The Right’s Revenge
How legal tools and strategies created by the left are now being deployed by Trump.
This article is part of an ongoing project by American Purpose at Persuasion on “The ‘Deep State’ and Its Discontents.” The series aims to analyze the modern administrative state and critique the political right’s radical attempts to dismantle it.
To receive future installments into your inbox—plus more great pieces by American Purpose and Francis Fukuyama’s blog—simply click on “Email preferences” below and make sure you toggle on the buttons for “American Purpose” and “Frankly Fukuyama.”
“Welcome to the new right-wing civil-rights regime,” wrote the Manhattan Institute’s Christopher Rufo in April, 2025. “Donald Trump has co-opted his predecessor’s aggressive approach to civil-rights enforcement on campus,” Conor Friedersdorf explained in The Atlantic, “and taken it even further.” Rufo and Friedersdorf identify a key feature of the current assault on Harvard, Columbia, and scores of other universities: the Trump administration is using weapons long championed by the left—and harshly criticized by the right—to achieve far different political goals. While promising to eliminate the Department of Education and tame the “administrative state,” it is wielding administrative power with unprecedented aggressiveness. It is time to realize that what the right is doing is the opposite side of the coin of civil rights regulations that the left had previously used to purge higher education of racism, sexism, and many other -isms.
Rufo and Friedersdorf call our attention to the fact that the powers invoked by the current administration stem from two key civil rights laws, Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. But the extraordinary reach of this campaign is not a product of these seminal laws themselves—they simply prohibit discrimination on the basis of race, national origin, and sex—but rather result from a long series of administrative fiats issued over the past quarter century. It is the potent combination of the vast accumulation of administrative power and vaguely defined underlying statutory objectives that places powerful weapons in the hands of presidents and their appointees, wherever they lie on the political spectrum. In the past this was concerning only to the right; now it should worry all of us.
Over the past several months, the Trump administration has launched a full-scale assault on higher education, initiating investigations and imposing sanctions against universities. Despite some defeats in the courts, there is no sign that this attack will soon abate. It remains to be seen what the current administration seeks to achieve. Is it to reform universities, destroy them, or simply wallow in the delight of retribution? It is also too early to estimate the long-term consequences of these attacks. That will depend in large part on how courts and the universities themselves respond.
It is not too soon, though, to address this fundamental question: How did the federal government accumulate so much power to influence and disrupt higher education, including some of the most prestigious and wealthy universities in the world? Part of the answer, of course, is money. Research universities have become dependent on many forms of federal largesse, including grants, contracts, financial aid for students, and favorable tax status. We are also learning how much they rely on access to foreign students. The extent to which the federal government can impose conditions on receipt of these resources is the most important issue currently before the federal courts.
On some issues the Trump administration has acted so precipitously that its initial actions are unlikely to survive judicial review. But on others it benefits from rules and precedents so capacious that universities will be forced to comply with their demands.
The Transgender Agenda
Before around 2014, the federal government had virtually nothing to say about the treatment of transgender students and employees. Indeed, relatively few federal employees had thought about how transgender individuals should be assigned to bathrooms, dorms, or sports teams. That changed in 2014-16 when the Obama White House, Department of Justice, and Department of Education announced that federal civil rights law not only prohibited discrimination against transgender employees but required transgender students to be assigned to sex-segregated facilities on the basis of their “gender identity” rather than their sex.
These novel policies were not established through the standard form of rulemaking required by the federal Administrative Procedure Act, but rather announced in unilateral “Dear Colleague Letters” (DCLs). Several federal judges agreed with this novel interpretation of Title IX, even though that law explicitly prohibits “sex” discrimination and the term “gender identity” was created for the specific purpose of distinguishing between “sex” and “gender identity.” Suddenly transgender issues were a matter of federal policy and intense partisanship.
The first Trump administration rescinded the Obama administration’s transgender guidance documents, but otherwise ignored the issue. Meanwhile, the Supreme Court decided in Bostock v. Clayton County (2020) that Title VII of the Civil Rights Act prohibits employers from discriminating against transgender employees. The Court made clear that it was not addressing the key issue in most Title IX controversies, that is how to assign students to sex-segregated facilities when such segregation is authorized by law. That hot-button issue remained in the hands of state and local education officials and private educational institutions.
