Do SLO County schools have to follow Trump's executive orders? Here's a Reality Check

Yahoo

18-05-2025

As school districts around San Luis Obispo County clash over policies related to transgender students' participation in sports, calls to follow President Donald Trump's executive orders raise the question of what exactly constitutes federal law — and whether it supersedes state laws.
Trans student rights and diversity, equity and inclusion efforts in schools have come under significant fire during the second Trump administration.
Within the first 100 days of his term, Trump has signed multiple executive orders targeting trans students' participation in athletic programs and declaring that only two genders exist.
One SLO County petition in particular asks local school districts to 'adhere to Federal Law, respecting Title IX and Executive Orders.'
The Protect Our Kids petition, believed to be started by a group of North County parents, calls on local school districts to roll back policies that allow transgender students to participate in sports and use the bathrooms and locker rooms aligned with their gender identities.
'Sign this petition to show local school districts that they need to follow federal laws, not state laws that violate federal laws,' the local chapter of Moms for Liberty, a national parents rights organization that is strongly against teaching about or supporting LGBTQ+ identities in schools, wrote in a Facebook post.
The same debate has cropped up in the South County, where tensions have come to a head in a disagreement over a transgender student athlete's participation in sports and use of school locker room facilities in the Lucia Mar Unified School District.
The issue has taken over the public comment period at the two most recent school board meetings, where multiple people argued the need to fall in line with President Trump's executive orders.
Similar claims were made in the North County on Tuesday night, when crowds on both sides of the debate showed up to speak their minds at the Paso Robles Unified School District board meeting.
Some calls to comply with executive orders have conflated these presidential directives with federal law, but according to two lawyers The Tribune spoke to, they are not the same thing, and schools do not have a legal responsibility to follow executive orders.
So, what are executive orders and how broad is their mandate? The Tribune spoke to legal experts in constitutional law to discuss the role and power of executive orders as part of its Reality Check series.
As of May 12, Trump has signed 151 executive orders since taking office Jan. 20, according to the Federal Registrar.
He broke the record previously held by President Franklin D. Roosevelt's 99 executive orders signed his first 100 days of office, reaching 142 by April 29, CBS News reported at the time.
Among the orders, at least four deal with the topic of gender identity directly by attempting to limit access to gender affirming care for children, dictate trans students' participation in athletic programs, end education about transgender rights and declare only two genders exist. At least eight others mention the topic or reference previous related orders.
These executive orders, along with the Trump administration's interpretation of Title IX nondiscrimination law, have formed the foundation for the widespread denial of transgender student participation on school sports teams and use of school facilities that align with their gender identity.
But do they qualify as federal law?
The Tribune spoke to Professor Jessica Clarke at the University of Southern California School of Law, an expert on anti-discrimination law with a focus on sex and gender, and Wilson Freeman, an attorney at the conservative law firm Pacific Legal Foundation and former federal senior counsel and policy adviser at the Department of Labor under the first Trump administration. He litigates on the firm's equality and opportunity team against school district DEI policies they find to be racially discriminatory and unconstitutional.
The lawyers addressed the issue from different perspectives, but they agreed on the key point: Executive orders are not federal law.
'Executive orders are policy statements of the executive branch, but they are not necessarily the final say on what is the law,' Clarke told The Tribune. '... They are not direct commands. They're statements of policy, and they're indications of what it is that the federal government intends to do.'
While presidential orders can set out the policies of federal agencies, dictate how the agencies function and determine what programs they fund, they cannot command state or local governments or agencies, she said.
Freeman echoed the same message.
'As a formal matter, an executive order doesn't have any power or authority over state governments, state government agencies like school districts or the state law enforcement at all,' he said. 'State law is an entirely separate animal. State anti-discrimination law is not affected by an executive order.'
With respect to debates over transgender students' inclusion in sports, school districts are required to follow state law and state interpretations of Title IX federal education law, which in California includes protections against discrimination on the basis of gender identity, Clarke said.
With new executive orders that now say otherwise, this state interpretation is now in conflict with the Trump administration's interpretation.
One trio of attorneys explained the Trump administration's reinterpretation of Title IX in an article for University Business, a publication for leaders in higher education. As indicated in his early executive orders, it effectively narrows the scope of protections provided by Title IX by focusing solely on sex-based discrimination, excluding discrimination based on gender identity and removing protections for transgender and other non-cisgender people.
