During the first days of President Trump's second term of office, he issued executive orders rescinding many Biden-era executive orders and addressing a wide range of initiatives and issues that were a focus of his election campaign.
It is important to note that most of these orders address policies or operations of the federal government and its agencies, and do not impose any immediate obligations or prohibitions on independent schools. They may, however, impact independent schools in indirect ways and may inform schools on what to expect from the Trump administration for the next four years.
Immigration Enforcement
In the hours following his inauguration, Trump issued executive orders concerning immigration, including declaring a national emergency at the Mexico border; launching new enforcement policies to address illegal entry, unlawful presence, and removal of undocumented immigrants in the U.S.; and ending birthright citizenship for children of undocumented immigrants and other foreign nationals on certain temporary visas, the latter of which has already been challenged as unconstitutional.
The Department of Homeland Security (DHS) then rescinded a 13-year-old policy that prevented U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP) agents from entering "sensitive locations" when conducting enforcement activities, including schools.
Given the recission of this policy, it is important to understand what rights and obligations schools and immigration officers have if they come to conduct immigration actions at a school. More information about those rights and obligations can be found here.
K-12 Education
On January 29, Trump issued an executive order, "Ending Radical Indoctrination in K-12 Schooling." In it, he calls for the secretaries of Education, Defense, and Health & Human Services and the attorney general to advise him of a policy, called the "Ending Indoctrination Strategy," that will "eliminate federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology." Among other things, the executive order defines "discriminatory equity ideology" to include the following:
- That an individual, by virtue of the individual's race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
- That an individual, by virtue of the individual's race, color, sex, or national origin, bears responsibility for, should feel guilt, anguish, or other forms of psychological distress because of, should be discriminated against, blamed, or stereotyped for, or should receive adverse treatment because of actions committed in the past by other members of the same race, color, sex, or national origin, in which the individual played no part
The executive order calls for the re-establishment of the President's Advisory 1776 Commission, whose purpose is to "promote patriotic education," and advises administrative agencies to "prioritize federal resources…to promote patriotic education." The executive order defines a "patriotic education" as one that has "an accurate, honest, unifying, inspiring, and ennobling characterization of America's founding…[and] a clear examination of how the United States has admirably grown closer to its noble principles throughout its history."
Neither the call for the Ending Indoctrination Strategy nor the promotion of "patriotic education" will have an immediate direct impact on independent schools. With regard to both issues, the fundamental call is for the administrative agencies (i.e., the federal Department of Education) to prevent the issuance of or rescind federal funds to those schools that are not in compliance with the policies to be developed.
Expanding Educational Freedom
Trump also issued an executive order titled "Expanding Educational Freedom and Opportunity for Families" on January 29. In it, the president asserts that "many children do not thrive in their assigned, government-run K-12 school." Accordingly, the directive is for the secretaries of various administrative agencies to assess guidance on how the Child Care and Development Block Grant program can be used for families seeking to enroll in private or faith-based options, as well as how military families and students eligible to attend Bureau of Indian Education schools can use federal funding to attend private or faith-based schools.
It will be important to assess the forthcoming guidance from the respective administrative agencies to determine whether and the extent to which independent schools may incur additional obligations, including additional federal non-discrimination obligations, as result of participation in any such programs as may be implemented in furtherance of the directive to expand educational freedom.
LGBTQ+ Protections
On his first day in office, Trump issued several executive orders establishing his administration's position on recognition of LGBTQ+ individuals, establishing a federal policy of recognizing only two unalterable sexes, male or female, and instructing federal agencies to enforce federal laws in a manner consistent with this policy.
The executive order calls for official government documents, such as passports and visas, to allow applicants to choose between only two sexes. The order also directs the attorney general to instruct federal agencies that civil rights laws that prohibit discrimination based on sex, such as Title IX (pertaining to sex discrimination in schools accepting federal funding) and Title VII (pertaining to sex discrimination in employment), do not apply to discrimination based on gender identity or sexual orientation. It also orders the rescission of federal guidance regarding discrimination based on gender identity and sexual orientation, including the Equal Employment Opportunity Commission's April 2024 Enforcement Guidance on Harassment in the Workplace.
While this order demonstrates a stark departure from the previous administration's stance on the recognition and protection of the rights of LGBTQ+ individuals, it does not overrule Supreme Court precedent in Bostock v. Clayton County (2020), which expressly held that Title VII's prohibition of sex discrimination in employment extended to discrimination based on sexual orientation and gender identity. Therefore, while federal agencies may be required to roll back LGBTQ+ protections in their own hiring policies as a result of Trump's executive action, independent schools should continue to comply with existing law.
It is important to remember that independent schools that do not accept federal funding are not covered by Title IX. As a result, independent schools still enjoy the discretion to set their own missions, policies, and initiatives regarding acceptance and inclusion of LGBTQ+ students.
Diversity, Equity, and Inclusion (DEI) Programs
Trump's early executive orders also targeted federal DEI programs . An executive order, "Ending Illegal Discrimination and Restoring Merit-Based Opportunity," revoked previous executive orders promoting DEI programs in federal agencies and government contracts. It also directs federal agencies to "enforce our longstanding civil-rights laws and to combat illegal private sector DEI preferences, mandates, policies, programs, and activities" and make recommendations designed to "encourage the private sector to end illegal discrimination and preferences, including DEI."
Importantly, the executive order does not impact independent schools' DEI programs and initiatives that are consistent with current civil rights laws. At a minimum, independent schools are required to comply with federal and state civil rights laws that ensure educational opportunities are provided on an equal basis and that schools' policies to not unnecessarily limit opportunities based on race or other protected characteristics. Beyond these requirements, independent schools may remain committed to fostering a learning environment where all students feel welcomed and valued.
Furthermore, the executive order does not alter the current state of the law as it pertains to admissions processes in K-12 independent schools. As previously discussed here, the recent Supreme Court decision Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) (SFFA), which was cited in the executive order, which held that the admissions processes at Harvard and the University of North Carolina violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment in the way the schools consider race, does not directly impact independent K-12 schools.
The Venable Independent School Law Practice Group is prepared to help independent schools navigate the changing legal landscape and ensure compliance. Independent schools with questions are encouraged to contact the authors for assistance.