
More Executive Orders and Federal Guidance Impacting Educational Institutions
Jan 31, 2025
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- Executive Order 14173: “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”
Summary
On January 21, 2025, the President issued Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which addresses diversity, equity and inclusion (DEI) programs and initiatives, along with an accompanying Fact Sheet.
The Executive Order primarily addresses DEI programs within the federal government. As to private employers, it encourages, but does not mandate, that they end what is referred to as “illegal DEI discrimination and preferences.” The Executive Order also discusses educational institutions and directs the Attorney General and Secretary of Education to issue guidance “regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023)”, the U.S. Supreme Court decision that held that race-based admissions in colleges and universities are unconstitutional. Finally, the Executive Order revokes prior executive orders that addressed and encouraged DEI programs.
Implications
Executive Order 14173 does not constitute a national ban on DEI programs or initiatives. Nor does it create any requirements or prohibitions that immediately impact educational institutions or the communities they serve. State and federal anti-discrimination laws remain in effect. Robbins Schwartz will provide further updates once the guidance regarding educational institutions is issued. In the interim, if educational institutions receive any complaints alleging discriminatory DEI practices or programs, they should contact legal counsel.
Timeline
The Attorney General and Secretary of Education are to issue guidance regarding compliance with Students for Fair Admissions and a plan “to deter DEI programs or principles … that constitute illegal discrimination” within the next 120 days.
- Executive Order: “Ending Radical Indoctrination in K-12 Schooling”
Summary
On January 29, 2025, the President issued an executive order titled “Ending Radical Indoctrination in K-12 Schooling” to prevent practices by K-12 schools that “indoctrinate their children in radical, anti-American ideologies while deliberately blocking parental oversight.” The Executive Order 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 a strategy to the President that primarily contains recommendations and a plan for eliminating Federal funding or support for efforts in K-12 schools that advance “gender ideology” and “discriminatory equity ideology”.
The Executive Order refers to a previous executive order defining “gender ideology” as that which “replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity.” It defines “discriminatory equity ideology” as that which “treats individuals as members of preferred or disfavored groups, rather than as individuals, and minimizes agency, merit, and capability in favor of immoral generalizations.”
Additionally, the Order requires that the plan submitted to the President outline each federal agency’s process to prevent federal funds from being used by schools to directly or indirectly support the “social transition” of a minor student. It defines “social transition” as the “process of adopting a ‘gender identity’ or ‘gender marker’ that differs from a person’s sex” and can include “psychological or psychiatric counseling or treatment by a school counselor or other provider; modifying a person’s name…or pronouns;…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.” The Executive Order directs the Attorney General to coordinate with State attorneys general and local district attorneys to file “appropriate actions” against K-12 teachers and school officials who sexually exploit minors, unlawfully practice medicine, and unlawfully facilitate the social transition of a student.
Finally, as part of “additional patriotic educational measures”, all schools are required to hold an educational program on the United States Constitution on September 17th of each fiscal year that it receives federal funds.
Implications
While the involved federal agencies devise a plan and present their recommendations to the President, no immediate action to rescind or prevent access to federal funds by educational institutions has occurred. Additionally, no further guidance has been issued by any agencies as to the extent or manner in which any enforcement actions may occur for individuals or educational institutions. Pending further action, state and federal anti-discrimination laws remain in effect. Moreover, state law containing curriculum requirements, including recognizing the historical contributions of Black and LGBTQ+ people, remains in effect. In light of the potential conflict between the Executive Order and state and federal laws, we recommend that you contact legal counsel if you receive complaints or questions. We will continue to monitor for developments and advise accordingly.
Timeline
An “Ending Indoctrination Strategy”, along with recommendations and a plan, is due to the President in the next 90 days.
- OCR Title IX Dear Colleague Letter
Summary
The U.S. Department of Education, Office for Civil Rights (OCR) issued a Dear Colleague Letter on January 31, 2025, clarifying the Department’s position that OCR will enforce Title IX under the 2020 Title IX Rules. Such is consistent with the Trump Administration’s Executive Order 14168 (“Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”) and the recent court decision in Tennessee v. Cardona, which we discussed in the January 21, 2025 Robbins Schwartz Legal Update. OCR further clarified that any open Title IX investigations initiated under the 2024 Title IX rules should be “immediately reoriented” to comply with the 2020 Title IX Rules.
Implications
This Dear College Letter provides further clarity regarding which Title IX rules educational institutions should apply to any new or existing Title IX grievances.
Timeline
Educational institutions should follow the 2020 Title IX regulations, effective immediately. The Robbins Schwartz 2020 Title IX Toolkit materials will be made available to those who previously purchased our Title IX materials. The Toolkit includes a webinar reviewing the 2020 Title IX regulations, forms and notification letters, and corresponding policy and procedures. If you have questions related to our Title IX Toolkit or would like to purchase such, please contact marketing@robbins-schwartz.com.
- EEOC Announcement on Executive Order Compliance
Summary
On January 28, 2025, The Equal Employment Opportunity Commission (EEOC) issued, Removing Gender Ideology and Restoring the EEOC’s Role of Protecting Women in the Workplace, fashioned as a press release and citing the President’s recent Executive Order 14168. The release details immediate actions being taken by the Commission including removing the agency’s “pronoun app” which allowed employees to identify preferred pronouns, ended the use of the “X” gender marker and “Mx” as a prefix option on the forms, commenced a review of the EEOC “Know Your Rights” posters, and removed materials promoting gender ideology on the EEOC internal and external websites, documents, and social media accounts. The Release also states that one of the EEOC’s new priorities is to “defend the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”
Implications
The EEOC must act by majority vote in issuing certain documents, and it is unclear whether the Press Release issued by the Acting Chair of the EEOC, Andrea Lucas reflects proper authority. The Acting Chair for instance could not unilaterally remove, modify, or rescind some documents, including existing EEOC guidance and plans related to gender identity such as the Commission’s Enforcement Guidance on Harassment in the Workplace, the EEOC Strategic Plan 2022-2026, and the EEOC Strategic Enforcement Plan Fiscal Years 2024-2028. Due to vacancies on the Commission created by President Trump’s removal of two Commissioners, the Commission does not have a quorum and no action toward Lucas’ proposed changes to existing guidance or strategic plans can occur. The EEOC has authority to investigate and litigate against state and local government employers for violations of federal law, including complaints under Title VII. Lucas’ actions suggest that the EEOC will rescind previously issued guidance and that the EEOC will not be receptive to sexual harassment or discrimination claims based upon gender identity.
The Supreme Court and the State of Illinois have recognized rights based upon gender identity. Illinois has enacted legislation which includes gender identity as a protected classification under the Illinois Human Rights Act. Additionally, in Bostock v. Clayton County, the Supreme Court determined that a cause of action for sexual harassment or discrimination does exist when based upon gender identity, although the court expressly limited its decision stating the decision did not address “bathrooms, locker rooms, or anything else of the kind.” We recommend that institutions discuss questions about their responsibilities under Title IX and Title VII with legal counsel in order to comply with the governing laws.
Timeline
The removal of the pronoun app, “X” marker and “Mx” as an option on EEOC forms, removal of materials promoting gender identity, and review of EEOC posters has already commenced. Changes to existing documents that require a majority of the Commission cannot occur until such time as the Commission can establish a quorum and obtain sufficient votes for changes.