Meanwhile, based on the Supremacy Clause of the Constitution, when state and federal law conflict, federal law takes precedent, the two lawyers The Tribune spoke to said.
But the Trump administration's interpretation of Title IX is not the law, even though the president has set the federal policy forward in an executive order, they said.
Freeman said that it's 'not correct' to think of executive orders as federal law.
'That would be a misunderstanding,' he said. 'An executive order may announce or direct the federal government to adopt a particular understanding of federal law, but ultimately, that is just an understanding. It's not a new law.'
The only way to create a new federal law is for legislation to pass through Congress and be signed by the president, and that has not happened in the case of the Trump administration's interpretation of Title IX, Clarke said.
'Congress has not passed the law that explicitly reflects that interpretation, nor have the courts endorsed it,' she said of the executive orders on transgender students. 'Some federal courts have said Title IX actually requires that schools allow transgender women and girls to play women and girls sports as part of nondiscrimination, and so the Trump administration is pushing an extreme interpretation of that statute.'
In fact, a bill was introduced in Congress earlier this year that would've ended transgender student participation in women's and girls sports, but it failed on the Senate floor. Senate Bill 9 would have codified the Trump administration's interpretation of Title IX as exclusively focused on preventing sex-based discrimination, cementing Trump's executive orders — but it did not become law.
SLO County Superintendent of Schools James Brescia sent a letter to district superintendents and charter school directors on April 16 sharing the same message.
'While (executive orders) direct federal agencies to enforce the law, they do not create or change established law,' he said in the letter obtained by The Tribune.
Federal law, however, is 'extensive,' and executive orders can still have indirect sway, Freeman said.
'The president — even though he can't create new laws by himself — has enormous powers to affect the way those laws are understood, enforced, prosecuted, you know, in the way the federal money is is handed out,' he said.
Of particular importance, executive orders give the president authority to restrict federal dollars from flowing downstream to state agencies like school districts that do not comply with presidential orders.
But the state has the same authority for school districts in compliance with state law, and schools stand to lose much more from the state than from the federal government.
For example, in the Lucia Mar school district, roughly 87.5% of its total funding received — or $152.3 million of $174.1 million — comes from state-administered funds, compared to only 6% from the federal government, Curt Eichperger, Lucia Mar's assistant superintendent of business services, told The Tribune.
Some of the state funding is indirect federal money funneled through the state, but those dollars cannot be easily removed.
'The state government provides a significant majority of funding for California schools, and failure to comply with California law may result in the loss of state funding and expose (local educational agencies) to liability for discrimination or harassment based on both state and federal law,' Superintendent Brescia said in his letter.
Section 221.5 of the California Education Code, the state education law, says that students must 'be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records.' Section 220 of the Education Code also specifically prohibits discrimination on the basis of 'gender, gender identity, gender expression ... (and) sexual orientation.' Other school athletic governing bodies reiterate the same rules.
He said failure to follow state law may result in fines, lawsuits and elected officials and school administrators facing personal liability and losing their credentials.
Instead of asking the school board to take action, parents should be taking the issue up with their state government officials, Brescia said.
Freeman also said that even though executive orders cannot be regarded as federal law and do not have the power to rewrite them, there is some gray area in which they can influence the law's interpretation.
'To the extent the executive orders are discussing an understanding of federal law, there may be some cases in which ... they have some sort of relevance if the federal law then conflicts with a state law or state interpretation,' Freeman said.
Clarke said the Trump administration has been taking advantage of that gray area to issue threats, but it has not proven to follow through on them, Clarke said.
This is what happened in Maine, she said, where the Trump administration froze federal funding after previously concluding the state education system was 'violating federal law by allowing transgender athletes to play on women's teams,' the New York Times reported.
The state sued the administration in response, but in early May a deal was reached to drop the lawsuit and restore federal funding to Maine 'without ending any of its sports programs as is,' Clarke said.
'There is also a piece of political theater to it, right? They're trying to win political points, and they're trying to do that at the expense of transgender people. And so it's not necessarily the case that they're going to carry out these enforcement threats,' she said.
Ultimately, however, only the Supreme Court has final say over binding interpretations of federal law, and 'it remains to be seen what the Supreme Court is going to do (on gender-based discrimination),' Clarke said.
At the end of the day, the debate comes down our foundational values as a country more than the laws that govern us, Clarke said.
'We can talk about the executive orders and the requirements of federal and state and local law,' she said. 'But we also should be talking about what our Constitution means and what it means to protect everyone.'