The incoming Biden administration placed the transgender issue high on its list of priorities. On his first day in office, President Biden issued an executive order on “Preventing and Combatting Discrimination on the Basis of Sexual Orientation and Gender Identity.” Several departments subsequently adopted policies expanding coverage of gender-affirming care and prohibiting any form of discrimination (often ill-defined) against transgender individuals. In 2024, the Department of Education promulgated long-awaited Title IX regulations, which (among many other things) required schools to assign students to sex-segregated facilities on the basis of their gender identity. The Department did not directly address the issue of sports teams but clearly indicated that any exceptions to gender-based assignments would be extremely narrow. Those regulations never went into effect because the sections on transgender issues were rejected by a number of federal courts.
The Trump campaign realized that this was a winning political issue. Its “Kamala is for they/them, President Trump is for you” ad drew such a powerful response that Trump 2.0 eagerly shifted strategy, issuing the executive orders “Defending Women from Gender Ideology Extremism and Restoring Truth to the Federal Government” and “Keeping Men out of Women’s Sports.” The administration threatened to withhold all educational funding to the state of Maine if it did not reverse its policies on who could play on boys’ interscholastic sports teams. It withheld funds from the University of Pennsylvania until it stripped the swimmer Lia Thomas of her records, apologized to those Thomas swam against, and prohibited male-to-female transgender athletes from competing on women’s teams.
It is not unreasonable to believe that allowing athletes such as Thomas to compete against those without a Y chromosome and higher testosterone levels is unfair to women. But the fact remains that Title IX itself says nothing about how schools must assign students to the handful of sex-segregated facilities and programs that it explicitly authorizes. Yet once the issue was placed on the national agenda, nearly everyone came to assume that it required a national solution. Faced with the loss of federal money, University of Pennsylvania caved.
The “Era of Rule by Letter” Is Not Over
The transgender issue provides a vivid example of how the scope of civil rights laws has been expanded through administrative decrees.
Both Title VI and Title IX authorize federal funding agencies to issue “rules, regulations, or orders of general applicability” to carry out their responsibilities under the act. They then add an unusual caveat: “No such rule, regulation, or order shall become effective unless and until approved by the President.” Congress found that the politically sensitive nature of these rules required an extra measure of accountability.
Issuance of rules and regulations is governed by the “notice and comment rulemaking” provisions of the federal Administrative Procedure Act (APA). To establish a legally binding rule, agencies must publish their proposed rule in the Federal Register, accept and respond to public comments on that proposal, and explain the rationale for the rule they eventually promulgate. That final rule is then subject to judicial review. DCLs and other informal guidance documents require no such public participation, transparency, or political accountability.
End runs around these procedures are nearly as old as Title VI itself. When the precursor of the Department of Education’s Office for Civil Rights (the OCR) issued its guidelines on Southern school desegregation in 1965—perhaps the most consequential guidelines ever issued on racial discrimination—they appeared not in the Federal Register, but in the Saturday Review of Literature. (I am not making this up.) In 1975 the Department of Health, Education, and Welfare issued a lengthy set of regulations under Title IX, complying with both the APA and Title IX’s presidential signature requirement. The Department of Education did not go through APA rulemaking on a major Title IX issue again until 2020—nearly a half century later.
During Barack Obama’s two terms, the OCR issued as many DCLs and other guidance documents as the previous seven presidents combined. Its DCLs on sexual harassment and transgender issue attracted substantial criticism. The 2016 Republican platform devoted a separate section to Title IX, charging that the original purpose of the law had been perverted “by bureaucrats—and by the current President of the United States—to impose a social and cultural revolution upon the American people.” Republican Senators subjected the head of the OCR to harsh questioning for her repeated use of unilateral policy pronouncements.
Announcing that “the era of rule by letter is over,” Trump’s first secretary of Education, Betsy DeVos initiated a full APA rulemaking on the sexual harassment issue. That process took two years to complete. The OCR received 125,000 comments and compiled a 2,000-page explanation of its final rule. It was promptly challenged in several federal courts, but survived judicial review with only minor changes.
