Administrative Variability & The Price of Title IX Compliance on Minority-Serving Institutions

The Department of Education (“ED”) enforces civil rights in education through Title IX.^[1] Title IX prohibits sex-based discrimination in federally funded educational programs, and promotes inclusion in higher education.^[2]  Significantly, Title IX enforcement depends on the executive branch controlling the ED, as this power rests with both the Department of Justice and the ED’s Office for Civil Rights (OCR).^[3] Historically, judicial enforcement of statutes like Title IX relied on agency interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which required judicial deference to executive agencies when statutes are ambiguous.^[4]  However, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo overruled Chevron deference, holding that while courts must interpret statutory text, they may now do so independently of agencies, which now receive only Skidmore v. Swift & Co. respect, under which an agency’s interpretation is persuasive only to the extent that it has the “power to persuade.”^[5]  The OCR retains the authority to investigate complaints, issue guidance, and condition federal funding on compliance, enforcing Title IX as they deem reasonable.^[6]  This discretion, combined with Title IX’s breadth, makes protections dependent on executive priorities, impacting marginalized students in noncompliant institutions.^[7] 

Presidential administrations have repeatedly reshaped Title IX enforcement.^[8] In 2011, the Obama administration issued guidance clarifying schools’ obligations to address harassment and assault, requiring schools to use the “preponderance of the evidence” standard in sexual misconduct cases, pushing academic institutions to address harassment before it became “severe or pervasive.”^[9] Subsequently, the first Trump administration rescinded that guidance, instead narrowing the definition of actionable harassment to conduct that is “severe, pervasive, and objectively offensive,” which limited schools’ responsibility to investigate and curbed the scope of protected student claims.^[10] The Biden administration then implemented expansive regulations to restore and broaden protections to the Obama administration’s standards, reaffirming schools’ duty to investigate a wider range of misconduct and expanding sex discrimination to include sexual orientation, gender identity, and pregnancy-related conditions.^[11] Biden’s regulations also reintroduced the “preponderance of the evidence” standard.^[12] In 2025, when Trump returned to office, he abandoned the Biden framework to reinstate his 2020 rules and narrowed the definition of sex.^[13] This vacillating approach leaves students uncertain about rights and compliance, making Title IX protections contingent on executive priorities.

The U.S. Department of Education significantly influences equity in higher education because federal funding disproportionately flows to low-income students and under-resourced institutions.^[14] When ED enforcement is inadequate, marginalized individuals suffer, though courts recognize private litigation and the right to collect damages as an essential tool to enforce equity.^[15]  The ED’s failure to intervene left five former Black female students at Howard University— a historically Black college—without adequate institutional support or federal oversight to address their Title IX claims.^[16] Without meaningful ED remedies, the students ultimately turned to litigation against the school, alleging that the university’s mishandling of their reports contributed to their declining academic performance and ongoing emotional distress.^[17]

Beyond individual claims, the ED’s funding decisions and enforcement discretion have profound consequences for entire institutions, particularly those that serve marginalized communities.^[18] Federal funds for Historically Black Colleges and Universities (HBCUs) and Hispanic-Serving Institutions (HSIs) fluctuate with each administration’s priorities.^[19] Recently, for example, the ED withdrew federal funding from HSIs to combat racial and ethnic quota-making.^[20] In one lawsuit, plaintiffs representing Tennessee’s public colleges argued that all of the state’s institutions serve Hispanic students, yet none receive federal HSI funding because they fail to meet the ED’s “arbitrary quota” of twenty-five percent Hispanic enrollment.^[21] Minority-serving institutions are designed to support underrepresented students.^[22] Now, ED funding is reshaping its obligations.^[23] Wealthy universities with strong endowments may withstand reduced oversight, but minority-serving institutions like HBCUs that require federal aid are left vulnerable.^[24] Thus, when enforcement of civil rights is weakened or the idea of what constitutes civil rights changes depending on the administration, the harm is not evenly distributed.^[25] Therefore, ED enforcement and regulation of compliance with Title IX implicates equal access to education, resulting in many students in need of financial aid effectively losing the full benefits of higher education if their university attempts to combat an administration’s agenda.^[26]

Changes made by differing executive administrations––promulgating new Title IX enforcement mechanisms––raise constitutional concerns.^[27] Under the Spending Clause, Congress may attach clear, related conditions to federal funds, granting it the power to regulate Title IX.^[28] Yet, Congress delegated broad enforcement discretion to the ED, giving the executive branch sizable control over the scope of civil rights protections.^[29] Consequently, due to partisan turnover, students and universities experience shifting protections. Because federal funding is critical for low-income students, this imbalance disproportionately harms those most dependent on access to higher education opportunities. While this issue is rooted in American governance, fulfilling Title IX’s promise requires Congress to codify discrimination standards, set funding baselines, and limit the ED’s discretion to ensure low-income and underrepresented students will not be disproportionately harmed.

