Why Should Delaware Care?
Following an executive order from President Donald Trump to prohibit transgender student athletes from participating in girls’ sports, Delaware school districts are grappling with whether to obey it. Meanwhile, a new complaint from a state lawmaker seeks to flag that indecision to federal authorities, which threatens federal funding.
A Republican state senator and prominent Wilmington lawyer have sought the Trump administration’s help in enforcing a ban on transgender participation in girls’ sports in Delaware schools.
On Tuesday, State Sen. Bryant Richardson (R-Seaford) and attorney Thomas Neuberger filed a complaint with the U.S. Department of Justice, requesting that it terminate federal education funding in Delaware unless school districts comply with President Donald Trump’s directive issued last month.
The episode comes as recent challenges to education policies allowing transgender students to use bathrooms or play on sports teams of their preferred gender are causing Delaware public school officials to question whether they should keep in place the gender-equity rules set during the Biden presidency or shift them to align with new mandates from President Trump.
In recent weeks, several Delaware school districts have considered changing their rules around gender equity after Trump issued executive orders that roll back Biden-era policies that sought to strengthen protections for LGBTQ+ students.
Complainants alert feds
Within 24 hours of Trump’s executive order, the NCAA announced it would no longer allow transgender athletes to compete in women’s sports and would limit participation to those assigned female at birth.
Since then, states and high school sports leagues have had to grapple with the potential fallout of defying the order. Last month, Virginia’s high school sports league also banned transgender participation in women’s sports.
Maine’s defiance of the order, and a heated exchange between Maine Gov. Janet Mills and Trump at the White House, led to the federal government determining it had violated Title IX, putting federal funding at risk.
Richardson and Neuberger are longtime opponents of transgender girls competing in girls’ sports, with the state senator having twice unsuccessfully introduced a bill for a statewide ban and Neuberger seeking the same end through the Delaware Interscholastic Athletic Association, which runs high school sports.
The complaint alleges that Delaware has violated Title IX policies and Trump’s Feb. 5 executive order to “protect” opportunities for girls to participate in sports.
The defendants in the complaint include the Delaware Department of Education, State Secretary of Education Cindy Marten, the Delaware Interscholastic Athletic Association, and the Red Clay Consolidated School District’s board of education.
According to the complaint, Neuberger sent a message to Marten’s office requesting that Delaware comply with the executive order and asked for a response by March 4.
Richardson said that when Neuberger did not receive a response by the requested date, the complaint was submitted to the federal Department of Justice, and they hoped it would “shock them and convince them that they need to protect women and females in sports.”
Although much of the districts’ funding comes from the state government and local taxes, Delaware’s schools receive millions annually from the federal government for Title I schools, which have high numbers of children from low-income families. The complaint also suggests potential loss of funding for the Individuals with Disabilities Education Act.
While other Republican lawmakers have supported Richardson’s previous bills, not all agree with the complaint’s request to terminate Delaware’s access to federal education funds.
State Sen. Eric Buckson (R-Dover), a former gym teacher and high school wrestling coach, said that he feels it’s important for the federal government to have the authority to cut the funding, but would not support an immediate action to do so.
“I would not want to see the federal government immediately react,” Buckson said. “I would look for the federal government to send a clear message… that the states have to recognize that if they’re going to accept federal monies, that the states are expected to follow federal guidelines and rules.”
However, the federal Department of Education’s stance has remained firm on potential consequences.
“As President Trump made clear, any entity that receives taxpayer dollars and violates Title IX faces losing federal funding,” a U.S. Department of Education spokesperson wrote in a statement to Spotlight Delaware on Monday.
Districts grapple with issue
Any school district that receives federal dollars and violates Title IX is at risk of funding loss, but that method of enforcement hasn’t been broadly used, said Dwayne Bensing, the legal director of Delaware’s American Civil Liberties Union (ACLU).
Many districts were required to change their policies this past summer to comply with then-President Joe Biden’s Title IX regulations that went into effect on Aug. 1, 2024.
In January, a federal judge in Kentucky found the Biden administration overstepped presidential authority and struck down the Title IX overhaul. Shortly after, the federal Department of Education sent a “Dear Colleague” note to K-12 and higher education institutions, stating that 2020 Title IX rules would be used instead.
Richardson said that if the Department of Justice’s investigation found that there was a Title IX violation, then the Delaware Department of Education would be responsible for the loss of funds rather than himself or Neuberger.
“They’re the ones that have the opportunity to either adhere to the executive order or to be stubborn and say that it’s more important that men compete in female sports than it is to us to receive that federal funding,” Richardson said.
Eight of Delaware’s boards of education voted unanimously in February to advance the first reading of revisions to their Title IX policies, which would revert to their pre-2024 language, citing guidance from the federal Department of Education.
Those districts included Colonial, Indian River, Woodbridge, Smyrna, Caesar Rodney, Milford, Seaford, and Cape Henlopen.
Although the federal court case struck down Biden’s Title IX overhaul nationwide, there are questions as to how closely Delaware is required to follow the decision, as it was a district court ruling in the Eastern District of Kentucky.
Bensing said that the decision is currently just a legal proposition and does not have the same implications that a Supreme Court decision would have.
“There’s no reason for a school district in Delaware to jump to any conclusions based on an Eastern District Court of Kentucky opinion,” he said.
Trump’s executive order also aims to protect areas like all-female locker rooms, but a Boyertown, Pa., court case affirmed the right to allow transgender students to use restrooms and locker rooms consistent with their gender.
That case was decided in the Third Circuit Court of Appeals, which includes Delaware, and would therefore provide some guidance for how federal courts may rule on policies in the First State.
Advocates fear reprisals
Bensing called districts’ decisions to consider reverting their policies a “voluntary surrender of protections.” He also cautioned school districts against “knee jerk reactions” to Title IX restrictions or laws that aren’t coming from an appropriate court within Delaware.
But the threat of federal funding being revoked is something that is on the minds of many school district officials. Advocates like Andrea Rashbaum, who is co-founder of Parents of Trans and Gender Expansive Kids (PTK) Delaware, also believe there is a fear of punishment against those who support transgender youth.
Some school districts are looking at ways to address student protections while preparing for the potential loss of federal education funding.
During its February meeting, Christina School District Board of Education members discussed finding alternative sources of funding to cover the costs of anything currently paid for with federal dollars in case that money was taken away.
Christina Board Member Y.F. Lou said the board’s policy committee is looking at what 2024 changes will be missing from the latest Title IX policy. Afterward, they’ll determine whether another policy maintaining the 2024 protective language needs to be introduced.
“We’re taking all of these [executive orders] very seriously, but we also want to make sure that our top priorities are, as a school district, to protect our students, ensure our students and staff are safe, reflect the values of our community, and also maintain a mission of student outcome,” he said.