Immediately upon coming into office, the Biden administration indicated it would return to the policies of the Obama administration, which Biden himself had played a role in shaping. To undo the 2020 rules, the Department had no option but to go through another rulemaking process. That process generated even more comments and took even longer to complete. The final rule did not appear until April 2024. And it was soon enjoined in a number of court suits filed by Republican state attorneys general.
On all other Title VI and IX matters, though, the Biden administration reverted to the use of DCLs and other informal guidance documents. The same is true of Trump 2.0: short DCLs have once again become the norm. One novel feature of the second Trump administration is the number of executive orders on matters related to Title VI and Title IX. In the first few months of his second term, Trump issued five executive orders on DEI issues, two on transgender issues, and one on antisemitism. These orders provide even less explanation than the typical DCL but have largely supplanted other forms of administrative guidance. Trump 1.0 was a temporary shift away from unilateral administrative fiat; Trump 2.0 has moved decisively in the opposite direction.
Antisemitism
The Trump administration has placed the charge of antisemitism at the heart of its attacks on Harvard, Columbia, and many other schools. Here it is relying almost entirely on informal administrative guidelines issued over the preceding two decades.
President Trump issued executive orders to “combat anti-Semitism,” in 2019 and 2025. In its April 11, 2025 letter to Harvard, the new Joint Task Force to Combat Anti-Semitism demanded that the school commission an “external party” approved by the Task Force “to audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture.” Harvard must also identify “individual faculty members who discriminated against Jewish or Israeli students or incited students to violate Harvard’s rules” during the protests after October 7, 2023. Soon thereafter the General Services Administration cancelled all contracts with Harvard in part due to its “disturbing lack of concern for the safety and wellbeing of Jewish students.” The Department of Justice encouraged private citizens to file False Claims Act cases against any school that “encourages antisemitism” or “refuses to protect Jewish students.”
Putting aside the question of why an administration led by a man who frequently associates with neo-Nazis has become so devoted to combatting antisemitism, it is important to ask how and why antisemitism (and its regulatory companion, “Islamophobia”) violates federal civil rights law. Title VI prohibits discrimination on the basis of “race” and “national origin.” The Johnson administration’s civil rights bill included the word “religion,” but Congress dropped it. Legislative leaders argued that it raised too many complicated questions that might drain support for the 1964 act. (For example, shouldn’t religious schools be allowed to favor members of their religion?) For the next 40 years no one doubted that religious discrimination lay outside the prohibitions of Title VI.
That began to change in the early 21st century. After 9/11, the Bush administration was intent upon demonstrating that it opposed harassment of and discrimination against Muslims and Arabs living in the United States. The head of the OCR, Kenneth Marcus, had long sought to address antisemitism on campus and elsewhere. His 2004 Dear Colleague Letter conceded that the “OCR’s jurisdiction does not extend to religious discrimination” but contended that religious discrimination is often “commingled” with discrimination on the basis of race, national origin, and sex. “Groups that face discrimination on the basis of shared ethnic characteristics may not be denied the protection of our civil rights laws on the ground that they also share a common faith.”
What this ambiguous claim would mean in practice was clarified somewhat in a 2010 letter from Assistant Attorney General Thomas E. Perez, the head of the Department of Justice’s Civil Rights Division: “Although title VI does not prohibit discrimination on the basis of religion, discrimination against Jews, Muslims, Sikhs, and member of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.” This incremental expansion of federal jurisdiction met with little opposition. Who wanted to defend discrimination against Jews, Muslims, and Sikhs even if the legal justification was rather tenuous?
Shortly after October 7, 2023, the OCR issued a warning about “an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students,” and repeated its earlier guidelines. A few months later it distributed a 17-page DCL giving more detailed examples of what constitutes “shared ancestry” harassment and how it should be handled. In short, the string of previous DCLs gave the OCR a regulatory lever to pull when campus battles over Israel and Gaza hit the headlines.
