President Trump was welcoming governors to the White House in February when he sought out Maine Gov. Janet Mills, demanding to know whether she would comply with his ban on transgender athletes in women’s sports.
“I’m complying with state and federal laws,” Mills replied.
Trump responded, “We are the federal law” He added: “You’d better comply. … Otherwise, you’re not getting any federal funding.”
Mills’ parting shot to Trump: “We’ll see you in court.”
Trump made good on his threat and began the process this month to strip Maine of federal education dollars because that state allows transgender students to compete on women’s teams. The dispute immediately landed in court — a fight that represents a high-stakes case study for California, which also has statutes permitting transgender athletes in women’s sports.
California education code “ensures equal rights and opportunities for every student” and “prohibits discrimination on the basis of gender identity, gender expression and sexual orientation.“
Maine is defending the primacy of local control as well as its state law — which is grounded in pro-LGBTQ+ policy. Trump, meanwhile, is opposing Maine on conservative ideological grounds using federal funding as the cudgel to prevail. Some see Maine as a precursor to what California can expect: a Trump administration attempt to halt federal education funding.
“It seems likely that the Trump administration will proceed with lawsuits against California and other states that have policies similar to those that the administration is challenging in Maine,” said Jacob Huebert, president of Liberty Justice Center, a law firm that broadly supports Trump’s agenda. “The administration’s demands are appropriate, so California should comply with them.”
Unlike the governor of Maine, California Gov. Gavin Newsom recently said it was “deeply unfair” for trans students to compete in women’s sports, but he has not acted to change California law, which he previously has supported.
Read more: Newsom says sharing his beliefs on trans athletes wasn’t ‘some grand design’
Trump’s U.S. Department of Education has opened an investigation into the California Interscholastic Federation, which oversees sports at more than 1,500 high schools, explicitly threatening California funding, but has not yet moved to cut off those dollars.
California officials declined to comment about the ongoing investigation.
Although federal funding for California education is challenging to calculate and arrives through multiple channels, some tallies put the figure at $16.3 billion per year — including money for school meals, students with disabilities and early education Head Start programs. The Los Angeles Unified School District has estimated that it receives about $1.26 billion a year.
And, in the current moment, there are myriad ways for California to lose these dollars, based on Trump administration directives.
One example is the California law that prohibits schools from automatically notifying families about student gender-identity issues and shields teachers from retaliation for supporting transgender student rights.
Federal officials contend the California law illegally violates the right of parents to receive school records related to their children and have launched an investigation into the California Department of Education for enforcing it. Trump favors requiring schools to notify parents about any matters involving gender identity and their child. The California law must be nullified, the administration says.
Read more: Trump targets California ban on ‘forced outing’ of students’ gender identity to parents
Then there is the Trump ban on diversity, equity and inclusion programs. Every state and U.S. territory is supposed to certify the elimination of DEI by Thursday — or risk losing federal funds and being assessed financial penalties. California is among 16 states refusing to do so.
Meanwhile, California colleges and universities also face the loss of billions in grant funding over DEI penalties and over whether the Trump administration concludes that enough has been done to combat alleged campus antisemitism.
Maine is the first state to face full throttling of its the K-12 funds from the Trump administration.
This month, the U.S. Department of Education began an “administrative process” to cancel all education funding for Maine. The state’s K-12 schools have received about $358.4 million, or $2,062 per pupil annually, from the federal government, according to research from Education Data Initiative. The department also referred the Maine Department of Education to the U.S. Department of Justice for “further enforcement action.”
In addition, the U.S. Department of Agriculture, which oversees school food programs, immediately suspended a portion of its funding to the state. The withheld dollars, according to Maine, resulted in cutting off meals for young children who attend day-care programs, at-risk school-age children outside school hours and people in adult day-care programs, according to court documents. There has not yet been a cutoff of all school food aid, but Trump has said multiple times that he’s going to take back every federal dollar from the state.
Maine sued for relief based on the first wave of cuts, and a U.S. district judge granted a temporary restraining order, meaning that the funding is supposed to be restored until courts decide the case on its merits.
