How President Trump’s Executive Orders Complicate Constitutional Precedent

On his ninth day in office, President Trump and executive order entitled Ending Radical Indoctrination in K-12 Schooling [1]. On the surface, most anyone would agree with the purpose, but taking a deeper look presents a levy of challenges to American Constitutional rights. Trump’s order came ahead of declarations that K-12 schools and colleges had until February 28, 2025 to root out diversity, equity, and inclusion on their campuses. The President claims DEI programs and curricula “teach students that certain racial groups bear unique moral burdens that others do not,” and that they “deny students the ability to participate fully in the life of a school” [2]. Trump’s order and the legal battles that surround it will force the country to re-examine its Constitution and put the First and Fourteenth Amendment, as they stand, at risk.

Trump’s Executive Order threatens to defy the Right to Receive Information, a right derived from the First Amendment. The right to receive information was established in the 1982 Supreme Court decision on Board of Education, Island Tree Union Free School District No. 26 v. Pico by Pico [3]. In the case, the school district banned books that they deemed “anti-American, anti-Christian, anti-Semitic, and just plain filthy,” despite widespread objections from students and parents [4]. The courts found that out of all sectors of public education, libraries had particularly strong protection under the First Amendment and that banning books from libraries because of ideological opposition outrightly violated constitutional muster. Trump’s Order to remove DEI education from public K-12 institutions simply does not pass the precedent set in Pico by Pico. In Section 1 of the Executive Order, the Trump administration writes that schools have indoctrinated students with “anti-American ideologies,” and have thus posed a threat to personal identity and family unity [5]. Per Pico, anti-American ideology is not sufficient reason to illegalize certain topics from being taught in schools. Still, Trump’s Executive Order possesses strengths that allow it to be implemented constitutionally.

Trump’s order benefits from its opacity. The Order’s action plan includes:

(i) 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 [6].

The order coins the term “discriminatory equity ideology,” which includes ideas and topics like “white privilege” and “unconscious bias,” and finds that the dispersion of those terms in schools violates the Civil Rights Act [7]. According to Pico, Trump cannot constitutionally ban the sharing of an ideology in public school libraries, but public school teachers sharing information in class have different limitations.

Because Trump’s order does not specify the inclusion of this indoctrination as part of established curricula. With the executive order’s ambiguous parameters for where race, gender, and sexuality can be discussed in schools, Trump’s administration can manipulate points of argument in litigation. Without knowing whether the order specifically bans teachers from discussing these topics, their inclusion in curriculums, or their presence in school library books, litigators challenging the order in court face lack clarity on what exactly they are challenging. In court Trump’s administration can generate specificity. For example, saying the order particularly aims to ban teachers from discussing race and sexuality may pass constitutional muster, while the broader package may not.

If Trump’s order is implemented, teachers speaking about white privilege, racism, gender identity, and more could be penalized. In the 1968 case Pickering v. Board of Education, the Supreme Court found that teachers possessed the same First Amendment rights as students [8]. Essentially, teachers had a right to contribute to public debate as long as it did not prove disruptive to the learning environment [9]. Over a decade later in 1979, the Court found in Givhan v. Western Line Consolidated School District (1979) that teachers had the right to speak outwardly on issues of public concern [10]. However, in Garcetti vs. Ceballos (2006), the courts found that public employees do not retain Freedom of Speech as part of their official job duties [11]. Garcetti’s finding has been used to penalize teachers’ speech in the classroom, particularly when courts found that the speech was not found in or related to curricula [12].

Under the status quo, most if not all of teachers’ discussion of race and gender is protected, but Trump’s vagueness can benefit from the specific boundaries for free speech provided to teachers. Based on the ruling in Pickering, teaching about sexual orientation, gender identity, and even race may not be protected by the First Amendment. This would allow Trump’s order to pass constitutional muster as it claims, “these practices not only erode critical thinking but also sow division, confusion, and distrust,” and thus arguably disrupt and undermine the learning environment for students [13]. Trump’s executive order operates under the assumption that racism, racial biases, and privilege no longer exists in today’s America. Thus, teachers would lose the right to freely discuss race and the history of racism on the grounds of it no longer being an issue of public concern, which protected the teacher’s free speech in Givhan.

As for Garcetti, any discussion of race or gender identity, including personal experiences, by a teacher could feasibly be penalized as they may diverge from school curriculum. All in all, Trump’s Executive Order could find a way to maneuver its way into passing constitutional muster. By claiming race, gender, and sexuality discussion in school serves as a disruption rather than an educational asset, the rights of educators to teach these topics could disappear. This poses the question of which right is more important: an educator’s right to teach or a student’s right to receive information. The order’s legality generates the potential for further limitations to the First Amendment on either end.