According to the OCR’s pre-2025 guidelines on antisemitism, what must schools do to avoid violating Title VI? Most obviously, take disciplinary action against students, teachers, and administrators who engage in harassment based on “shared ancestry or ethnic characteristics.” Moreover, they must demonstrate that they have an administrative structure dedicated to identifying, preventing, and eliminating such harassment. After a student accused NYU of being deliberately indifferent to antisemitism in the fall of 2023, the university created a Title VI Coordinator to carry out this function. Soon thereafter, the University of Pennsylvania created a new “Office of Religious and Ethnic Inclusion” to coordinate enforcement of Title VI rules and to provide training on religious and ethnic toleration. The OCR’s DCL of May, 2024 also encouraged schools to counter harassing speech with its own speech: “a university can, among other steps, communicate its opposition to stereotypical, derogatory opinions.”
The great difficulty here is distinguishing antisemitic “harassment” from protected speech on hotly contested political and cultural issues. Antisemitism (like racism and sexism) is an “ism”—a set of beliefs, however vile and unsubstantiated they may be. How can antisemitism be separated from anti-Zionism—a set of beliefs not coterminous with any religion or ethnicity—or from beliefs about the legitimacy or the policies of the state of Israel? Are theories of “settler colonialism” inherently antisemitic? How can a school “communicate its opposition to stereotypical, derogatory opinions” without wading into the quagmire of Middle Eastern politics?
For previous administrations these considerations led to a cautious approach, condemning antisemitism and preaching tolerance while avoiding steps that might chill speech by students and faculty. For the Trump administration, those 20 years of precedent offered an opportunity to demand major changes in schools’ disciplinary rules, its programs and faculty, and its admissions policies.
From Official Policy to Student Behavior
The religious discrimination issue took on new significance when combined with a major initiative of the Obama-era OCR, the effort to address various forms of “bullying” and “harassment.” In its 2010 DCL on bullying and its highly controversial 2011 DCL on sexual harassment and assault, the OCR switched its attention from the policies of schools themselves—related to admissions, hiring, allocation of resources, and the like—to their responsibility to monitor, control, and discipline student behavior. Both the courts and the OCR had previously addressed the problem of sexual misconduct by teachers. Now the focus was on defining and punishing misconduct by students, even in the most intimate of settings.
Assistant Secretary of Education for Civil Rights Russlynn Ali began her 2010 guidance on bullying by asserting that schools violate civil rights laws “when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.” It offered a sweeping definition of “harassment,” which
may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the internet; or other conduct that may be physically threatening, harmful, or humiliating. Harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.
Similar language was included in a number of subsequent OCR directives. Another name for “verbal acts,” of course, is speech. Preventing bullying now required schools to monitor and limit students’ speech in class and out, on school premises and online. It requires schools to determine what speech is not only “threatening,” but “harmful” or “humiliating.”
The DCL emphasized that once school administrators have identified such harassment, they “should look beyond simply disciplining the perpetrators. While disciplining the perpetrator is likely a necessary step, it often is insufficient.” They “must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and its effects, and prevent the harassment from recurring.”
In short, they must purge student culture of all these harmful forms of speech and behavior. The 2010 DCL explained that “anti-Semitic harassment can trigger responsibility under Title VI,” as can harassment of “any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g. Muslims or Sikhs).”
The DCL on bullying also took a major step toward sweeping “gender-based” and sexual orientation discrimination into Title IX’s jurisdiction. In a masterpiece of circumlocution, it explained that even though “Title IX does not prohibit discrimination based solely on sexual orientation … it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristics for their sex, or failing to conform to stereotypical notions of masculinity and femininity.” Thus was born the idea that schools have a responsibility to correct students’ “stereotypical notions” related to race, sex, ethnicity, and disability. The Trump administration appropriated this language when it prohibited “DEI” programs that “intentionally treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.”