Read more: California defies Trump order to certify that all school districts have eliminated DEI
The Trump administration recognizes only male and female in terms of who is entitled to join a sports team, in particular a women’s team. According to court filings, a qualified participant on a women’s team is defined as “a person belonging, at conception, to the sex that produces the large reproductive cell.” Males, by comparison, are the ones with the “small reproductive cell.”
Under the Trump administration, there is no discrimination protection based on gender identity and therefore transgender students have no right to be in sports or locker rooms provided for women. To allow transgender students in these spaces amounts to illegal sexual discrimination against women, according to the Trump administration.
The Trump administration contends Maine is violating federal antidiscrimination laws as well as protections implied by the U.S. Constitution.
Nationwide, more than half of states already had a ban on sports participation by transgender youths. However, the majority of transgender students live in states without such a ban, according to UCLA’s Williams Institute, a think tank that conducts research on sexual orientation and gender identity law and public policy.
Many jurisdictions without bans specifically permit students to participate in sports consistent with their gender identity, including California. New York State recently enacted a constitutional amendment prohibiting gender identity discrimination, which some have argued will protect transgender athletes from exclusion from women’s sports.
Is Maine an easier target?
Some critics speculate that targeting Maine first on the issue is a better strategy.
“California is a much bigger state, and that makes a difference,” said Jesse Rothstein, professor of public policy and economics at UC Berkeley. “The administration is hoping that states like Maine will buckle, that they won’t be able to afford to go without the money for the duration of a lawsuit. Picking a fight with the state of California would be a big deal.”
And from a political standpoint, he added, California has congressional districts — represented by Republicans — that rely on federal funding.
“I think that that would create political problems for the administration that they don’t face in Maine,” Rothstein said.
Nonetheless, under current court interpretation of federal law, Maine should prevail if the state can stick it out, said Rothstein and several other critics of the Trump administration.
“There’s no legal basis for withdrawing food-aid funds because you don’t like the policy around transgender students in sports,” Rothstein said.
Supporters of the Trump’s action assert his policy will win in court. They say it has been long established that states can lose federal funding if they violate a federal body of law called Title IX, which governs areas such as sexual discrimination, sexual harassment and sexual assault. Title IX protections apply to schools that receive federal funds, including athletic programs.
Using the leverage of funding to enforce antidiscrimination law “is the way Title IX works,” said Huebert, of Liberty Justice Center.
A state doesn’t have to accept federal funding, but if it does, federal rules must be followed, said Sarah Parshall Perry, vice president and legal fellow at Defending Education, which describes itself as committed to eliminating political ideologies in public education and which is broadly supportive of Trump’s education policy.
“As a matter of regulatory, statutory and constitutional law, they’re on very solid footing,” Parshall Perry said. And politically, “it polls very, very well for Republicans.”
There is, however, disagreement among conservatives about whether Trump is overreaching — intruding into a matter that should be left to more local authority.
“First and foremost, the federal government should not be in the business of funding education, free meals, etc.,” said Neil McCluskey, director of Center for Educational Freedom at Cato Institute, a libertarian thinktank. However, “if the federal government is going to fund things like education and nutrition, it is better that that funding come with few strings attached, especially when it comes to clashes of values.”
For Maine — and perhaps for California — the legal counterattack will argue that the Trump administration is overreaching in two ways: asserting authority outside its jurisdiction and violating laws that govern the process for withdrawing funding.
These two defenses have come up repeatedly in a multitude of legal actions to date against the Trump administration. California has at least a dozen lawsuits in progress to block various Trump actions.
Read more: California, other states sue Trump administration over clawback of COVID school funds
California can base some hope on a legal parallel that dates to Trump’s first term, when he went after federal funding for so-called sanctuary cities — which opposed Trump’s immigration policies. At that time, Trump’s effort failed in the courts, noted Graeme Boushey, director of Center for the Study of Democracy at UC Irvine.
In the current situation, “the legal argument for broadly coercing a state into doing what you want isn’t really different,” Boushey said. “What concerns some observers is that the thing that’s changed is the composition of the U.S. Supreme Court, tilting more in favor of the Trump administration.”
If the Trump administration does prevail in court against Maine, “they will almost certainly pursue California, moving forward,” Boushey said. “And then there’s going to be nothing to stop them from rinse, wash, repeat this again for immigration policy, environmental deregulation — you name it.”
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This story originally appeared in Los Angeles Times.