^[1]  Title IX and Sex Discrimination, U.S. Dᴇᴘ’ᴛ. ᴏғ Eᴅᴜᴄ., https://www.ed.gov/laws-and-policy/civil-rights-laws/title-ix-and-sex-discrimination, (last visited October 7, 2025) [https://perma.cc/6ZA5-BL98].

^[2] 20 U.S.C. § 1681; see also Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007).

^[3] Naomi Shatz & Niamh Gibbons, What is the Current Status of Title IX and its Enforcement?, Bᴏsᴛᴏɴ Lᴀᴡʏᴇʀ Bʟᴏɢ (Feb 4, 2025), https://www.bostonlawyerblog.com/what-is-the-current-status-of-title-ix-and-its-enforcement [https://perma.cc/U97H-XQKP].

^[4] Regulations Enforced by the Office for Civil Rights, U.S. Dᴇᴘ’ᴛ. ᴏғ Eᴅᴜᴄ., https://www.ed.gov/about/ed-offices/ocr/regulations-enforced-by-the-office-for-civil-rights (last visited Sept. 21, 2025) [https://perma.cc/85NE-2EJB]; see also The End of Chevron Deference: What Does it Mean, and What Comes Next?, Aᴍ. Bᴀʀ Ass’ɴ, https://www.americanbar.org/groups/business_law/resources/business-law-today/2024-august/end-chevron-deference-what-does-it-mean-what-comes-next (last visited Sept. 21, 2025) [https://perma.cc/R63T-DBJW]; Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984).   

^[5] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024); Bernard Bell, The New Era of Skidmore Deference, Yᴀʟᴇ J. Rᴇɢ., (June 24, 2025) https://www.yalejreg.com/nc/the-new-era-of-skidmore-deference [https://perma.cc/5TDU-72M2]; Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

^[6] Id.; see also Victim Rights Law Ctr. v. Cardona, 552 F. Supp. 3d 104 (D. Mass. 2021).

^[7] College Athletics: Education Should Improve Its Title IX Enforcement Efforts, U.S. Gᴏᴠ’ᴛ Aᴄᴄᴏᴜɴᴛᴀʙɪʟɪᴛʏ Oғғ.., (Apr. 9, 2024) https://www.gao.gov/products/gao-24-105994 [https://perma.cc/9AJU-VAFX]; see also Andre M. Perry, Yonina Gray, & Will Teasley, The Trump Administration’s Actions on Higher Education Aren’t Impacting HBCUs- Yet, Bʀᴏᴏᴋɪɴɢs (Sept. 15, 2025), https://www.brookings.edu/articles/the-trump-administrations-actions-on-higher-education-arent-impacting-hbcus-yet [https://perma.cc/4K2Z-JUPL]; Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nᴇᴠ. L.J. 107 (2017).

^[8] Samuel R. Bagenstos, This is What Democracy Looks Like: Title IX and the Legitimacy of the Administrative State, 118 Mɪᴄʜ. L. Rᴇᴠ. 1053 (Apr. 2020).

^[9] U.S. Dᴇᴘ’ᴛ. ᴏғ Eᴅᴜᴄ., Oғғɪᴄᴇ ғᴏʀ C.R., Dᴇᴀʀ Cᴏʟʟᴇᴀɢᴜᴇ Lᴇᴛᴛᴇʀ: Sᴇxᴜᴀʟ Vɪᴏʟᴇɴᴄᴇ (2011), https://obamawhitehouse.archives.gov/sites/default/files/dear_colleague_sexual_violence.pdf [https://perma.cc/44PD-Q464].

^[10] R. Shep Melnick, Analyzing the Department of Education’s Final Title IX Rules on Sexual Misconduct,  Bʀᴏᴏᴋɪɴɢs  (June 11, 2020), https://www.brookings.edu/articles/analyzing-the-department-of-educations-final-title-ix-rules-on-sexual-misconduct [https://perma.cc/Q48R-BYGF].

^[11] Biden Administration’s Final Title IX Rule Goes Into Effect Aug. 1, Aᴍ. Cᴏᴜɴᴄɪʟ ᴏɴ Eᴅᴜᴄ., (Apr. 22, 2024), https://www.acenet.edu/News-Room/Pages/Biden-Admin-Final-Title-IX-Rule-Effective-Aug-1.aspx

[https://perma.cc/SV4A-ZHL5].

^[12] Id.; see also Summary of Changes to the Title IX Rules, Nᴀᴛ’ʟ Wᴏᴍᴇɴ's L. Cᴛʀ., (June 2024), https://nwlc.org/wp-content/uploads/2024/06/Biden-Title-IX-Rule-Fact-Sheet-6.12.24-vF.pdf [https://perma.cc/ME38-HJTR].

