President Joe Biden signed more than a dozen executive orders shortly after his inauguration Wednesday and additional orders Thursday, including a handful with implications for K-12.
Education organizations including the National Education Association and American Federation of Teachers have welcomed Biden's directives.
While executive orders can sometimes have the effect of federal law, they can also be overturned by laws passed in Congress, which are then subject to presidential veto.
With a Democratic majority in the Senate and House, it is possible for lawmakers to push legislation mirroring Biden's executive orders through Congress, said Noelle Ellerson Ng, the associate executive director of policy and advocacy for AASA, The School Superintendents Association. However, success of that legislation requires "a collaborative and compromise-driven (Senate Minority Leader) Mitch McConnell," Ellerson Ng added.
Federal response to COVID-19 in schools
Among Biden's directives were measures to coordinate a federal response to COVID-19, which includes ensuring education continuity, and reopening K-12 schools. The orders support the collection and sharing of data to inform reopening decisions, formation of guidance specific to schools around virus mitigation measures, and development of contact tracing for reopening.
On Thursday, the Biden administration also released a 23-page strategy document for pandemic preparedness and response, which stated the federal government will:
- Support screening and testing programs in schools.
- Provide testing protocols for schools and support timely testing results.
- Direct the U.S. Centers for Disease Control and Prevention and Department of Education to provide guidance with metrics for measuring and monitoring the spread of COVID-19 in schools and help them reopen.
- Direct the Federal Emergency Management Agency to reimburse schools for emergency supplies like personal protective equipment.
- Work to reopen a majority of K-8 schools within 100 days.
A coordinated federal response to help reopen schools with the support of COVID-19 testing and vaccinations has been long-awaited by administrators and instructors, who are following varying guidance from local and state leaders. Biden's orders, along with the strategy document, address many of educators' concerns, including a lack of timely and widespread novel coronavirus testing, a lack of guidance on reopening and virus metrics, and declining funds for things like PPE required to reopen schools.
DACA protections for students and educators
Biden also signed an executive order to protect the Deferred Action for Childhood Arrivals program, which the Trump administration tried to roll back in an attempt that was ultimately rejected by the U.S. Supreme Court. The roll back of DACA, an Obama-era initiative, would have impacted thousands of educators, students and their families.
The new directive covers at least 15,000 educators, students and their families, according to the NEA.
The order to keep it in place is welcomed by a handful of national education organizations, including the NEA and AFT, which sent a letter to then President-elect Biden in December supporting the cause.
However, protecting the program through an executive order means future administrations can easily overturn the decision, leaving the door open for a future challenge to the program, wrote Michael McConnell, a professor at Stanford Law School.
For now, the executive order is "a good read of the room," said Ellerson Ng, adding Biden recognizes that getting immigration reform passed in Congress "will be a huge lift."
Title IX protections for LGBT students and staff
Another order signed by Biden protects LGBT rights under Title IX, the law protecting individuals against sex discrimination in federally funded schools and programs.
"Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports," the new directive states.
The order builds on a recent Supreme Court case, Bostock v. Clayton County, and upends the Trump Education Department's interpretation of that case. Previously, the interpretation under former Secretary of Education Betsy DeVos supported the exclusion of trans students from school areas — like bathrooms and locker rooms, as well as involvement in sports — that aligned with their gender identities.
The new directive to protect the rights of LGBT students and workers is in line with what policy experts anticipated under the Biden administration, which was a reinstatement of federal guidance and Dear Colleague letters that were overturned by the Trump administration. It also asks the Department of Education, as one of several federal agencies, to rescind, revise or issue new guidance, if needed, to protect LGBT rights.
But with multiple court cases pending on the rights of transgender students, it is possible this question will be addressed by the Supreme Court. Considering the right-leaning bench, a future decision could counter the implications of this executive order and trump any interpretation by the Department of Education. However, Bostock's inclusion of LGBT discrimination as a form of sex discrimination could still impact how Title IX is interpreted.