As President-elect Donald Trump prepares for his second stint in the White House beginning January 2025, higher education leaders are bracing for potential shifts in policy that could reshape the landscape of institutions of higher education (IHEs). Below, we take a look at Trump's nominee for Secretary of Education, the future of the department she will likely run, and substantive areas in higher education that are most ripe for significant reform.
Linda McMahon: From the Wrestling Ring to the Classroom
In mid-November, Trump nominated Linda McMahon, perhaps best known as a professional wrestling magnate and former head of the U.S. Small Business Administration (SBA) during Trump's first term, to head the Department of Education (ED).
Her nomination has been viewed as a departure from traditional candidates for the role, including Trump's previous Secretary of Education, Betsy DeVos—a prominent school choice advocate—and the Biden administration's Secretary of Education, Miguel Cardona, who was a teacher, academic administrator, and state commissioner.
There are some clues that may forecast policies McMahon would pursue. In announcing her nomination, Trump said, "We will send education BACK TO THE STATES, and Linda will spearhead that effort." In short, McMahon's charter will likely entail reducing federal oversight of schools, expanding universal school choice, and expanding parental influence over education. Earlier this fall, McMahon endorsed the Bipartisan Workforce Pell Act, which would expand Pell Grant access to educational training programs in fields like nursing, construction, and cosmetology. She also has advocated for apprenticeship programs and vocational training.
She received wide bipartisan support in 2017 to serve as the head of the SBA and should be confirmed easily by the GOP-controlled Senate for this position.
Department of Education on the Chopping Block
On the campaign trail, Trump repeatedly called for the abolishment of the federal agency created in 1979 to oversee funding for public schools and administer student loans, and to send the management of teaching and learning to the states. The idea is not novel and has been a consistent refrain from many conservatives dating back to President Ronald Reagan. However, the likelihood of Trump successfully taking such an action is small. In order to shut the department, Trump would need congressional approval—meaning the House would have to pass a bill and the Senate would likely need a supermajority of senators to also vote in favor. This will likely be an uphill battle.
Title IX Under Review
During his first term, the Department of Education revised Title IX, the landmark civil rights law from 1972 that prohibits sex-based discrimination in any school or educational program that receives federal funding, to provide more due process protections for those accused of misconduct. The Biden administration's final Title IX rule that went into effect on August 1, 2024 loosened some of those protections and simultaneously provided new ones by most notably expanding the definition of sex discrimination to include sexual orientation and gender identity. Trump has spoken with clarity about rolling back some of these protections, which was a central focus of his campaign, and has called that effort a "day one priority."
It is likely that Trump will promptly issue an executive order or statement that will re-start the rule-making process to revise Title IX. It is uncertain whether Trump would ultimately seek to effectively revert back to the 2020 Rule, which did not include gender identity or sexual orientation, or redefine sex in a way that intentionally excludes trans, gay, and non-binary students from protections. There will likely also be a renewed emphasis on due process protections for accused students, such as requiring live hearings and cross-examinations for Title IX proceedings.
It is also expected that Trump's Department of Justice (DOJ) would stop defending Title IX in court or delay proceedings in cases challenging an updated rule as the rule-making process restarts.
The longer-term effects of any Trump administration revisions to Title IX are that there will effectively be two different realities in the U.S. related to gender identity and sexual orientation protections in IHEs. Since states cannot permit laws that are more restrictive than federal law allows, some states would be unlikely to experience significant changes since their non-discrimination statutes are much more protective, while other states will reflect the priorities of the Trump administration. This will make the Title IX landscape more difficult to navigate.
Grappling with New Rules for Transgender Student-Athletes
While the Biden administration revised Title IX as it relates to academics, it punted on the issue of transgender athletes. A proposed rule, which almost certainly would have been politically divisive during an election year, was first floated in 2023. That policy would have banned IHEs from prohibiting transgender athletes to participate on teams consistent with their gender identity, while also permitting them to prevent participation on a case-by-case basis. In doing so, the Biden Administration sought to strike a balance between fairness and inclusion.
In the last few years, more than 20+ states have passed bans on transgender athletes playing on K-12 and collegiate sports teams. In October of this year, Trump said his administration would bar trans athletes from playing on school sports teams that match their gender identity.
As we noted about Title IX in academics, the practical effect of such a decision depends on how the new administration interprets the law. For example, it could take the stance that Title IX offers no protections to trans student athletes, or, in the alternative, it could decide that it would be discriminatory against girls and women to allow trans athletes to participate in girls' and women's sports.
A less likely path than revising and/or re-interpreting Title IX would be to pass legislation to undo the Biden-era regulations. A possible alternative would be for Congress to enact a law that restricts gender to simply male and female; while campaigning, Trump called on Congress to pass such a measure. Should the administration pursue this approach, despite Republicans controlling all three branches of government, reaching cloture in the Senate would require at least seven Democratic senators to side with the 53 Republican senators.
Is DEI DOA?
Trump has said he is willing to withhold funding in response to the promotion of diversity, equity, and inclusion (DEI) initiatives at IHEs. K-12 schools receive very little federal funding, so a president's ability to withhold funds is limited. That is not the case at IHEs, which receive significant amounts of federal dollars.
In a July 2023 campaign video, Trump said he would "direct the Department of Justice to pursue federal civil rights cases against schools that continue to engage in racial discrimination. And schools that persist in explicit, unlawful discrimination under the guise of equity will not only have their endowments taxed, but through budget reconciliation, I will advance a measure to have them fined up to the entire amount of their endowment." In short, Trump is willing to use the power of the purse to chip away at DEI programs on campuses.
Whatever policies the Trump administration pursues related to DEI initiatives on campuses, it comes following the landmark Supreme Court decision, Students for Fair Admission, in which race-conscious admission decisions were found to violate the Fourteenth Amendment. IHEs have already been addressing the fallout from that decision, including preemptively winding down DEI initiatives, and additional pressure from a new Trump administration will likely result in more program eliminations.
Crackdowns on Campus: New Measures to Limit Student Activism
Protests have engulfed IHE campuses over the past year amid the ongoing war in Gaza, harkening back to the 1960s anti-war movement. Those protests, however, have drawn bipartisan ire, with critics stating they violate reasonable time, place, and manner restrictions and violate Title VI regulations, which prohibit IHEs from allowing on-campus discrimination based on race, ancestry, and ethnic characteristics.
There are a series of measures Trump can take to impact unauthorized protests. First, the administration could deport foreign college students in the U.S. on a visa if they openly advocate for a government-designated terror group, or if they are suspended, expelled, or arrested following their participation in protests. Alternatively, the DOJ could pursue federal charges against protestors who target speakers for their religious identities or block access to houses of worship. The administration can also track down the funders of the protests and charge leaders and affiliated organizations with failing to register as agents of a foreign principal with the DOJ.
Whatever policy choices the Trump administration makes, they will be considerably different than the current administration's response to the protest movement, which has de-emphasized law enforcement.
International Students Brace for Change
The 2023-2024 academic year saw more international students studying in the U.S. than ever before—approximately 1.1 million, rebounding from lows during the pandemic. Any changes to immigration law, like limiting visas and foreign workers, could affect these individuals' ability to study in the U.S.
While a central tenet of Trump's campaign was to enact stricter immigration policies, he also has indicated a willingness to keep international students in the U.S. even after they graduate by providing them with green cards. How he would do this remains unclear.
Venable will continue to monitor all labor- and employment-related higher education developments as President-elect Trump takes office. If you are an IHE with questions about how to plan for the new administration, contact the authors of this article or any other attorney in Venable's Labor and Employment Group.