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By:  Alexandria Hodge, Esquire (with editorial review and consultation provided by PK Law’s Education Group)

On January 29, 2025, President Donald Trump issued two Executive Orders (“Order[s]”) entitled “Ending Radical Indoctrination in K-12 Schooling” and “Expanding Educational Freedom and Opportunity for Families.”[1] The following guidance is in response to the potential implications the Orders have for public school boards in Maryland. In short, the Orders do not require public schools to take any action at this time.

Ending Radical Indoctrination in K-12 Schooling

The basis for the Order entitled “Ending Radical Indoctrination in K-12 Schooling” is that “schools indoctrinate [ ] children in radical, anti-American ideologies while deliberately blocking parental oversight.” The Order follows a series of related Executive Orders and addresses the same priority policy initiatives in the K-12 education context, including gender identity; race theory education; and diversity, equity, and inclusion (“DEI”) programs. The order also re-establishes the President’s Advisory 1776 Commission (“1776 Commission”),[2] which is intended to promote “patriotic education.”

The Order uses strong language but does not require or mandate any specific actions by school boards  currently. This will likely change as the implementation of this Order takes effect in the coming months. The Order confirms that it is to be implemented consistent with applicable laws.

What’s in the Order

      Definitions

 The Order incorporates the definitions for “sex,” “women,” “men,” “female,” “male,” “gender ideology,” and “gender identity” set out in the January 20, 2025, Executive Order “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” Executive Order 14168 (2025). The Order outlines additional definitions for “discriminatory equity ideology,” “patriotic education,” and “social transition.”

The Order defines “discriminatory equity ideology” as an 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, including that members of one race, color, sex, or national origin are morally or inherently superior to members of another race, color, sex, or national origin.” It prohibits any messaging that “the United States is fundamentally racist, sexist, or otherwise discriminatory.”

“Social transition” is defined as “the process of adopting a ‘gender identity’ or ‘gender marker’ that differs from a person’s sex.  This process can include psychological or psychiatric counseling or treatment by a school counselor or other provider; modifying a person’s name (e.g., ‘Jane’ to ‘James’) or pronouns (e.g., ‘him’ to ‘her’); calling a child ‘nonbinary;’ use of intimate facilities and accommodations such as bathrooms or locker rooms  specifically designated for persons of the opposite sex; and participating in school athletic competitions or other extracurricular activities specifically designated for persons of the opposite sex.”

     Ending Indoctrination Strategy

The Order then sets out an “Ending Indoctrination Strategy.” The strategy requires the U.S. Secretaries of Education, Defense, and Health and Human Services to create recommendations for “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 protecting parental rights.

The 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” and include each agency’s process to prevent or rescind the use of such federal funds.

     Potential Liability for School Officials and Teachers

The Order states, “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.”

Fourth Circuit Precedent Prohibiting Discrimination Based on Gender Identity and

     Transgender Status

 Maryland school districts and schools are still required to follow the U.S. Court of Appeals for the Fourth Circuit and Maryland federal court precedent regarding protections for students based on their gender identity. President Trump’s Orders do not overturn the decisions of the federal appellate courts.

In Grimm v. Gloucester Cty. Sch. Bd. (4th Cir. 2020), the Fourth Circuit held that a school board’s policy prohibiting transgender students from using restrooms that did not match their biological genders violated the student’s rights under both Title IX and under the 14th Amendment Equal Protection Clause. Additionally, in M.A.B. v. Bd. of Educ. Of Talbot Co. (D. Md. 2018), the District Court reasoned that a school policy denying a transgender student from using the locker room associated with the student’s gender identity was likely a violation of the student’s equal protection rights under the 14th Amendment as well as under Title IX. More recently, in B.P.J. v. West Virginia State Bd. of Educ. (4th Cir. 2024), the Fourth Circuit ruled that a West Virginia law prohibiting students from participating in athletic teams on the basis of their gender identity violated Title IX.

Therefore, regardless of the Order, Maryland school systems must still follow binding judicial precedent requiring the protection of students from discrimination based on their gender identity, including transgender status

The Status of Title IX

Title IX of the Education Amendments of 1972 (“Title IX”) is the federal law that prohibits sex discrimination in educational programs that receive federal funding. The most recent Title IX regulations that went into effect on August 1, 2024 (“2024 Regulations”) were vacated nationwide by a federal court in the Eastern District of Kentucky on January 9, 2025. Therefore, arguably,[3] the prior Title IX regulations that took effect on August 14, 2020 (“2020 Regulations”) are back in effect. The U.S. Department of Education’s Office of Civil Rights (“OCR”) will investigate all future allegations of sex discrimination under the 2020 Regulations.[4]

Parents Receiving Relevant and Important Information About their Children

Parents continue to have the right to receive relevant and important information about their children. Under the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. 1232g, 34 C.F.R. Part 99, parents and guardians have a right to access their child’s education record, including any documentation related to their child’s preferred name, pronouns, and gender identity, if such documentation exists. School districts should continue their long-standing practices of involving parents in all important decision making related to students.

