EDUCATION
LOOKING AHEAD TO 2025
MORE OF 2024 IN REVIEW
Focus on State Autonomy Over Education… But Also on Parental Rights
2024 PREDICTIONS RECAP
Some Good Title IX News for Private Schools
President-elect Donald Trump has promised to close down the U.S. Department of Education and has said that Linda McMahon, who Trump announced on November 19 as his nominee to lead the agency, will fight tirelessly to expand “universal school choice” to all states. We will see the Trump administration give states more control over schools, yet also push for more parental empowerment in education, a movement that has swept across red states in recent years.
A federal appeals court ruled in March that Title IX does not apply to a private school based purely on its nonprofit status, restoring the status quo that had been in place for decades for private schools in Maryland, Virginia, West Virginia, North Carolina, and South Carolina. The decision could influence other courts to follow suit on an issue that has courts split across the country. More Good News for Religiously Affiliated Higher Educational Institutions In a rare rebuke of its own General Counsel, the National Labor Relations Board in September rejected an invitation to flip-flop on its own precedent and will instead continue to apply a simple, bright-line test when determining whether it has jurisdiction over religiously affiliated higher educational institutions. The Board’s recent decision is welcome news to schools. Due Process Rights Became a Hot Topic What must schools do to satisfy their due process obligations? In March, a federal appeals court sided with a medical school by holding that it did not violate a resident’s due process rights when it dismissed her from its residency program, which is run by a public university. But a California jury hit a private school with a $1 million verdict in May for expelling high school students without due process – affirming that California private K-12 schools (including religious schools) must comply with the state’s “fair procedure” standard before imposing discipline on students. Private schools in other states can apply this standard as a best practice, even if the state does not require it.
Some Highly Anticipated Title IX Changes Arrived While Others Did Not In line with our predictions, the Department of Education finally released new Title IX regulations in April that expanded Title IX in various ways and significantly changed how institutions must respond to sexual harassment and discrimination claims. The new rules took effect August 1 – but not for everyone, thanks to ongoing litigation across the country. In September, the DOE released guidance to help colleges and universities comply with pregnancy- related aspects of the new rules. To our surprise, however, the DOE has not yet finalized a rule addressing gender identity in athletics.
More Support for Religious Liberty The first Trump administration was hugely supportive of religious liberty and religious exemptions, and we expect the same from the second one. For religious schools, we will see 2025 bring some combination of broader support for religious schools enforcing religious tenets, and we may even see broader interpretation of the Title III ADA exemption, and relaxed requirements for the ministerial exemption provided by the Constitution. Immigration Reform Will Significantly Impact Schools The incoming Trump Administration has pledged the largest deportation operation in U.S. history, as well as the end of Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) for several countries. Schools and their student bodies will be particularly impacted. While schools can currently enroll K-12 students regardless of immigration status, it’s unclear whether that option will remain in 2025. Expect to see movement towards using school enrollment as another “opportunity” to ask about immigration status. New Title IX Rules Will Be Rolled Back, But States Could Take Protective Measures The Biden administration’s Title IX changes will be jettisoned or significantly scaled back under Trump. And while there’s never been federal protection for private school transgender students (other than at those schools subject to Title IX), be aware of any applicable state laws and anticipate that some states will respond to the expected Title IX cuts through proactive legislative changes. Increased Scrutiny of Diversity and Inclusivity This year we saw courts start to define the boundaries of permissible DEI programs in the aftermath of last year’s SCOTUS decision limiting “race conscious” programs such as affirmative action in college admissions. Some of these decisions, along with Trump’s clear stance against DEI initiatives, may cause concern for schools that provide affirmative action opportunities. They also serve as a reminder to review your financial aid, fellowships, and other inclusion programs to ensure they comply with federal equal rights law.
SCOTUS Declined to Weigh in on Transgender Bathroom Policies
We predicted that the Supreme Court could resolve a division among federal appeals courts regarding whether schools can require students to use only the bathroom that corresponds to their biological sex or a gender-neutral bathroom. But in January the Court declined to hear a public school district’s appeal to a 7th Circuit ruling in favor of a transgender student. Further, the new Title IX rules prohibit federally funded schools from denying transgender students access to facilities, such as bathrooms or locker rooms, that align with the student’s gender identity (though, as mentioned above, the rule has been blocked in certain states). HOW’D WE DO ON OUR PREDICTIONS? We got the predictions SOMEWHAT RIGHT
Kristin L. Smith
Jennifer B. Carroll
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Houston Partner and Co-Chair, Education Industry Group klsmith@fisherphillips.com
Fort Lauderdale Partner and Co-Chair, Education Industry Group jcarroll@fisherphillips.com
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