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The Wall Street Journal reported on Wednesday, March 5, 2025, that it had reviewed a draft executive order directing Secretary Linda McMahon to take all necessary steps to facilitate the closure of the Department of Education (DOE) and return authority over education to the states and local communities, to the maximum extent allowed by law. The maximum extent allowed by law, however, remains a point of contention with the bounds of the executive authority still being tested. Institutions of higher education (IHEs) can expect challenges to begin swiftly. However, as of 3:30 p.m. EST, March 7, no executive order has been released.
We will discuss the potential impact of the executive order on IHEs in a webinar promptly after the release of the order. Assuming a release of the order during regular business hours, we anticipate the webinar will occur on the day the order is released. To register for the webinar and receive a calendar invitation once the date and time have been decided, click here. If you have already registered, no further action on your part is necessary and you will automatically receive the Outlook appointment. In the meantime, we are providing an overview of what the order may include and its possible effects.
Possible Implications
Regardless of the order’s precise language, litigation is virtually certain. IHEs and other interested parties will ask courts to enjoin the enforcement of the order. While legal challenges unfold, IHEs should prepare for potential disruptions within the DOE and in the programs it oversees. For example, President Trump has indicated that some programs may be transferred to other governmental agencies under his plan to dismantle the DOE. As a result, changes or delays in responses from federal employees are likely.
The major shifts and staffing cuts could result in fewer non-Title IV Office for Civil Rights (OCR) investigations, but increased investigations and enforcement actions are not off the table entirely. Secretary McMahon’s commitment to reallocating certain functions to other agencies, along with her stated focus on enforcing Title VI in cases of antisemitism, could require IHEs to have more interaction across agencies. Such as, with the Department of Justice’s Antisemitism Task Force, which previously announced it would investigate ten IHEs. On Friday, the Task Force canceled approximately $400 million in federal grants and contracts to one of those IHEs, Columbia University, citing the school’s failure to address persistent harassment of Jewish students.
In light of the current environment in Washington, D.C., major changes at the DOE are highly likely as result of the executive order, even without congressional action. The full extent of those changes will remain uncertain until we see how Secretary McMahon will effectuate the assigned task of dismantling the DOE. With existing regulations and guidance likely to be fundamentally altered or eliminated, IHEs can expect that their internal policies and practices will require a major overhaul.
Based on currently available information, we believe the most likely scenario is a skeleton Department of Education with minimal staff performing only those statutorily required functions that could not be removed without congressional authorization. However, we encourage you to contact any member of our Higher Education Team if you have specific questions or concerns as we navigate the changing legal environment in Washington, D.C. |
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