Interview conducted by Rafa Estolano-Sridharan and Trisha Chakraborty
Staff Writers

This interview has been edited for length and clarity.

Tiger: Could you provide a brief overview of how executive orders work and what legal limitations they face? Especially when state policies conflict with federal directives.

Levitt: The first thing to know about an executive order is that it is only an instruction to the federal government–that’s it. [It] might confuse some of your readers–in part, because [President Trump] in particular frames executive orders very differently, often in ways that purport to affect lots of other entities. And they do affect entities downstream of the federal government, [because] the federal government gives out lots of grants and it enforces lots of federal laws.

Sometimes executive orders instruct the federal government to give out those grants or enforce those laws in different ways. But ultimately, an executive order can’t change what the law is. It doesn’t have that authority, that’s not what it’s for. It’s like a memo from the president to entities in his executive branch. 

Tiger: Are they only binding in that they could affect funding for something? 

Levitt: Correct. The only people that they bind are other federal government officers or employees directly. It gets a little more complicated when we start talking about what those federal entities do. The reason that some of these executive orders have a pretty broad impact is that they affect–or they might affect–the way that federal entities distribute funding. 

 As a technical matter, the only people who have to pay attention to executive orders directly, are federal government employees. But because federal government employees affect a lot of stuff, a lot of other people are paying attention.

I also want to emphasize: presidential executive orders can’t change what a law says and they can’t change what the Constitution says. They don’t have that power.

Executive orders can help calibrate how federal entities use their discretion or construe ambiguous provisions. But [when] an executive order flatly says something different than a statute or a constitutional provision, it has no legal effect.

An example of this is the executive order on birthright citizenship, which purports to say who the federal government is going to give citizenship papers to.

But it turns out we have a provision of the Constitution that says who gets to be a citizen, and an executive order can’t change that. This is why a court has already–just three days after [the executive order] was issued–reached out and said, “Yeah, you can’t do that. That’s not what the Constitution says.” The executive order has no validity [when] it [contradicts the Constitution’s established definition of who gets to become a citizen.]

Tiger: We are focusing on this one executive order called Ending Radical Indoctrination in K-12 Schooling. It’s supposed to discourage the teaching of concepts like unconscious bias and racism. How would that actually affect classroom instruction or what is allowed to be discussed in a classroom?

Levitt: It’s a great question, and I think the answer is likely to end up being not that much. Although, there’s going to be a little bit of confusion as the federal government, school districts, and various other entities sort out exactly what legal effect [this executive order] can have. 

Tiger: Does the Department of Education have to follow suit?

Levitt: There are some things that the Department of Education can do, [like] give out grants. Some of those grants are conditioned in certain ways – they’re discretionary. 

There are other sources of federal funding that aren’t discretionary and are based on formulas, the number of students, poverty level of students, or the poverty level of the communities in which they are in.  

There are real strong limits on the Department of Education’s ability to interfere with curricular choices. Congress doesn’t have any funding of its own, [because] Congress authorizes the Department of Education and all of the funding it gives.

Congress hasn’t wanted the Department of Education to make curricular choices or to force school districts to impose their own curriculum. Most education is pretty localized. 

It’s not like the Department of Education decides what’s going to be in the curriculum of any school in the country. When an executive order purports to tell schools what to teach or not to teach, it’s not generally going to end up as part of a legal requirement that schools listen to. Some schools will follow that lead, and some schools will not follow that lead.

Tiger: How might this impact schools in the Los Angeles County area?

Levitt: I would expect that most schools in Los Angeles would say, “Thank you for the suggestions. We’ll take them under advisement.” Then, not do all that much to actually carry them through, because many of the schools in Los Angeles have very different [curricular choices]. That’s a right the schools have.

The executive orders that you mentioned and a few of the others point to particular ideas about what this administration thinks of when it thinks about discrimination on the basis of race, sex, or national origin.

Those ideas may or may not be the same as what Los Angeles thinks is included in [the definition of] discriminating on the basis of race, sex, or national origin. I’ll say there are a lot of school districts in the country that might disagree with what this administration thinks are included in discrimination on the basis of race, sex, or national origin. So, I would expect a lot of contestation, including in the courts, if the Trump administration tries to enforce its vision of what discrimination means.

I might expect those fights to come pretty quickly. But, Los Angeles is hardly going to be alone in likely contesting what it thinks of as discrimination on the basis of race, sex, and national origin. Candidly, that’s something that a lot of school districts are currently thinking about – how to stay out of trouble with the arms of the federal government that enforce anti-discrimination statutes, while still both teaching and caring for kids in the way that they, parents, and students want.

Tiger: Another one of the Trump administration’s recent executive orders, Keeping Men Out of Women’s Sports, is especially relevant for students our age. How does this federal directive conflict with California’s existing protections for transgender youth, particularly given that the California Interscholastic Federation (CIF) has stated they will continue allowing transgender athletes to compete?

Levitt: This one is going to be a big fight in the courts and it’s going to be coming pretty soon. The administration has taken a position on what it means to be a member of one sex or one gender, and that position is directly contrary to federal employment law. I’ll get to why this matters for women in sports or for individuals with non-binary gender identities in sports. 

