Higher Education Enforcement Under Trump 2.0: What To Expect?

The transition between presidential administrations is typically accompanied by a change in federal enforcement priorities, and the world of higher education is no exception. President-elect Trump has already promised to implement significant changes to the sector. Some of his more high-profile ideas have captured the news cycle, such as the proposal to eliminate the Department of Education altogether,¹ but other areas will likely see major changes as well. This includes antitrust litigation, foreign relations (and a potential China Initiative 2.0), the implementation and revision of education regulations, and increased congressional scrutiny. Below, we discuss some of these areas and how the changes could impact colleges and universities.

Antitrust

President Trump's return to the White House will likely bring a noticeable shift in US antitrust regulation and enforcement priorities.²Two potential areas of concern for higher education are the cost of tuition and the structure of the NCAA.³

The ongoing settlement negotiations in House v. NCAA, three joined cases involving antitrust allegations for the uncompensated use of athletes' names, images, and likenesses, will play a significant role in shaping the structure of college sports in the future.⁴The current settlement in House would not only pay former college athletes approximately $2.78 billion in damages but would also allow colleges to begin sharing revenue with current and future college athletes.⁵Beyond House, the NCAA has indicated that it will continue to seek some form of a limited antitrust exemption from Congress to support the NCAA's rulemaking authority.⁶A GOP congressional majority may be sympathetic to these requests⁷; for example, Senator Ted Cruz (R-Tex.) recently announced that structuring the "future and viability of college athletics" will be "a priority" for Congress⁸ Even if no legislative solution is reached, it is plausible that the Department of Justice (DOJ) under President-elect Trump will dial back its involvement in NCAA litigation. This would be a significant contrast from the Biden administration's less-than-friendly stance towards the NCAA. In recent years, the DOJ has supported athletes by filing amicus briefs and Statements of Interest in lawsuits challenging NCAA rules, as it did in the lawsuit that overturned the NCAA's transfer restriction rules.⁹

The DOJ under the Biden administration also applied antitrust law against colleges and universities in an attempt to combat the rising cost of higher education.¹⁰ In a 2022 case, the DOJ filed a Statement of Interest supporting plaintiffs who alleged that a group of defendant universities had entered into an agreement to calculate need-based financial aid that was not exempt under the 568 Exemption because the colleges' consideration of family income in its student admissions process rendered them ineligible.¹¹It remains to be seen how the DOJ under President-elect Trump will prioritize participation in antitrust suits against the price-setting behavior of colleges and universities. (Such suits show no sign of abating; two college students filed a lawsuit with proposed class antitrust claims against 40 universities in October 2024.¹²) One factor that may play a role in the DOJ's involvement in such suits is the identity of defendant universities in any such actions. Conservative lawmakers have expressed increasing hostility against "elite" universities, and it is not difficult to imagine a Republican-led DOJ continuing to take positions—in antitrust lawsuits and otherwise—that are against the interests of such institutions.

China Initiative 2.0

The DOJ's much-maligned "China Initiative," which ran from 2018 to 2022,¹³was a focused effort to improve national security by cracking down on economic espionage and trade theft conducted by the Chinese government.¹⁴ Under the China Initiative, the DOJ prosecuted several academics for allegedly failing to properly disclose their ties with China when applying for federal research funding.¹⁵ After multiple prosecutions ended unsuccessfully, either with acquittals or dismissals, the DOJ officially ended the China Initiative in 2022.¹⁶ (Steptoe defended a professor from Southern Illinois University-Carbondale in a China Initiative prosecution in federal court, obtaining dismissal of two counts of wire fraud against him and a jury acquittal on a related count of making false statements, acquitting him of all grant fraud charges. He was convicted on technical foreign bank account reporting violations and received probation.¹⁷)

Reports of the China Initiative's demise, however, may be greatly exaggerated, as it is entirely possible that the China Initiative will return in some form under President-elect Trump. In September 2024, House Republicans passed a bill that would revive the China Initiative.¹⁸ And a hostile attitude toward China is not limited to Republicans—members of both political parties have taken a strong stance against China in recent months.¹⁹Given these sentiments, it is not unreasonable to think that the executive branch under President-elect Trump may implement a new round of the China Initiative, even if under a different name, and given the incoming administration's disdain for elite higher education institutions, the initiative may this time take aim at institutions, and not just Chinese-origin academics. If this occurs, it will be critical for researchers and institutions to ensure they are properly disclosing all ties with China when applying for federal funding, closely vetting relationships with Chinese institutions and organizations, and performing heightened due diligence where appropriate.