Federal and State Laws Prohibiting Discrimination Based on Race

The Order uses strong language on race and DEI programs. However, all federal and state laws prohibiting discrimination against individuals based on race and ethnicity remain unchanged.

It is important to note that the Order has no impact on Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination against employees or applicants based on race, color, religion, sex, or national origin. Additionally, school districts are still obligated under Md. Code Ann., State Gov. § 20-602 to provide equal opportunity in receiving employment and in all labor management-union relations regardless of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, gender identity, disability, or genetic information. School districts should avoid making employment decisions based on race. See Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 2658 (2009) (Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who are more qualified for the position).

Expanding Educational Freedom and Opportunity for Families

The basis for the Order entitled “Expanding Educational Freedom and Opportunity for Families” is that the “public education system fails such a large segment of society, [which may] hinder our national competitiveness and devastates families and communities.” The Order instructs the U.S. Department of Education to free up federal funds to expand school choice programs and instructs the Secretary of Education to issue guidance to states about federal allocations to districts and schools. It also instructs the Department of Health and Human Services to issue guidance and recommendations for how states receiving block grants for families and children can use that money for faith-based and private institutions.

The Blueprint for Maryland’s Future

The Order confirms that it is to be implemented consistent with applicable laws. The Blueprint for Maryland’s Future (“the Blueprint”) requires  local boards to provide charter schools with funding that is commensurate with amounts that other schools receive. See Md. Code Ann., Educ., §§ 5-234 (establishing that, under the Blueprint, the “minimum school funding” amount is “at least 75% of the per pupil amount” with the remaining 25% available to spend centrally based on each school system’s budgetary requirements) and 9-109 (requiring a local board to “disburse to a public charter school an amount of county, State and federal money for elementary, middle, and secondary students that is commensurate with the amount disbursed to other public schools in the local jurisdiction” excepting a 2% administrative fee); In the Matter of Commensurate Funding for Frederick County Charter Schools, MSBE Op. No. 23-27 (2024); In the Matter of Baltimore City Public Schools Mandatory Blueprint Fee, MSBE Op. No. 23-17 (2023). It is unclear at this time how this federal initiative will interact with the Blueprint. At present,  local boards are required to follow the charter school funding formula outlined in the Blueprint and Maryland state law.

PK Law’s Education, Labor, and Employment Team will continue to closely monitor these legal developments and provide updates and guidance as the situation evolves. Please reach out with any questions.

Alexandria Hodge is an Associate in PK Law’s Education, Labor and Employment Group. She graduated cum laude from the University of Baltimore School of Law, earned her Master’s in English Education and Curriculum from the University College London, completed her teacher residency and Master’s in Interdisciplinary Education Studies and Graduate Certificate in Urban Education Policy from the Johns Hopkins University, and received her Bachelor’s in Writing, with a minor in English literature, from the University of Nebraska at Omaha. Prior to joining PK Law, Ms. Hodge was an Associate School Law Attorney, acting as general counsel for public school district clients in Pennsylvania, served as a law clerk for the Chief Administrative Law Judge at the U.S. Department of Education, Office of Hearings and Appeals, clerked with the Children’s Guild Charter Schools and the Maryland Office of the Attorney General, Department of Education. Prior to becoming an attorney, Ms. Hodge was an English literature and special education reading teacher in public schools.

[1]  Federal Register citations are forthcoming and are expected sometime during the week of February 3, 2025. See Federal Register, Executive Orders (accessed January 30, 2025), https://www.federalregister.gov/presidential-documents/executive-orders.

[2]  Established first by Executive Order 13958 (November 2, 2020) and terminated by Executive Order 13985 (January 20, 2021).

[3] It is debatable whether the decision in B.P.J. v. West Virginia State Bd. Of Educ. means the 2020 Title IX regulations are automatically back in effect as they should have to go back through the notice and comment requirements of the Administrative Procedure Act (APA). Regardless it is clear that the U.S. Department of Education will not appeal the decision and a January 31, 2025 “Dear Colleague Letter” (DCL) issued by the U.S. Department of Education’s Office for Civil Rights (OCR) make it clear that it will enforce Title IX of the Education Amendments of 1972 under the provisions of the 2020 Title IX Rule.

[4] Under the 2020 Regulations, OCR interpreted the definition of “sex” under Title IX to include gay, lesbian, and transgender individuals following the Supreme Court’s ruling in Bostock v. Clayton County, holding that employment discrimination based on sexual orientation or gender identity was a violation of Title VII. See Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020); U.S. Dep’t of Justice, Civil Rights Division, Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (Mar. 26, 2021), https://www.justice.gov/crt/page/file/1383026/dl?inline. It is unclear how OCR will approach protections for LGBTQ+ persons under the 2020 Title IX Regulations given the new definitions for “sex,” “women,” “men,” “female,” and “male” outlined in the Executive Order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which is incorporated into the Order titled “Ending Radical Indoctrination in K-12 Schooling.”  Executive Order 14168 (2025).

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