In light of the pace in which President Trump is issuing executive orders (EO) and agency directives, those involved in public education are finding it hard to keep up and to understand the import of his actions. The purpose of this legal update is to provide information that school districts need to know about two recent executive orders relevant to public schools, Ending Radical Indoctrination in K-12 Schools (January 29, 2025) and Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government (January 20, 2025), and to provide a brief update on the Title IX regulations.
Ending Radical Indoctrination in K-12 Schools, January 29, 2025.
This EO directs the Secretary of Education, the Secretary of Defense, and the Secretary of Health and Human Services, in consultation with the Attorney General, to provide Trump an “Ending Indoctrination Strategy” which contains recommendations and a plan for eliminating funding and support for “illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology.” The EO does not explain what illegal indoctrination means but does require a process to prevent or rescind federal funding used to support the “social transition of a minor student,” and policies and practices relied on to withhold information from parents.
In addition, the EO directs the Attorney General to work with State attorney generals and local district attorneys to enforce the law. This includes “filing appropriate actions against K-12 teachers and school officials who violate the law” by “sexually exploiting minors,” “unlawfully practicing medicine by offering diagnoses and treatment” and “otherwise unlawfully facilitating the social transition of a minor student.” Again, the EO does not define what may be included in “appropriate actions.”
While the substantive content of this EO may be alarming to district officials and staff, we expect that the process described in this EO will take time, will be met with legal challenges, and will be flushed out, clarified, and narrowed over time on a state-by-state basis. There is no directive to school districts at this time and we advise districts to stay the course with respect to curriculum, programs, activities, and student support.
Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government (January 20, 2025).
This EO declares that it is the policy of the United States to recognize two sexes, male and female and that these sexes are not changeable. The policy also declares that “gender ideology,” which permits self-assessed gender identity, is not a synonym for “sex” and is internally inconsistent with the policy set forth in the EO.
The EO directs the Executive branch to enforce all federal laws based on the two sexes identified in the order and the Secretaries of State and Homeland Security, and the Director of the Office of Personnel Management to require that government-issued identification documents, including passports, visas, and Global Entry cards, accurately reflect the holder’s sex.
Federal agencies are further directed to “take all necessary steps, as permitted by law, to end the Federal funding of gender ideology.”
Finally, the EO directs the Attorney General to immediately issue guidance to federal agencies to correct the misapplication of the Supreme Court’s decision in Bostock v. Clayton County (2020) to sex-based distinctions in agency activities. The EO does not explain how administration will set aside a United States Supreme Court decision.
Like the EO examined earlier in this update, this EO does not direct school districts to take any action now. As we have discussed in previous legal updates, Seventh Circuit Court of Appeals’ opinions including Whitaker v. Kenosha Unified School District and A.C. v. Metropolitan School District of Martinsville prohibit discrimination on the basis of gender identity. These Seventh Circuit decisions are still binding precedent and Wisconsin school districts should continue to abide by the rulings therein.
Title IX Regulations
On February 4, 2025, the United States Department of Education (“Department”) issued a Dear Colleague Letter, clarifying that the Department will enforce Title IX under the provisions of the 2020 Title IX regulations rather than the 2024 regulations. This letter came on the heels of the decision in Tennessee v. Cardona vacating the 2024 Title IX regulations. The letter also states that the Department will enforce Title IX based on two sexes, consistent with the EO issued on January 20, 2025, and discussed above.
Finally, the EO directs all recipients of federal funding including school districts to reevaluate Title IX investigations initiated under the 2024 Title IX Rule to ensure consistency with the requirements of the 2020 regulations.
Conclusion
We will continue to monitor the actions of the new administration and provide updates to our clients on all matters relevant to school districts. In addition, the attorneys at Renning, Lewis & Lacy, s.c., are available to consult further on the issues discussed in this update.