Title VII is the federal employment non-discrimination mandate. It talks about the fact that you can’t discriminate–that nobody’s allowed to discriminate if they’re an employer–on the basis of sex. For several years, advocates maintained that that included a mandate to not discriminate against somebody on the basis of their gender identity. That is, if you can’t discriminate against men or against women, then you also can’t discriminate based on a stereotype of what it means to be a man or a woman. That includes prohibiting discrimination against somebody based on whether they happen to have been categorized as a different sex or gender on their birth certificate. 

Tiger: What did the Supreme Court say about sex discrimination?

A couple of years ago, in a case called Bostock v. Clayton County, the Supreme Court said, “Yes, we agree, actually. It is unlawful for employers to discriminate against employees based on their sex.” That means [they ruled] that it’s unlawful to discriminate against employees based on their gender identity and sexual orientation. People were protected no matter what sex or gender they were, no matter what their gender identity was, and no matter whom they chose to love or partner with.

It’s significant in that the decision was written by Justice Gorsuch, who is a very conservative judge. [The decision] followed a very conservative line of cases. [The legal argument was that] of course you discriminate against somebody based on their sex when you discriminate against somebody based on a stereotype about what their sex involves.

[In other words], it’s impossible to think about forcing someone to conform to your impression of what a man is or a woman is without discriminating against them based on their sex. For the Supreme Court, that was super easy in the employment context.

Tiger: How does Title VII’s legal precedent apply to this recent executive order? 

Levitt: Title IX is a federal civil rights statute that uses very much the same language as Title VII about prohibiting discrimination [except it’s about discrimination] on the basis of sex in sports.

Actually it can be for any educational program, but it’s really impactful in high school and college sports. Part of the reason that California and CIF have said that they’re going to protect transgender kids’ ability to play sports is that they interpret these federal protections against discrimination on the basis of sex to include sexual orientation and gender identity, just like the Supreme Court has in the employment context. 

The Trump administration and this executive order take a very different perspective that runs directly into the Supreme Court’s [prior] ruling on employment. The Supreme Court hasn’t [yet] directly ruled on this language in the sports context, or in the context of discrimination based on sex. 

The Supreme Court [also] hasn’t yet directly ruled on how federal civil rights language speaks to gender identity. I think everybody expects that they’re going to be asked to weigh in on this controversy.

Based on what they’ve said before, using the exact same language in a slightly different statute (Title VII), I think a lot of people expect that the executive order is going to be unlawful as applied discrimination on the basis of gender identity in sports competitions. That’s a fight that’s coming. There is no question. It sure seems like the president’s executive order directs the Department of Education to take a position that’s directly contrary to what California has said applies for California schools. 

Tiger: Until the courts actually do make a ruling, is the Department of Education allowed to withhold any federal funding based on something that hasn’t yet been decided?

Levitt: We might see them try, and that’s one of the contexts in which the issue would come to the courts. [The plaintiff] might say, “We’re going to bring this issue to the courts without funding in jeopardy. We’re going to sue to enforce [our] vision of what non-discrimination means.” 

To be abundantly clear, I think [the Trump administration] is wrong. I think they’re wrong on the law. I think they’re wrong based on what the Supreme Court says. I think they’re wrong based on consideration of the moral issues around gender identity and around transgender people.

I’ve got direct experience in this, in part because I helped litigate cases around the Title VII federal law, based specifically on protections for transgender individuals when I served with the Department of Justice and Civil Rights Division. This one’s personal for me. Because the language is so similar for employment and education, most of the language that we apply in the employment context, I think, also applies in the education context. I’ve got an opinion on this one. 

One of the ways that the fight might come is the Department of Education attempting to bring a lawsuit in the courts, trying to keep a California school from “discriminating”. Another way that this issue could come to the courts is that the Department of Education might seek to withhold federal funding, whereupon a bunch of schools are going to very quickly sue to stop them. That’s part of why I think this is coming to the courts very quickly. 

Tiger: Is it possible for there to be different interpretations of Title IX and Title VII, as you mentioned?

Levitt: It is possible. The same language doesn’t automatically apply from one statute to another. Title IX and Title VII are parts of two different statutes, but they’re based on each other. The language is super similar because they’re based on each other.

It would be, if possible, weird for them to be interpreted differently when the language is exactly the same. If you look at the records about what Congress meant to do in both statutes, the records are pretty clear that Congress used the same language because they meant it to do pretty much the same thing. It’s possible, but it would be strange.

Tiger: Given that the Supreme Court is so conservative right now, would it be completely out of the blue if they did interpret Title IX differently than Title VII? 

Levitt: It would not be completely out of the blue, but part of the reason that I stressed that Justice Gorsuch wrote the opinion in Bostock v. Clayton County (based on a very conservative line of cases), is because this current very conservative court is almost essentially the same court that ruled in Bostock on the employment issue. It’s theoretically possible that this current very conservative court could decide the statutes differently, but I don’t think that in this instance it’s either wise or warranted to assume that just because the court is conservative, that it’s going to come out a particular way. 

On this issue, the very conservative court read the words of the statute that says you can’t discriminate on the basis of sex and said, “If you think about any claim brought by a transgender individual, it’s not possible to decide that claim without it being on the basis of sex.” 

It’s about what we consider notions of sex, and that’s exactly what the statute was meant to do. Even with this very conservative court, even knowing that gender identity is a really hot-button political issue right now, and even knowing that it’s been the subject of an extremely prominent series of executive order by a president who appointed three of the court’s justices, I don’t at all think it’s a foregone conclusion that the court is going to rule differently now than it ruled just a few years ago on Title VII, which had basically the same language.