing it with attacks on Comey and other political enemies of the Trump administration. This is an extraordinarily serious problem. I suppose on the bright side, the number of people now in the Justice Department is shrinking very quickly, and the quality of people in the Justice Department is shrinking even more quickly, and they're going to lose a lot of cases in court for that reason. But you're you're quite right. You know, in the meantime, if that funding is cut off, what should they do? I would say that on the transgender issue, I've got a feeling that schools are probably going to concede very frequently because this is a politically unpopular set of policies in most areas, not all areas, but most areas. And the number of students affected is relatively small. I know it's it's a very big ideological cultural issue, but I think that given the pressure, probably a lot of school districts will say, well, this is not a ground we want to die on. I think that the issues involving DEI and use of racial proxies in the long run is going to be much more important because that's going to strike much more at the heart of what schools do, how they handle issues of low-income students, how they deal with issues of what they teach in the classroom. And there's such a direct conflict between what the Trump administration is demanding and the requirement that you know is in federal law saying federal government should not have any control over curriculum. And of course, they are trying to exert control over curriculum.
Louis Freedberg: 20:53
In our last podcast, I did ask the superintendent of Denver, Alex Merrero, you know, these bathroom policies do affect a small number of students, a very small number of students. And wouldn't it be easier to go to those students and say, listen, we don't want to do this, but we are facing losing $100 million, which could affect your education in much more severe ways than what bathroom you use. And he said, no, he wasn't going to do it. He says, I'm not going to erase those children, he says, which is very powerful.
R. Shep Melnick : 21:28
When these issues are put so clearly in terms of the basic identity of students, it's hard to compromise. And I would hope that, you know, one possibility is that schools can think of ways of splitting the difference, you know, more individualized bathrooms. I notice these days a lot of restaurants, other places had uh gender-neutral bathroom, uh, to the extent that they can do that. I think at sports a little bit more difficult, but you're right that there is going eventually, some school districts are going to bring this to, you know, get to the Supreme Court. And I think that the Supreme Court will, my guess is that they will say, you know, schools can do whatever they want. They can't be mandated to have uh go with gender identity. They can't be prohibited from doing that. We'll see. But as I said, in the meantime, I think the other thing is going to be a much more difficult question that goes to the heart of what schools do involves these issues about race and racial proxies, because the Trump administration has taken the Supreme Court's decision basically saying that Title VI and Title VII require colorblindness to an extreme, saying that anything that is correlated with race you can't take into account, which is a very extreme position and really puts into question so much of what schools have tried to do to improve the educational opportunity of low SES students, students with disabilities, it really goes to the heart of schools' understanding of their very being.
Louis Freedberg: 23:12
And I know this is an issue in higher ed. Could or should school districts somehow band together to try to push back on some of these issues? I I don't have a clear sense of how that would work or how it could work, but would that make a difference?
R. Shep Melnick : 23:30
That's an interesting question. Let me just say that one thing that we've seen in the past with growing frequency is state attorneys general banding together and bringing lots of suits. So you have Republican Attorneys General that challenge the Biden administration's Title IX regulations. You have Democratic Attorneys General. What might be interesting is if in some of these states, like in California or in Colorado, it could be that you could have school districts banding together with the help of state attorneys general. There might be some combination of that. Because it's been very, very rare for school districts to join together. It's very common for attorneys general. So we might be entering into a new area of litigation in which your strategy somehow comes into being.
Louis Freedberg: 24:22
I mean, because really universities with large endowments are one thing. And even Harvard must be spending huge sums of money on legal fees. But for a small school district, any size school district, really, almost impossible to contemplate what you would need to take on these issues on your own. Absolutely.
R. Shep Melnick : 24:44
And uh it requires not just good lawyers and requires money, but requires the luxury of time. And if you are losing a lot of money while you're litigating these things, that can be very difficult. I guess I one thing I would point out, we read a lot about all of these judicial injunctions issued on a variety of issues, and stays issued by appellate courts or by the Supreme Court. So one of the big issues here is the role of federal district courts. And the reason that that is so controversial is because there's a lot of forum shopping. That is, plaintiffs looking for a court that will be sympathetic to them. But one of the advantages schools have is that schools that are most likely to be at odds with the Trump administration are more likely to be in blue states. And blue states are more likely to have judges who will be sympathetic to their claims. So there could be ways in which there could be coordination of trying to find the school districts in a judicial district where they're most likely to win and to get to get a stay, to get an injunction against cutting off funds.
