Trump Administration Attempts to Rush Changes to Civil Rights Regs

The Trump administration is attempting to use a process known as direct final rulemaking to surreptitiously strike long-standing civil rights protections under Title IX, Title VI and Section 504 without going through the notice-and-comment period typically required for new regulations, advocates say.

Also unusual—the Department of Energy is issuing the regulations. But though it’s atypical for DOE to spearhead regulations related to education, experts say, agencies do have the authority to make regulations related to entities that receive funding from them. About 300 institutions of higher education receive funds from the DOE and would have to comply with the new rules, said Ray Li, policy counsel at the Legal Defense Fund and former civil rights attorney at the Education Department. (The department did not respond to a request for comment.)

Direct final rulemaking started at the Environmental Protection Agency in the early 1980s as a way to pass “noncontroversial” regulations on an expedited timeline and has since been used to pass thousands of regulations at various agencies. These regulations require a brief comment period, and if no one submits a “significant adverse comment” against the rule in that period, it automatically takes effect.

In mid-May, DOE quietly issued about a dozen DFRs, including four that relate to equal rights in education, that advocates argue are much too significant and controversial for the process, which is usually reserved for matters like changing a few words or numbers in a regulation, according to Maha Ibrahim, senior attorney for Equal Rights Advocates, a gender justice nonprofit. (The comment period on the rules closes today.)

One of the DFRs would change Title IX regulations regarding sports teams, removing a clause that requires institutions to allow students to try out for the other gender’s team if there is no equivalent for their gender. The change seems to be intended to stop transgender student athletes from playing on teams that align with their gender, with DOE officials writing in the rule that the current rules “ignore differences between the sexes which are grounded in fundamental and incontrovertible reality while also imposing a burden on local governments and small businesses who are in the best position to determine the needs of their community and constituents.”

“The modification also aligns the rule with Presidential direction under E.O. 14201 ‘Keeping Men Out of Women’s Sports,’” it continues.

But women’s rights advocates argue that the regulation is likely to impact many more cisgender women and girls; about 1,300 high school girls played on boys’ baseball teams in the 2023–24 season in lieu of a girls’ team, for example. But if the DFR is successful, those schools would no longer be required to allow girls on those teams.

“Their rationale … assumes that masculinity is associated with athleticism and strength and that femininity is associated with weakness,” said Shiwali Patel, director of safe and inclusive schools at the National Women’s Law Center. “These are the same stereotypes that historically were used to exclude women and girls from athletic opportunities and which Title IX was enacted to stop.”

Meanwhile, another DFR focused on Title VI would rescind decades-old regulations prohibiting practices that, while not discriminatory on the surface, have the effect of excluding individuals on the basis of their race, known as “disparate impact.”

“The legal doctrine of disparate impact has been incredibly important for ensuring that federal dollars do not help fund discrimination. Discrimination can take many forms, and much of it is not as clear as a ‘whites only’ sign above a water fountain,” Li told Inside Higher Ed in an email.

President Donald Trump previously signed an executive order directing agencies to end the use of disparate impact liability in April.

‘Through the Back Door’

Advocates and legal scholars questioned why the Trump administration would attempt to use the DFR process to make changes that are far outside what the process was created for.

“The things they’ve submitted to this DFR process are clearly controversial and significant on their face. No matter what side you’re on, no matter what you think, you wouldn’t be like, ‘that’s no big deal,’” said Ibrahim. “I’m not in the administration; I can’t tell you for sure this is what their purpose [is], but we’re very afraid, as civil rights organizations, that this is an intentional misapplication of the DFR process to try to avoid public scrutiny, to try to do these things through the back door.”

The Biden administration attempted to change the Title IX regulations to prohibit blanket bans on students participating in the sport consistent with their gender identity. That proposal attracted more than 130,000 comments, and the administration eventually declined to finalize the rule in light of the comments and other court challenges.

Ibrahim also speculated that these DFRs being issued by the DOE was yet another way to avoid drawing attention from opponents. Even though it is legal for any agency that gives money to educational institutions to participate in the enforcement of Title IX, it’s extremely unusual for any agency other than the Department of Education to issue regulations related to Title IX. But Title IX attorneys don’t monitor regulations issued by the DOE the way they monitor those issued by ED, she said, so the administration may have been seeking to avoid raising alarms.

Another DFR issued by DOE would remove regulations from Section 504, the law that prohibits institutions that receive federal funds from discriminating on the basis of disability, that require newly constructed buildings to comply with certain accessibility standards.

Jennifer Mathis, deputy director of the Bazelon Center for Mental Health Law, said the effort to remove this provision, which has existed for decades, came completely out of left field.

“It’s not as if there’s been a drumbeat or a movement [against] new construction accessibility standards,” she said. “I think all of us were taken aback.”

Several of the DFRs have now received thousands of comments, many of which likely fit the definition of “significant adverse comment.” To Ron Levin, a law professor at Washington University in St. Louis who has studied DFR for three decades, that number is indicative of just how incorrectly the administration is using the process.

“DFR is for rules so mundane no one would want to comment on them … if it was five [comments], that would be enough to derail” the process, he said. “Five thousand has more punch.”

He and a group of law professors have submitted comment on the DFRs opposing the administration’s decision to use the process to try to push through regulations that obviously do not qualify as uncontroversial.

Additionally, DFRs that receive “significant adverse comments” are supposed to either be scrapped or go through the normal rule-making process. But DOE has indicated that, if these DFRs are not successful, they will try to use the same method again, writing that in the event they receive such comments, they will respond by “either withdrawing the rule or issuing a new direct final rule which responds to significant adverse comments.”

Mathis said the Department of Justice typically has to sign off on any proposed changes to the rules for civil rights laws such as Section 504, Title IX and Title VI, since the regulations affect other agencies. But it's not clear if DOE went through Justice for these DFRs.

“This seems to be part of a broader deregulatory effort and there have been numerous efforts invoked to try to avoid a public comment process,” said Mathis, who noted that the president also issued an executive order in April that instructed agencies to repeal what he called “unlawful” regulations and to avoid notice-and-comment when doing so. “The concern is not just with new construction. The concern, I think, seems to be, if this is how things are done, this can be used to eviscerate civil rights.”

Civil rights organizations are calling on people to submit public comment on each of the DFRs—though some admit they’re not certain that the administration will recognize those comments and withdraw the regulations.

“It’s creating a record, and that record will help in the lawsuits,” said Ibrahim. “They might ignore it, and if they ignore it, there’ll be good grounds to sue. And there’ll be all these great comments from the public who care about these things that show they illegally ignored it.”