While this executive order could find a way towards implementation under the First Amendment, its implications under the 14th Amendment may keep it from reaching fruition. Trump’s executive order claims that teaching students that the United States is “fundamentally discriminatory” [14]. The administration goes on to argue that teaching topics that make individuals feel “anguish” over actions of the past is a violation of Title VI of the Civil Right Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal assistance [15,16]. However, discussions of race, gender identity, and sexual orientation today and through history are necessary to uphold the Civil Rights Act of 1964 and the 14th amendment which ensures “equal protection under the laws” [17]. Equal protection under the law must extend to equal coverage and presence in schools. Trump’s “ideologically anti-American” topics can and have easily encompassed periods of racial discrimination, like the Jim Crow era in which the American government institutionalized and legalized racial discrimination [18,19]. Meanwhile, the order embraces racially limited “patriotic education” like one-sided perspectives of the Revolutionary War as appropriate topics for K-12 schools [20]. Trump’s order generates discrimination in the kind of history that is told in schools. Further, itstrips students and teachers of color of their equal right to share their experiences for fear that it generates guilt or “anguish” amongst their peers.

In probiting school officials from using transgender students' preferred names and pronouns, Trump’s order undermines students’ right to expression and their ability to live authentically without government interference. Even more, it exhibits discriminatory behavior in violation of Title VI of the Civil Rights Act as there are no restrictions for cisgender students to be called by their preferred name, whether it be a nickname or middle name. Despite itself, Trump’s executive order faces roadblocks when faced with the legislation it cites, the Civil Rights Act of 1964, and when faced with the 14th Amendment. Thus its implementation jeopardizes the stability of both as protective laws for the American people.

“Ending Radical Indoctrination in K–12 Schooling” will likely face a long road of litigation before it is struck down or implemented. Despite initial assumptions, Trump’s order could pass muster under the First Amendment, but its apparent defiance of the Civil Rights Act of 1964 and of the 14th Amendment worsen its chances for effective long-term implementation. Either way, Trump’s Executive Order exposes the shaky ground on which education stands above the First and Fourteenth Amendment. It raises new questions about the limitations of the First Amendment in schools, the parameters of what classifies discriminatory language and ideology, and where, how, if race and gender can continue to be discussed in schools — and most impendingly — the future of two essential constitutional rights.

Bibliography

[1] “Ending Radical Indoctrination in K-12 Schooling.” 2025. The White House. https://www.whitehouse.gov/presidential-actions/2025/01/ending-radical-indoctrination-in-k-12-schooling/

[2] “Dear College.” February 14, 2025. The Acting Assistant Secretary, United States Department of Education and The Office for Civil Rights. https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf

[3] Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)

[4] Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982)

[5] “Ending Radical Indoctrination in K-12 Schooling.” 2025. The White House. https://www.whitehouse.gov/presidential-actions/2025/01/ending-radical-indoctrination-in-k-12-schooling/

[6] Ibid.

[7] Ibid.

[8] Pickering v. Board of Education, 391 U.S. 563 (1968)

[9] Pickering v. Board of Education, 391 U.S. 563 (1968)

[10] Givhan v. Western Line Cons. Sch. Dist., 439 U.S. 410 (1979)

[11] Garcetti v. Ceballos | 547 U.S. 410 (2006)

[12] Garcetti v. Ceballos | 547 U.S. 410 (2006)

[13] “Ending Radical Indoctrination in K-12 Schooling.” 2025. The White House. https://www.whitehouse.gov/presidential-actions/2025/01/ending-radical-indoctrination-in-k-12-schooling/

[14] Ibid.

[15] Ibid.

[16] “Civil Rights Division | Title VI of the Civil Rights Act of 1964.” 2023. https://www.justice.gov/crt/fcs/TitleVI

[17] “14th Amendment to the U.S. Constitution: Civil Rights (1868).” 2021. National Archives. https://www.archives.gov/milestone-documents/14th-amendment

[18] “Ending Radical Indoctrination in K-12 Schooling.” 2025. The White House. https://www.whitehouse.gov/presidential-actions/2025/01/ending-radical-indoctrination-in-k-12-schooling/

[19] “Jim Crow Law | History, Facts, & Examples | Britannica.” 2025. https://www.britannica.com/event/Jim-Crow-law

[20] “Ending Radical Indoctrination in K-12 Schooling.” 2025. The White House. https://www.whitehouse.gov/presidential-actions/2025/01/ending-radical-indoctrination-in-k-12-schooling/