In its April, 2025 letter to Harvard, the Joint Task Force on Antisemitism indicated that its authors saw a close connection between antisemitism and the leftist leanings of those “programs, schools, centers” that “fuel antisemitic harassment or reflect ideological capture.” Harvard, they claimed, “must reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence, including students supportive of terrorism or anti-Semitism.” According to the Task Force, “communicating opposition to stereotypical, derogatory opinions” means promoting a contrary set of opinions, those based on the “American values” embodied in the Constitution and Declaration. To eliminate harassment related to religion, ethnicity, race, sex, or disability, as the long series of OCR and DOJ guidance documents have maintained, requires schools to provide “training” on the proper way of thinking about these matters—which is the job of Title VI and Title IX coordinators.
The April, 2025 letter to Harvard also demonstrates how the anti-harassment rationale has justified demands that universities discipline students and faculty members and revise their internal structure. It demanded that Harvard identify “individual faculty members who discriminated against Jewish or Israeli students or incited students to violate Harvard’s rules following October 7,” and cooperate with the government “to determine appropriate sanctions for those faculty members.” It must make substantial revisions in its recognition, funding, and disciplining of student groups. It must create new disciplinary procedures to prevent disruption and “deplatforming.” To do this it must extend the powers of the university police, create a centralized administrative body directly accountable to the president, and reform or eliminate those “institutional bodies and practices that delay and obstruct enforcement.” This is just one part of a broader “governance reform and restructuring” of the university demanded by the Task Force.
In short, through a long series of Dear Colleague Letters and other guidance documents, the Department of Education (1) expanded the coverage of Title VI to include antisemitism and Islamophobia, (2) expanded the responsibilities of schools to monitor, punish, and counter various forms of speech by students, faculty, and others on campus, and (3) required schools to create centralized compliance offices to supervise disciplinary proceedings and the extensive trainings required by federal regulation. All three of these features of regulation were in place before 2025. The Trump administration did not invent them; rather it magnified them and turned them in a different direction.
Of Problems and Powers
Is antisemitism a problem on some college campuses? Should colleges take steps to address sexual misconduct among their students? Should K-12 schools try to reduce bullying? Should all schools deal sympathetically with students suffering from gender dysphoria? Most of us would answer “yes” to all these questions. But then comes harder questions: Are these issues that must be addressed by federal regulators? Should these regulators attempt to solve these varied problems by invoking vague non-discrimination statutes? Should this be done through congressional action, through the time-consuming APA process, or through quick unilateral administrative guidelines?
For many years those on the left championed quick administrative solutions to a growing list of educational inequities, giving little thought to how these powers could be used by those with a much different agenda. Meanwhile conservatives railed against abuse of government authority. But they suddenly grew silent when that authority was used to attack institutions they loathe.
In April a federal district court judge in Maryland enjoined the Department of Education from enforcing its February, 2025 DCL on affirmative action and its subsequent guidance on “Frequently Asked Questions about Racial Preferences and Stereotyping under Title VI.” Ruling in a case brought by the American Federation of Teachers, Judge Stephanie Gallagher convincingly argued that in practice these documents were legally binding and constituted substantial changes in public policy. Consequently, the Department of Education must go through the APA’s notice-and-comment rulemaking process. This suggests that the Trump administration’s aggressive use of unilateral decrees is leading federal judges to rethink administrative practices they have long accepted and even encouraged.
Let’s hope that continues. Those of us who are deeply disturbed by the Trump administration’s campaign to weaken and remake higher education need to take a hard look at how the federal government accumulated so much power and consider how this dangerous power can be cabined.
R. Shep Melnick is the Thomas P. O’Neill Professor of American Politics at Boston College and author of The Transformation of Title IX and The Crucible of Desegregation.
Follow Persuasion on Twitter, LinkedIn, and YouTube to keep up with our latest articles, podcasts, and events, as well as updates from excellent writers across our network.
And, to receive pieces like this in your inbox and support our work, subscribe below:
 | A guest post by
|
“Conservatives railed against abuse of government authority. But they suddenly grew silent when that authority was used to attack institutions they loathe.”
Or maybe they realized cooperating in a prisoner’s dilemma against consistent defectors is a losing game. Suddenly, for the first time in history, liberals are starting to criticize the civil rights regime, something that mysteriously never happened even when universities blatantly and openly trumpeted their discrimination against white men.