303-776-9900The Trump Administration continues to express its priorities related to education with executive orders and other frequent communications. Some of the recent executive orders are largely informational and do not include substantive changes to how schools must operate. As part of our commitment to keep you up to date on developments in education law, we summarize these most recent announcements and their potential implications for you below. This update includes two executive orders addressing education that President Trump signed on January 29, 2025, as well as an update on book bans from the U.S. Department of Education’s Office of Civil Rights (OCR)
SCHOOL CHOICE AND CURRICULUM-RELATED EXECUTIVE ORDERS
Executive Order: Expanding Educational Freedom and Opportunity for Families. In this executive order, President Trump voices his intention to increase school choice and “support parents in choosing and directing the upbringing and education of their children.” While the order announces the President’s desire to increase school choice, it does not itself make substantive changes to current law. Rather, the order requires various departments of the federal government to issue guidance within 60 to 90 days (depending on the guidance requested) on how federal funds may be used to support school choice. The requested information includes guidance from: (1) the Secretary of Education regarding how States can use Federal formula funds to support K-12 educational choice initiatives; (2) the Secretary of Health and Human Services regarding whether and how States receiving block grants, including the Child Care and Development Block Grant, can use them to expand school choice; and (3) the Department of Defense and the Secretary of the Interior, regarding how students connected to the military or the Bureau of Indian Education may use federal funds to attend schools of their choice, including private, faith-based, and public charter school options.
The order also addresses discretionary grant programs of the Secretary of Labor and Secretary of Education, directing both to evaluate their respective grant programs and identify opportunities for using these programs to expand “education freedom”. The Secretary of Education is to include “education freedom” as a priority in discretionary grant programs.
Until the guidance from the various departments of the federal government comes out, there is not anything to do on the local level.
Ending Radical Indoctrination in K-12 Schooling. In this executive order, President Trump voices his desire to end “illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology.”
The order adopts the definition of “gender ideology” from an earlier executive order, as “replac[ing] the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex.” (Executive Order Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, January 20, 2025). The order defines “discriminatory equity ideology” as “ideology that treats individuals as members of preferred or disfavored groups, rather than as individuals, and minimizes agency, merit, and capability in favor of immoral generalizations. . .” The examples of discriminatory equity ideology subsequently provided include any nod toward an idea of systemic oppression or privilege based on race, color, sex, or national origin.
The order expresses the President’s desire to pull federal funding from any K-12 programs (including K-12 teacher education, certification, licensing, employment or training programs) that support gender ideology and discriminatory equity ideology. A team of federal officials, including the Secretary of Education, is to provide the President with recommendations on how to implement a policy to achieve these goals within 90 days. The order expresses a concern that discussion of gender ideology at school may violate parental rights under the Federal Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA), though the order does not point to specific violations that could allegedly be occurring.
The order also expresses the President’s desire to promote “patriotic education” that focuses on the positive qualities of the United States’ founding and foundational principles and the celebration of the country’s history. To support this objective, the President is reestablishing The President’s 1776 Commission within the Department of Education to perform primarily advisory tasks related to the promotion of “patriotic education.” A related provision of the order directs all relevant federal agencies to enforce the requirement that each educational institution that receives federal funding hold an educational program for students on the U.S. Constitution each September 17th.
As an umbrella, the order states that the “Administration will enforce the law to ensure that recipients of Federal funds providing K-12 education comply with all applicable laws prohibiting discrimination in various contexts and protecting parental rights, including Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq.; Title IX, 20 U.S.C. 1681 et seq.; FERPA, 20 U.S.C. 1232g; and the PPRA, 20 U.S.C. 1232h.”
These are not new requirements, but existing obligations to comply with current law.
OFFICE OF CIVIL RIGHTS BOOK BAN UPDATE
On January 24, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a press release announcing the dismissal of all book ban cases pending in front of the OCR and the elimination of the OCR book ban coordinator position. The press release explains the OCR’s current position that the cases dismissed did not involve book bans, but proper oversight by parents and community stakeholders who evaluated and removed age-inappropriate materials. “Because this is a question of parental and community judgment, not civil rights, OCR has no role in these matters.”
It does not appear that the OCR will hear future challenges to book bans based on alleged violations of students’ civil rights.
NEXT STEPS
The executive orders described above communicate the President’s priorities; however, the actions needed to pursue these priorities have not yet been developed. More substantial developments may arise in the next two to three months as the President receives his requested guidance. Such guidance may set up a clash between the Federal government and states over local control and the attempt to dictate curriculum through the withholding of federal funds. Nevertheless, current law clearly provides for state control over curriculum. Specifically, 20 U.S.C.A. § 1232a, prohibits federal control of education:
No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system[.]
CONCLUSION & RECOMMENDATIONS
At this time, our recommended course of action is to continue to adhere to federal law, state law, and board policies. We will continue to monitor the situation and provide an update if we recommend a different course of action based on new developments. If specific concerns about these updates arise at your schools, we at Lyons Gaddis would be happy to work with you to address your specific situation. We have additionally collected a number of resources regarding these topics and are happy to share upon request. Contact our School Law attorneys, Adele Reester, Catherine Tallerico, and Robyn Smith for assistance.
Our team of over 30 attorneys makes Lyons Gaddis Northern Colorado’s largest law firm while our organization into distinct practice groups allows us to provide fast, efficient and effective service to you and your business. Our groups include business, real estate, water law, government issues, school and special districts, civil litigation, family law and personal injury work. For more information, please visit www.lyonsgaddis.com