Louis Freedberg: 25:57
Before I let you go, I just wanted to get one last thought from you on the fact that these are actually still early days in the administration, not not even a year in a four-year term. And so what is your sense that the pressures are just going to increase and become more complicated? They appear to have a lot of time to implement this very, very expansive agenda. So how do school districts kind of face the future or kind of pace themselves to get through this?
R. Shep Melnick : 26:31
We've only been eight months into the Trump 2.0. It really it seems like a century. So much has gone on. When the Trump administration 2.0 started, they were just kind of lashing out. That was particularly true against Columbia and against Harvard. They were making ridiculous claims. Their legal arguments were pretty weak. And I'm inclined to think they're just kind of engaging in performance. What's happened, I think, starting early summer, was that they started to get a much more coherent legal strategy. So, for example, when they issued really outrageous guidance from the Department of Education that was over that was stayed by courts, then the Department of Justice issued more canny guidelines saying, we're not saying you have to do this, but if you go our way, you're not going to lose federal funds, which is hard to challenge in court. I think that they are starting to devise a much more coherent strategy that has come out in the last several months. I think what things will get harder for schools. This administration, uh I'll just be uh candid here, is a combination of clowns and extremely sophisticated, very shrewd people. They have developed a very sophisticated strategy for basically impounding funds, for cutting off grants, for firing people, for closing agencies. Not all of those will succeed, but they are much better at this now than they were just a few months ago. And that's why I called my article from retribution is kind of striking out to developing a more coherent legal strategy, some of which will not survive, some of it I think will. And then the big question after that is how long will that last? If it ends another three and a half years, probably. And after that depends on who gets elected president. But I will just add one other thing, which is how odd it is that the Trump administration has been so aggressive in imposing federal mandates. At a time where it said we want to close the Department of Education, we want to hand power back to state and local governments. They have two agendas that are quite in conflict here. And how those are going to be resolved is something we'll have to see over the next couple of years.
Louis Freedberg: 29:02
I look forward to staying in touch with you on what will be an ongoing battle, at least for the next three and a quarter years, and perhaps longer. On that note, we have to bring this episode of Education on the Line to a close. I want to thank Chef Melnick for joining us today. He's the Thomas Pip O'Neill Professor of American Politics at Boston College and co-chair of the Harvard Program on Constitutional Government. He is the author most recently of The Crucible of Desegregation, The Uncertain Search for Education Equality, and Transformation of Title IX Regulating Gender Equality in Education. Our producer is Kobe McDonald. Our advisor is Pedro Neguerra, Dean of the U. USC Rossier School of Education. Also, thanks to our sponsors, the Hewlett Foundation and School Services of California. Please let us know how your school district is navigating the conflicting demands of local district policies, state laws, and pressures from the Trump administration to close gender-neutral bathrooms and on a host of other issues. And please subscribe to Education on the Line wherever you get your podcasts. I'm Louis Freedberg. Thanks for joining us today.

The Trump administration is so far using Title IX as the principal weapon to attack public schools: principally against school districts with gender-neutral bathrooms. But its use of civil rights laws could soon expand to using Title VI laws and regulations to go after schools on race-related matters.

That's the view of education and civil rights expert R. Shep Melnick, professor of American Politics at Boston College and co-chair of the Harvard Program on Constitutional Government, in conversation with Louis Freedberg. Melnick provides a primer on what Title IX and Title VI actually say -- and how the Trump administration is building on their expansive interpretations by the Obama and Biden administrations.

What sets the Trump administration apart from previous administrations is that itseems intent on cutting off funds to school districts that don't comply with often impossible demands --without any serious effort to negotiate settlements with them. That has not happened to any significant extent since the 1960s, when school districts refused to integrate after Brown V. Board of Education. In this lively discussion, we explore strategies for school leaders to handle threats to school funding that are likely to increase in intensity in the coming months and years.