Title IV of the Higher Education Act

Title IV provides students with federal financial aid for higher education.²⁰President Trump's 2018 proposed budget (titled "A New Foundation for American Greatness")²¹included drastic cuts to federal student aid programs, one of which would have cut Pell grants by $3.9 billion, a move that surprised many in higher education.²² These sweeping cuts to student financial aid did not make it into the final Congressional budget.²³Education grants and aid are broadly popular and seem unlikely to be repealed, but the Trump administration may nonetheless propose and/or implement cuts that could impact the availability of aid. Education funding could also fall within the crosshairs of President-elect Trump's newly created Department of Governmental Efficiency (DOGE) commission, to be headed by Elon Musk and Vivek Ramaswamy, which has been tasked with slashing federal spending.²⁴

Title VI of the Civil Rights Act – Religious Discrimination

Title VI, which the Department of Education has interpreted to prohibit religious discrimination against Jewish and Muslim students,²⁵ could play a critical role in how President-elect Trump's executive branch handles campus protests surrounding the Israel-Hamas conflict. President-elect Trump has made strong public statements supporting Israel, both during his first presidency²⁶and on the campaign trail, when he promised to "defend our American Jewish population."²⁷He encouraged the Biden administration to revoke the visas of individuals supporting Hamas,²⁸and he may attempt to do this upon taking office. Since Hamas' October 7, 2023 attacks on Israel, "the Department of Education's Office for Civil Rights (OCR) has opened dozens of investigations into allegations of antisemitism at colleges and K-12 schools, a dramatic increase from previous years."²⁹ This trend will likely continue under the Trump presidency, with OCR continuing to focus on investigating antisemitic conduct as well as (though likely to a lesser extent) anti-Arab and anti-Muslim harassment and violence,³⁰ all of which is on the rise on college campuses.³¹

Title VI of the Civil Rights Act – Racial Discrimination

Title VI enforcement actions regarding racial discrimination also bear monitoring. Last year, the Supreme Court ruled that affirmative action programs in higher education were unconstitutional, a decision that President Trump and Republican lawmakers praised.³² Despite this decision, the Biden administration promoted recommendations to increase diversity on campuses that some considered to be impermissible workarounds.³³ The Trump administration is expected to discontinue such practices and take steps to limit diversity, equity, and inclusion (DEI) initiatives on campuses.³⁴For example, President-elect Trump has promised to "cut federal funding for any school or program pushing Critical Race Theory."³⁵In anticipation of his next presidency, some commentators have recommended preemptively curtailing DEI offices and initiatives at universities.³⁶Others have recommended holding fast to DEI initiatives in the face of President-elect Trump's threats to cut funding.³⁷ For example, Wesleyan University's president has publicly taken the latter stance, pledging more, not fewer, DEI initiatives to come.³⁸Whichever route colleges and universities take, they should be thoughtful about the steps they take and cognizant of the risks and potential legal implications of those actions.

Title IX of the Civil Rights Act – Gender Discrimination

The Biden administration bolstered Title IX's protections for transgender students and pregnant individuals through new DOE guidance.³⁹Republican state attorneys general have challenged these protections, suing the Department of Education and securing injunctions preventing the new guidance's enforcement in several states.⁴⁰ President-elect Trump's administration is expected to replace President Biden's more victim-friendly regulations and reinstate its previous stances on Title IX,⁴¹including strengthening protections for those accused of sexual assault and decreasing federal protections for transgender students. As a practical matter, this may leave universities in limbo for some period of time, with uncertainty around what the current Title IX regime is (which may vary state to state, based on the injunctions referenced above) and what it will be in the future.

