At 10:50 a.m. on Feb. 25, an official with the U.S. Department of Agriculture emailed an employee at the University of Maine in Orono with a list of 10 yes-or-no questions.
The university was being investigated for its compliance with President Donald Trump’s executive order banning transgender female athletes from competing in women’s sports, and the federal official needed more information about the school’s policies. Millions in federal funds were at risk for non-compliance, the USDA warned.
The official gave the university an hour and ten minutes to provide her with answers.
The abruptness of the demand, which shocked university staff, kicked off an investigation that unfolded with unusual speed and dealt an unprecedented penalty when the USDA said it was freezing the university system’s federal funding on Monday before even reaching a conclusion, according to interviews with legal experts and documents revealed by the Bangor Daily News and ProPublica earlier this week. The USDA then reversed course late Wednesday by lifting its plan to freeze what could have totalled $35 million.
Throughout it all, the USDA never actually blocked Maine’s public universities from drawing down their funds, which it uses for research that benefits industries such as agriculture, fishing and forestry, University of Maine System spokesperson Samantha Warren said.
The initial decision to freeze funding was especially surprising because it came after the university provided investigators with noteworthy information, records show: None of the seven schools within the University of Maine System have transgender women on their women’s sports teams.
“I have never seen funding attacked like this,” said Amy Oppenheimer, a founding partner with the California-based Oppenheimer Investigations Group that conducts Title IX investigations.
Neither had Deborah Brake, a professor at the University of Pittsburgh School of Law, who said the federal government legally can’t freeze funds before a violation is found. Even if it finds a violation, there is a legal process laid out for assessing any monetary penalty.
“There is no legal authority in the statute to freeze funds temporarily based on a prospective violation. That is certainly not authorized by law, and I’ve never seen anything like this,” Brake said.
The ordeal illustrates the chaotic, unpredictable and legally dubious nature of the Trump administration’s pressure campaign against Maine for defying the president’s executive order banning transgender girls from competing in girls’ sports, legal experts said. The USDA is one of six federal agencies that have targeted the state since Gov. Janet Mills publicly refused to comply with the order, “Keeping Men Out of Women’s Sports,” because it conflicts with state law. Many view Maine as a test case for how the Trump administration intends to force its policies on states anyway.
In addition to the USDA’s inquiry, the U.S. Department of Health and Human Services’ Office for Civil Rights conducted an investigation in one business day in late February that determined the Maine Department of Education was violating Title IX by allowing transgender girls to compete on girls’ high school sports teams. Legal experts have cast doubt on the legality of the finding, saying the federal civil rights law doesn’t require any school team to exclude transgender girls. Title IX, passed as part of a landmark civil rights law in 1972, prohibits sex-based discrimination in educational programs that receive federal funding.
“The current administration is trying to usurp the courts and state laws in order to enact an agenda,” Oppenheimer said, explaining that interpretations of federal laws should play out in the courts and not be decided by the executive branch. Instead, the administration “is trying to move quickly, so, even if the courts ultimately disagree, they’ve already wreaked havoc and forced some institutions to change policies rather than risk losing funding.”
The U.S. Department of Education’s Office for Civil Rights has also launched a Title IX review in Maine, though state officials have not heard from investigators since being notified. The Trump administration has since gutted the civil rights enforcement division when it fired about half of the education department’s personnel on Tuesday, ProPublica reported.
The USDA is so far the only federal agency investigating the state’s transgender athlete rules that has questioned Maine officials, according to state officials and documents. It’s rare for it to do so. Legal experts said they were unaware of a previous instance when the agricultural agency investigated school athletic policies. As a land-grant university, the university system has received more than $100 million from the USDA in recent years.
The federal agency’s approach immediately took university officials off guard. In response to written questions from the agency, Liz Lavoie, the university’s Title IX coordinator, noted that the USDA had not given the university “any explanation as to the basis or scope of its inquiry, or the steps in the process.”
“Further, we have been given mere hours to respond to both sets of questions and we are responding in good faith but find the approach concerning given the lack of official service and the informal nature that the questions and interview have been presented,” Lavoie wrote in a Feb. 26 email to the USDA obtained by the BDN in a public records request.
One question asked whether the university system had teams, toilets and locker rooms segregated by sex. (Answer: yes). Another asked whether the schools would allow “a biological male student-athlete to identify as a biological female student-athlete to establish individual eligibility to NCAA-sanctioned women’s sports.” (Answer: no.)
The USDA also asked if changes to policy by the NCAA — the league that Maine belongs to and which recently barred transgender female athletes from competing on women’s teams following Trump’s executive order — applied “retroactively” to transgender athletes competing on women’s teams in Maine.
To its knowledge, none of the seven universities within the University of Maine System have transgender athletes participating in NCAA-sanctioned sports, the system responded.
Since Feb. 26, the USDA has not directly contacted the university system again, said Warren, who pointed out that the federal agency has never actually alleged that the universities were violating Title IX; instead, it has specified that the state of Maine is in violation and, in response, it is reviewing the universities.
The USDA didn’t even directly notify the university system that it planned to cut off funding. On Monday, the university was forwarded an email from the federal agency saying it would no longer issue any payments to all of Maine’s public universities. It would stop funding to Columbia University in New York, too.
The USDA said the freeze was temporary while it evaluates if it should take further actions related to “prospective” violations, and it did not specify an end date. Warren said approximately $35 million had been in jeopardy out of $63 million in active USDA awards.
The federal government has never frozen funds to an academic institution for violating Title IX, even in cases when colleges have systematically mishandled campus sexual assaults.
The most severe penalty is typically a fine, said Regina Federico, a lawyer who works on Title IX cases with the law firm Nesenoff & Miltenberg in Boston. The federal government has also resolved complaints by monitoring institutions while they fix any violations.
The USDA did not respond to questions from the BDN about why it originally said it would freeze funding and then decided not to.
The news late Wednesday that the USDA would not pull funds was reminiscent of a similar episode last week when the federal government said it would allow Maine to reapply for a multi-million dollar marine research grant after it abruptly pulled the money on Feb. 28, a week after Mills refused to back down to Trump at a White House event.
On Wednesday night, University of Maine System Chancellor Dannel Malloy and University of Maine President Joan Ferrini-Mundy said they were grateful to learn from U.S. Sen. Susan Collins, a Republican, that the USDA had agreed to change course, describing how the federal funds have allowed Maine to grow its natural resource economy.
“One needs to look no further than Maine’s iconic wild blueberry industry, which has enjoyed a 500% increase in production over the past five decades because of world-class UMaine research and innovation directly supported by federal and state funding,” they wrote in a joint statement. They added that they were “eager to put the whiplash and worry of recent weeks behind us and keep up our good work to move Maine forward.”
To Oppenheimer, the Title IX expert, the federal government’s actions don’t appear to be focused on creating fairness in athletics.
“This looks like it is all about just punishing Maine,” she said.
Reporter Callie Ferguson may be reached at [email protected]. Maine Focus Editor Erin Rhoda may be reached at [email protected].