^[13] Collin Binkley, U.S. Colleges Returning to Campus Sexual Assault Rules Created During Trump's First Term, AP Nᴇᴡs (Jan. 31, 2025), https://apnews.com/article/title-ix-trump-lgbtq-sex-assault-b7b6ad1cbe28331ce38ef896e6d4fd2b [https://perma.cc/SV4A-ZHL5].  

^[14] Amanda Litvinov, Trump’s Unlawful Funding Freeze Threatens Critical Student Supports, ɴᴇᴀTᴏᴅᴀʏ (July 22, 2025), https://www.nea.org/nea-today/all-news-articles/trumps-unlawful-funding-freeze-threatens-critical-student-supports [https://perma.cc/4U4V-C8F2].

^[15] See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998); see also Cannon v. University of Chicago, 441 U.S. 677 (1979); see alsoFranklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992).

^[16] Howard University mishandled sexual assault reports, lawsuit says, CBS Nᴇᴡs (May 12, 2017), https://www.cbsnews.com/news/howard-university-mishandled-sexual-assault-reports-lawsuit-says/ [https://perma.cc/6HFT-QPXV].

^[17] Id.; see also Christina Sturdivant, Howard University Failed Five Rape Victims, Lawsuit Claims, DCɪsᴛ (May 11, 2017), https://dcist.com/story/17/05/11/rape-suit-howard-u/ [https://perma.cc/M7EX-CYJ6].

^[18] U.S. Department of Education Ends Funding to Racially Discriminatory Discretionary Grant Programs at Minority-Serving Institutions, U.S. Dᴇᴘ’ᴛ. ᴏғ Eᴅᴜᴄ., (Sept. 10, 2025), https://www.ed.gov/about/news/press-release/us-department-of-education-ends-funding-racially-discriminatory-discretionary-grant-programs-minority-serving-institutions [https://perma.cc/Z3A2-6BCB].

^[19] Id.

^[20] Id.

^[21] Sonel Cutler, Hispanic-Serving Institutions May Lose Federal Funds After Justice Dept. Refuses to Defend Grant Program, Tʜᴇ Cʜʀᴏɴɪᴄʟᴇ (Aug. 25, 2025), https://www.chronicle.com/article/hispanic-serving-institutions-may-lose-federal-funds-after-justice-dept-refuses-to-defend-grant-program [https://perma.cc/BU2J-ZQP2].

^[22] Jennifer M. Johnson & Elizabeth Jackson, The HBCU Advantage: Reimagining Social Capital Among Students Attending Black Colleges, Fʀᴏɴᴛɪᴇʀs (Feb. 12, 2024), https://www.frontiersin.org/journals/education/articles/10.3389/feduc.2024.1344073/full [https://perma.cc/MP6E-6KVF]; Gina Ann Garcia, Defining “Servingness” at Hispanic-Serving Institutions (HSIs): Practical Implications for HSI Leaders, Aᴍ. Cᴏᴜɴᴄɪʟ ᴏɴ Eᴅᴜᴄ., (2019), https://www.equityinhighered.org/resources/ideas-and-insights/defining-servingness-at-hispanic-serving-institutions-hsis-practical-implications-for-hsi-leaders/ [https://perma.cc/MP6E-6KVF].

^[23] U.S. Department of Education Ends Funding to Racially Discriminatory Discretionary Grant Programs at Minority-Serving Institutions, supra note 16.

^[24] Denise Smith, Exposing the Gap: Addressing Funding Disparities for HBCUs, Hɪɢʜᴇʀ Eᴅᴜᴄ. Tᴏᴅᴀʏ (Oct. 6, 2021), https://www.higheredtoday.org/2021/10/06/exposing-the-gap-addressing-funding-and-endowment-disparities-for-hbcus-and-its-impact/[https://perma.cc/J2L4-X42Z].

^[25] Id.

^[26] Katharine Meyer, Pell Grant Cuts Threaten State College Access Goals, Bʀᴏᴏᴋɪɴɢs  (June 5, 2025), https://www.brookings.edu/articles/pell-grant-cuts-threaten-state-college-access-goals [https://perma.cc/7JHB-KXKH]; see also Smith, supra note 21.

^[27] Elizabeth Kaufer Busch & William E. Thro, Restoring Title IX’s Constitutional Integrity, 33 Mᴀʀǫ. Sᴘᴏʀᴛs L. Rᴇᴠ. 507 (2022).

^[28] U.S. Cᴏɴsᴛ. art. I, § 8, cl. 1.; see also South Dakota v. Dole, 483 U.S. 203 (1987); see also Emily J. Martin, Title IX and the New Spending Clause, Aᴅᴠᴀɴᴄᴇ: Tʜᴇ J. ᴏғ ᴛʜᴇ ACS, 27 (2012).

^[29] Congress, Enforcing the Antidiscrimination Mandates of Title VI and Title IX: Executive Agency Options and Procedures (Cᴏɴɢ. Rᴇs. Sᴇʀᴠ. LSB11316).