Potential Leniency toward For-Profit Schools

The Biden administration made a concerted effort to crack down on for-profit schools, some of which have saddled their students with high amounts of debt and no degree after promising employability upon graduation.⁴²President-elect Trump, who himself previously ran a now-shuttered for-profit institution, Trump University,⁴³will likely favor for-profit institutions and discontinue the Biden administration's crackdown. During President-elect Trump's first term in office, then-Secretary of Education Betsy DeVos closed multiple investigations into allegedly predatory for-profit institutions.⁴⁴President-elect Trump will likely "loosen the reins" on for-profits, decreasing oversight and investigations into such institutions.⁴⁵

Congressional Investigations

Congressional oversight of universities—other than for-profits—is likely to increase during the next Congressional session. Even before the election, Congressional hostility toward higher education was on the rise, notably highlighted by the December 5, 2023, hearing on campus antisemitism at which the presidents of Harvard University, Massachusetts Institute of Technology, and the University of Pennsylvania were questioned for their handling of antisemitic incidents and campus protests.⁴⁶ The testimony led to the resignations of the presidents of both Harvard and the University of Pennsylvania.⁴⁷Similar investigations and hearings are likely to occur.

Congressional investigations and oversight will likely extend beyond protests and antisemitic incidents. President-elect Trump's allies in Congress have already proposed several pieces of legislation aimed at taxing the endowments of "elite" and private institutions at higher rates⁴⁸and curtailing the availability of DEI initiatives on campuses.⁴⁹ So far, Congressional focus has primarily honed in on a small number of private institutions, notably Ivy League and elite institutions. This focus is likely to continue.

Potential Overhaul of the Department of Education

President-elect Trump has repeatedly vowed to eliminate the Department of Education altogether.⁵⁰ Uncertainty as to what may happen to the Department increased with President-elect Trump's announcement that he would nominate Linda McMahon as the Secretary of Education. She is the former head of the Small Business Administration, but better known as the former president and CEO of World Wrestling Entertainment, Inc. (WWE).⁵¹ President-elect Trump's announcement promised to "send education back to the states."⁵²

In late November 2024, Senator Mike Rounds (R-S.D.) introduced legislation that may give a preview of future Department policy.⁵³The bill aims to dismantle the Department of Education, but includes language that would redirect certain Department programs—including federal loan programs, special education, and Native American education initiatives—to other federal agencies.⁵⁴Most commentators think it is unlikely that the Department of Education will be entirely dissolved. But McMahon's nomination seems to indicate that President-elect Trump intends to curtail a significant portion of the Department's activities in the name of efficiency and state determination. As noted above, it also seems likely that, to the extent OCR continues to exist in its current form, its enforcement priorities may shift to focus more on incidents involving antisemitism, anti-Israel sentiment, and perhaps anti-conservative and anti-white bias.⁵⁵

The Department of Education is not the only agency that may experience significant changes that could impact the higher education sector. In early December, Jay Bhattacharya, President-elect Trump's nominee to direct the National Institutes of Health, told the media that he is developing "a plan to link a university's likelihood of receiving research grants to some ranking or measure of academic freedom on campus."⁵⁶ Any such change could potentially impact how billions of dollars of research grants are allocated.⁵⁷

Conclusion

As the country enters the second Trump presidency, colleges and universities should stay informed and be proactive in responding to the new administration's policy shifts that may impact institutions' operations, funding, and compliance. Steptoe will be closely monitoring these developments, writing on them regularly, and advising its institutional clients on risks, compliance, and related issues.

Footnotes

1 See Sara Randazzo and Matt Barnum, Trump to Nominate Linda McMahon to Lead Education Department, Wall St. J. (Nov. 19, 2024), https://www.wsj.com/politics/policy/trump-to-nominate-linda-mcmahon-to-lead-education-department-33e3e095.

2 Trump 2.0: Potential Shifts and Key Considerations in US Antitrust Policy, Steptoe LLP (Nov. 19, 2024), https://www.steptoe.com/en/news-publications/antitrust-and-competition-blog/trump-20-potential-shifts-and-key-considerations-in-us-antitrust-policy.html.

3 Juan Perez Jr., Antitrust Comes to Campus, Politico (Aug. 5, 2024), https://www.politico.com/newsletters/weekly-education/2024/08/05/antitrust-comes-to-campus-00172567.