On January 29, 2025, President Trump issued an Executive Order (“Order”) entitled “Ending Radical Indoctrination in K-12 Schooling.” The Order asserts that “schools indoctrinate children in radical, anti-American ideologies while deliberately blocking parental oversight.” The Order focuses on gender identity and diversity, equity, and inclusion programs, and follows a series of Executive Orders addressing those issues in other contexts.
As in other Executive Orders, this Order starts with detailed definitions. The Order first incorporates the definitions set out in the January 20, 2025, Executive Order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” (which includes definitions for “sex,” “women,” “men,” “female,” “male,” “gender ideology,” and “gender identity”), and then puts forth additional definitions for “discriminatory equity ideology,” “patriotic education,” and “social transition.”
The Order then sets out an “Ending Indoctrination Strategy,” which requires the Secretaries of Education, Defense, and Health and Human Services to create recommendations for (1) “eliminating Federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology,” and (2) protecting parental rights in alignment with the goals of the Order. The “End Indoctrination Strategy” also requires the agencies to identify federal funds that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology *** or support or subsidize the social transition of a minor student, including through school staff or teachers or through deliberately concealing the minor’s social transition from the minor’s parents.” The “Ending Indoctrination Strategy” recommendations must then include each agency’s process to prevent or rescind the use of such federal funds going forward.
The Order also states that “The Attorney General shall coordinate with State attorneys general and local district attorneys in their efforts to enforce the law and file appropriate actions against K-12 teachers and school officials who violate the law by: (i) sexually exploiting minors; (ii) unlawfully practicing medicine by offering diagnoses and treatment without the requisite license; or (iii) otherwise unlawfully facilitating the social transition of a minor student.”
In multiple instances, the Order confirms that it is to be implemented consistent with applicable laws. As discussed below, several statements in the Executive Order appear to stretch existing legal parameters.
The Order uses very strong language, but does not require or mandate any specific actions by school districts at this time. The implementation of the Order will be under very close scrutiny, and no doubt subject to litigation. There are several points that school districts should be aware of at this point:
- Existing state law prohibits the sexual exploitation of students and the unlawful practice of medicine, and school districts already have clear procedures in place to address any such concerns.
- While this and other Executive Orders have caused much uncertainty, threats of prosecution against educators for “unlawfully facilitating the social transition of a minor student” appear to lack legal foundation in current federal law. Districts should continue to monitor the activity of the federal Department of Education, the Executive Branch, and state guidance. Individual staff who are concerned about this should contact their supervisor or union.
- Most Oregon school districts have policies establishing supports and protections for students and staff regarding gender identity. These policies align with Oregon law, which prohibits discrimination on the basis of gender identity. These policies are required under Oregon law, and, at this time, do not conflict with existing federal civil rights laws. In light of state law and the mission of many districts to have an inclusive environment for students and staff, school districts are advised to not make changes to their current policies and practices regarding gender identity without ongoing evaluation of the landscape and consultation with counsel.
- While the Order directs federal agencies to evaluate and report back on how to limit federal funding as described above, the Executive Branch has limited authority to put conditions on federal funds. Article I, Section 8 of the United States Constitution gives Congress (not the Executive Branch or federal agencies such as the Department of Education) authority over the terms of federal spending in most instances. The Executive Branch can only impose conditions on federal funding when Congress has delegated that authority to the Executive Branch. There are dozens of federal grants and programs through which school districts can receive federal funds. Any effort by the Executive Branch to impose conditions on these funding mechanisms will undoubtedly be subject to litigation, which could take months to resolve. The Executive Branch may also encourage Congress to adopt restrictions on federal funding, which again could be a time-consuming process.
School districts may have also heard that the federal Department of Education’s Office for Civil Rights (OCR) opened an investigation into a school in Denver Public Schools regarding the school’s transformation of a girls’ bathroom into a gender-neutral bathroom. OCR is evaluating whether that action violated Title IX. If an Oregon school district receives a complaint from OCR regarding gender-neutral facilities, the district is encouraged to contact counsel.
Finally, the Order reestablishes the “1776 Commission,” requires the federal Department of Education to provide support for the 1776 Commission’s activities in “promoting patriotic education,” and requires federal agencies to prioritize resources supporting various civics education programs.
The Miller Nash education team continues to closely monitor legal developments, and we are here to help with any questions you may have.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
