Serving Two Masters: When State Law and Federal Guidance Conflict
Recent executive actions on education civil rights— including those purporting to restrict affirmative action and diversity, equity, and inclusion (DEI) initiatives, prohibit teaching divisive concepts in classrooms, and ban transgender females from girls’ and women’s sports—have left many in the education space scratching their heads about how to respond. The Department of Education’s Office for Civil Rights is undoubtedly developing informal guidance on these issues and has already initiated investigations regarding issues like transgender student bathroom access and antisemitism that appear to align with the White House’s new priorities.
While executive orders and guidance documents like Dear Colleague Letters do not create binding legal obligations, they signal how federal agencies intend to enforce existing laws. This means institutions may feel pressure to align with new interpretations, even if they lack the full force of law. Pressure could come not just from OCR complaints but also from internal complaints from parents or students or pressure from groups entirely unrelated to the institution. So even if questions remain about whether institutions are required to take immediate action absent a clear legal mandate, all educational institutions should begin thinking now about how they will react if the pressure becomes too much to ignore.
What should educational institutions do if novel federal interpretations contradict established state laws? Making the wrong move could lead to legal challenges, funding consequences, or community backlash. What are the key questions institutions should ask to navigate this complex landscape?
If past trends are any indication, we will see institutions in states with protections in place that conflict with federal actions and guidance striking a delicate balance. For example, although President Joe Biden’s Department of Education took the stance that Title IX protected transgender students’ rights to play on teams matching their gender identity, institutions in certain states, like Texas, decided to follow state law restricting access anyway. In that case and others, state attorneys general successfully challenged the guidance in court, arguing that it exceeded federal authority and giving schools some cover for not complying. Similarly, when Biden-era guidance encouraged diversity and inclusion initiatives, some institutions followed state bans instead.
We will now almost certainly see this history flipped. With a more conservative approach at the federal level, we are already seeing challenges against recent executive actions from groups in states with strong protections for things like diversity, LGBTQ+ rights, and academic freedom. For example, the American Association of University Professors recently filed a lawsuit challenging the DEI executive order for exceeding Presidential authority and infringing on academic freedom and First Amendment rights. Many schools may take a wait-and-see approach, while others may initiate or join outright legal challenges.
The uncertainty surrounding these policies makes timing for institutional action a key consideration. Recent court decisions have limited executive power to reinterpret ambiguous laws broadly, so the current executive branch is operating in a landscape where they can expect even less judicial deference for novel interpretations of law than the Biden team did, particularly where some of the new directives—such as restricting transgender athletes—already conflict with existing court rulings that recognize Title IX protections for transgender students. Institutions in jurisdictions with such federal court rulings may wish to consider holding off on policy changes to avoid federal lawsuits even if state law does not raise the risk of state lawsuits.
For those considering compliance, it’s also essential to examine what federal directives actually say. For example, while a January 5 executive order prohibits transgender girls from participating in athletics, the order does not prohibit policies allowing transgender students to request access to sports programs that match their gender identity. The executive order says a violation occurs only if an educational institution requires girls or women to compete with or against or to appear unclothed before males.
Gender-identity-friendly policies can be in force without running afoul of that prohibition. In some cases, a school may have a policy but no student making use of it. Such a policy can even be implemented in cases where transgender male students seek to participate on male sports teams, but no transgender female students make use of them. Only in cases where a transgender female student is seeking to participate on a girls’ or women’s team would the policy outlined by the rule be violated. Where CDC data indicates that approximately 1 percent of any given school consists of transgender girls, who may or may not choose to participate in sports, most schools will not be at risk of violating the policy outlined in the executive order for some time, if ever.
Of course, the Department of Education’s Office for Civil Rights could push for a broader interpretation in complaints against specific educational institutions or even state athletic associations. When they do, schools are often limited in their ability to challenge OCR’s interpretation until the very end of the process. But OCR’s processes only allow the Department to strip funding from an institution once it has been given an opportunity to comply with OCR’s interpretation of the law through a letter of findings in an investigation. That means an educational institution has many opportunities to bring its policies into compliance with OCR’s interpretations without doing so proactively before a complaint is raised against it. This is what most institutions do: they eventually yield to OCR’s interpretation, but only after a particular complaint has been made against their institution based on their actions concerning a specific student.
Ultimately, the Supremacy Clause ensures that federal law prevails in cases of direct conflict with state law, but preemption applies only when a clear contradiction exists. If state law provides stronger protections without violating federal law, institutions must comply with both. However, if federal agencies prohibit conduct that state law requires, institutions cannot rely on state law as a defense.
In situations where compliance with one legal framework risks violating another, institutions must carefully weigh enforcement risks, legal challenges, and the impact on their campus communities. Federal agencies may take swift action against non-compliant institutions, but compliance with new federal interpretations could also lead to lawsuits from students, employees, or advocacy groups, especially in jurisdictions where judicial decisions clearly recognize protections for transgender students under Title IX. Schools must also consider reputational consequences and whether policy decisions align with institutional and community values.
Navigating these conflicts requires strategic decision-making. Institutions should assess legal, political, and community factors before making changes and consult legal counsel to determine the best course of action. For guidance in navigating these complexities, contact me at jackie@educationcivilrights.com.