Wisconsin Right Now

The U.S. Department of Justice’s Civil Rights Division announced it is investigating California for violating Title IX by allowing males to participate in female student sports.

“Title IX exists to protect women and girls in education,” said Harmeet K. Dhillon, assistant attorney general for Civil Rights. “It is perverse to allow males to compete against girls, invade their private spaces, and take their trophies.”

In February, President Donald Trump signed an executive order banning males from participating in female student sports, and he has threatened to block California's federal funding for continuing to defy his order. With California facing deficits in the tens of billions of dollars each year, it's unclear how the state would offset any losses or pauses in federal funding.

Notably, California Gov. Gavin Newsom hosted conservative pundit Charlie Kirk on his podcast and told Kirk that he thinks it’s “deeply unfair” that boys are participating in girls’ sports.

When asked later at a press conference what this means for state policy, Newsom demurred, painting the matter as a marginal, non-issue not worth his time.

“You're talking about a very small number of people, a very small number of athletes, and my responsibility is to address the pressing issues of our time,” said Newsom.

The California Interscholastic Federation, which governs student sports in California, has since responded to Trump’s threat by announcing a new pilot program to allow girls who otherwise would have qualified for sports finals had the finalist spots in girls’ sports not been taken by transgender-identifying boys to participate in said finals.

Title IX was signed into law by President Richard Nixon in 1972 to ensure that schools could not discriminate against female students. It requires they be provided with equal opportunities to engage in athletics, extracurriculars and education.

DOJ’s letter of interest says it is investigating whether California’s Assembly Bill 1266, which requires transgender-identifying students to be allowed to participate in sports consistent with their gender identities, violates Title IX.

“As a result of CIF’s policy, California’s top-ranked girls’ triple jumper, and second-ranked girls’ long-jumper, is a boy,” wrote the DOJ. “As recently as May 17, this male athlete was allowed to take winning titles that rightfully belong to female athletes in both events.”

“This male athlete will now be allowed to compete against those female athletes again for a state title in long, triple, and high jump,” continued the DOJ. “Other high school female athletes have alleged that they were likewise robbed of podium positions and spots on their teams after they were forced to compete against males.”

Should the DOJ find California is in violation of Title IX, it says it will “take appropriate action to eliminate that discrimination, including seeking injunctive relief.”

Through more than 140 executive orders, President Donald Trump in his first 100-plus days in office has used his signing pen like a battering ram to undo sometimes decades-old policies and practices that have shaped the federal government, including in public and higher education.

On day one, the administration banned diversity, equity and inclusion programs from federal agencies and institutions receiving federal funding, targeting schools like Harvard University that refuse to comply with his policies. But Trump also is attempting to move schools away from such practices by requiring them to hire for “viewpoint” or “intellectual” diversity – a move that has been met with varying degrees of skepticism and support.

The administration included such terms in both its list of demands to Harvard and in an executive order on reforming accreditation in higher education.

Among the 10 demands outlined in a letter from the administration to Harvard in April, it directed the university to facilitate an audit of the “student body, faculty, staff and leadership” for “viewpoint diversity” and to submit that audit to the federal government.

“Each department, field, or teaching unit must be individually viewpoint diverse,” the letter reads.

The university is to hire or admit for viewpoint diversity until a “critical mass” is reached in each arena.

Within a handful of recent executive orders on education was one meant to hold accreditors accountable for “unlawful discrimination in accreditation-related activity under the guise of ‘diversity, equity, and inclusion’ initiatives.”

“A group of higher education accreditors are the gatekeepers that decide which colleges and universities American students can spend the more than $100 billion in Federal student loans and Pell Grants dispersed each year,” the order reads.

The order accuses accreditors of prioritizing “discriminatory ideology” in accreditation standards over strong graduation rates, return on investment and other important criteria. As an antidote, the order commissions the secretary of education with devising new accreditation standards, including one that requires institutions to “prioritize intellectual diversity among faculty in order to advance academic freedom, intellectual inquiry, and student learning.”

Heather Mac Donald, a scholar at The Manhattan Institute who’s written on a number of topics over the years, including higher education, is supportive of the goal but thinks the means are “problematic.” Mac Donald authored "The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture" in 2018.

“I agree with the substantive critique entirely. I think universities are the enemy of Western civilization,” Mac Donald told The Center Square. “They are perpetuating an ideology of hatred and of ignorance. They are betraying their fundamental obligation, which is the pursuit of truth, by embracing a one-sided, ignorant understanding of the West’s contributions and its relative position regarding other civilizations.”

In addition, Mac Donald believes universities have discriminated against certain racial groups for years.

“The universities have been blatantly discriminating against whites, white males, Asians, Asian males. They’ve introduced grotesque double standards for admissions and hiring,” she said.

