The Lyndon Baines Johnson Department of Education Building pictured on Nov. 25, 2024. (Photo by Shauneen Miranda/States Newsroom)
Despite President Donald Trump’s threats and several investigations launched by his administration into Maine’s protections for transgender athletes, withholding federal money from schools is easier said than done.
Hours after a tense exchange between Trump and Gov. Janet Mills over the state’s policy regarding trans athletes, the U.S. Department of Education’s Office of Civil Rights (OCR) initiated an investigation into the Maine Department of Education and a southern Maine school district for failing to comply with its interpretation of federal law and an executive order barring trans girls from competing on sports teams consistent with their gender identity.
For decades, Title IX has been enforced almost exclusively by OCR, which upholds specific federal laws that protect students and employees at institutions receiving federal funds from discrimination based on race, sex or gender. These laws include Title IX of the Education Amendments of 1972 that protects against sex discrimination, as well as Title VI of the Civil Rights Act of 1964 that protects against racial discrimination.
Recently, the Trump administration has been advancing an alternative interpretation of these laws and has used OCR to threaten to cut federal funding to Democratic states (including California, Minnesota, and Maine) that have enshrined protections for trans students.
But OCR’s protocols, the actual text of federal law, and Maine’s state laws will together provide the state a substantial bulwark against possible funding cuts, an expert on the agency said.
“It’s not easy for OCR to legitimately cut off funding,” said Rachel Perera, a fellow in the governance studies program for the Brown Center on Education Policy at national think tank The Brookings Institution. “Repurposing OCR’s work to terminate federal funding for these more expansive interpretations of current federal law is going to be an uphill battle.”
Perera said cutting off federal funds to state education departments is almost unheard of for any reason, let alone an OCR violation. In fact, OCR has never withheld federal funds as a result of an investigation, according to Perera as well as an investigation by USA Today.
Although the Trump administration is interpreting Title IX to exclude trans athletes from sports and schools facilities, there is nothing in the actual law that mentions trans students. On top of that, OCR — an already overworked, understaffed department — has historically had limited authority as well as a significant backlog of cases to investigate, which Perera said makes any drastic outcome, such as withholding funds from Maine, highly unlikely.
All of that means that Maine is in a strong position to push back against the federal government, as long as current laws and procedures apply.
In heated exchange over trans rights, Gov. Mills tells President Trump: ‘See you in court’
“I think institutions, states and universities who want to stand up to them have the current interpretations of federal law on their side and current policies and regulations that dictate how OCR works on their side,” Perera said. “How much those things matter — as much as they have in the past — is still an open question.”
The Maine Department of Education agrees with that assessment.
“The Maine DOE does not believe that the federal government can legally withhold funding from Maine schools – either for athletic programming or more generally – as a means of coercion for compliance with an Executive Order,” said spokesperson Chloe Teboe in a statement.
In addition to the OCR investigation, the Trump administration expanded its probe into Maine through the departments of Agriculture and Health and Human Services, which the Bangor Daily News reported had only each launched one previous Title IX investigation. The University of Maine System had not received the USDA letter as of Tuesday, according to system spokesperson Samantha Warren. The agency’s public statement announcing the investigation “notably makes no allegations of any wrongdoing,” Warren said.
OCR claims Maine in ‘irresolvable conflict’ with federal law
In a letter sent Friday to Maine Education Commissioner Pender Makin, OCR’s Acting Assistant Secretary for Civil Rights Craig Trainor said the agency plans to expeditiously investigate whether the state has been denying equal opportunities to female student athletes while having policies that allow “males to participate in girl’s interscholastic athletics, thereby depriving girls and young women of equal athletic opportunities.”
I think institutions, states and universities who want to stand up to them have the current interpretations of federal law on their side and current policies and regulations that dictate how OCR works on their side…How much those things matter — as much as they have in the past — is still an open question.
– Rachel Perera, a fellow with the Brookings Institution
According to the Trump administration’s interpretation of Title IX, “a potential Title IX violation occurs when a covered entity denies female students female-only intimate facilities, such as sex-segregated locker rooms and bathrooms,” Trainor said.
OCR said Maine DOE might be knowingly defying federal law, citing the department’s response to Trump’s executive order asking schools to continue complying with Maine Human Rights Act, which protects trans students from discrimination in schools.
“OCR’s initiation of a directed investigation is not itself evidence of a violation of federal civil rights laws and regulations,” Trainor said. “However, MDOE’s posted statement … appears to acknowledge that it is knowingly taking a position in irresolvable conflict with federal law and instructing schools throughout Maine to do the same.”
The Cumberland-area school district that is under investigation is following Maine DOE’s guidance, according to a letter posted by Superintendent Jeff Porter on Feb. 10. OCR cited that letter and “credible local reporting” by the Maine Wire, a conservative blog published by the Maine Policy Institute, as reasons to investigate Greely High School.
What OCR can and can’t do
OCR investigates thousands of complaints each year, and they typically take months or years to resolve. In the course of its investigation, the office conducts interviews and reviews documents. If investigators find that a student or staff member was discriminated against, the office can require that districts make changes, such as altering policies, conducting staff or student training, or assessing school climate. These changes are often outlined in a voluntary resolution agreement. If the agency being investigated does not want to comply, it can get the Department of Justice involved, which can then result in the investigation being settled in federal court.
“So there’s lots of opportunities for institutions to forestall the possibility of having their federal funds terminated, and then to have the federal courts weigh in in a much more definitive manner,” Perera said.
Mills seems prepared for this route. In a statement issued in response to the OCR investigation on Friday, the governor said, “I imagine that the outcome of this politically directed investigation is all but predetermined. My administration will begin work with the attorney general to defend the interests of Maine people in the court of law.”
Like much of the federal government, OCR is currently in flux, with employees ordered not to investigate thousands of pending complaints alleging race and sex-based discriminations. Almost all OCR investigations were historically initiated due to complaints filed by agencies or individuals turning to the civil rights agency for help. But since Trump took office, those have taken a back seat and the office has pursued proactive “directed investigations,” ordered by the administration.
The Maine probe is an example of a directed investigation.
Title IX open to interpretation
The Trump administration dismantled former President Joe Biden’s expansion of Title IX to protect trans and gender nonconforming students, reverting to a 2020 version of the law that does not explicitly say anything about trans students and can’t be applied to exclude trans athletes from sports, Perera said.
“So I think they’re also out on a limb there, where they are interpreting the law in a way that doesn’t reflect the law, which gives Maine more opportunity to push back,” she said.
Rewriting Title IX would need approval from Congress, making it unlikely the law would be amended quick enough to allow OCR a clearer path to declare that Maine is guilty of sex-based discrimination, she said.
And while national law remains open to interpretation, Maine’s law is clear: trans rights are protected in schools and beyond by the Maine Human Rights Act. And Maine Attorney General Frey and Mills have promised to abide by the act and enforce those protections despite federal threats.
“Fortunately,” Frey said in a statement ahead of the investigation announcement, “the rule of law still applies in this country, and I will do everything in my power to defend Maine’s laws and block efforts by the president to bully and threaten us.”
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