Despite her numerous and serious critiques of contemporary American universities, she thinks a mandate from the federal government for intellectual diversity represents bureaucratic overreach. The administration’s demands to Harvard were provided mostly on the basis that the university has violated discrimination laws through expressions of and responses to anti-semitism on campus, she said.

“We are a government of limited powers. It’s true that the government does oversee civil rights violations under Title VI, but it’s a stretch to say that what’s going on with the left-wing bias in academia constitutes a civil rights violation that the Trump administration has the authority to correct by withholding funds,” she said.

“As necessary as it is to make a course correction, I don’t think that we should be doing so in a way that will justify further left-wing incursions,” she added.

The Foundation for Individual Rights and Expression has also been critical of how the administration has gone after Harvard, saying it has flouted the lawful procedure for resolving such issues, despite also being critical of Harvard at times. But Tyler Coward, the foundation’s lead counsel on government affairs, isn’t as quick to oppose the administration’s mandate in the executive order on accreditation.

“We’re still thinking of what it looks like in practice for accreditors to have some sort of mandate for institutions to show ideological diversity. We at FIRE think that ideological diversity is a good thing. In its best form, it helps foster a true learning environment, a true marketplace of ideas that we expect our universities to be,” Coward told The Center Square.

While the executive order may appear heavy-handed, Coward said the government’s relationship with accrediting institutions has already occupied a kind of gray space for a long time.

“The government is the one empowering these accreditors in the first place. The reason these accreditors exist is because the government licenses them to exist. So it’s this weird thing where the government is involved sort of but not really, and so what is the appropriate response from the government if things aren’t going well. These are age-old tensions,” Coward said.

Scott Yenor, a scholar with California-based think tank The Claremont Institute, thinks, like Mac Donald, that American universities have strayed far from their original purpose and need correcting.

“This is a classical liberal solution with kind of non-classical liberal means,” Yenor told The Center Square.

Yenor agrees that universities need to be a marketplace of ideas but believes most no longer are, and he thinks the administration’s attempt at requiring it might be a step in the right direction.

“I don’t know that there’s any other way of actually achieving intellectual diversity besides a demand that you achieve it,” Yenor said. “The government has been doing that when it comes to racial diversity, and always with the justification that increasing racial diversity will actually increase the intellectual diversity on campus.”

“What the Trump administration is doing is what has been done for a long time already, which is making explicit demands for ideological diversity but more direct than the indirect way it’s been done on racial stuff.”

In a case that could have major implications for the American public school system, the U.S. Supreme Court is considering whether religious charter schools, which are taxpayer-funded, are constitutional.

The St. Isidore of Seville Catholic Virtual School v. Drummond case involves a 2023 decision by the Oklahoma Statewide Virtual Charter School Board to allow St. Isidore to join the dozens of charter schools in the state.

Oklahoma Attorney General Gentner Drummond sued the charter school board, arguing that allowing St. Isidore to join the public charter school program amounts to state-sponsoring of religion.

The Oklahoma Supreme Court ruled in Drummond’s favor, but St. Isidore is arguing before the Supreme Court that contracting with the state to provide free and public education options as a privately run entity does not mean its religious activities constitute “state actions.”

Lori Windham from Becket law firm, which filed a friend-of-the-court brief in support of St. Isidore, told The Center Square that a major question in the case is whether charter schools are closer to traditional public schools or instead function as private schools that are eligible for public funds like scholarships.

“There are already a lot of programs that taxpayers fund for things like federal student loans or federal scholarships that go to religious schools and non-religious schools alike,” Windham said. “Funds to help disabled students, funds to help schools have better security measures to prevent school shootings and hate crime – those go to religious schools and non-religious schools alike.”

“So in that way, this charter school isn't so different from lots of other programs that are out there where many different people can come in and ask to be part of that program, regardless of whether they're religious or not,” she added.

Though identifying as a Catholic school, St. Isidore accepts nonreligious students and does not require a statement of faith. Accordingly, the school also argues that an exclusion of St. Isidore from the state’s charter school program, simply because it is religious, violates the First Amendment’s free exercise clause.

“When you have a generally available program, you can't kick out religious people or religious groups just for being religious. You have to allow them to compete on the same basis as everybody else,” Windham told The Center Square. “And that's the main argument that the charter school is making here, that they're just trying to compete for that charter on the same basis as any other private group who wants to start running a school as part of that program.”

If precedent is any indication, St. Isidore has a high chance of winning the case. In 2022, the Supreme Court overturned the state of Maine’s ban on state tuition assistance to students attending religious schools.

But if SCOTUS does rule in Drummond’s favor, other areas where religious students and schools are currently receiving state funds – such as assistance for students with disabilities – could be jeopardized.