Shortly after Linda McMahon was sworn in as the 13th Secretary of Education, she pledged to dismantle the Department of Education (ED) as its “final mission.”
Just eight days later, the ED announced a reduction in force (RIF), which impacts nearly 50% of its personnel, as part of a “commitment to efficiency, accountability, and ensuring that resources are directed where they matter most.” Terminated employees were to be placed on administrative leave beginning March 21. The department explained that when Donald Trump was inaugurated it employed 4,133 personnel; after the RIF and voluntary resignations, 2,183 workers would remain.
One week later, on March 20, Trump issued an executive order that proclaimed that “the experiment of controlling American education through Federal programs and dollars—and the unaccountable bureaucracy those programs and dollars support—has plainly failed our children, our teachers, and our families.” Closing the department, Trump observed,
would provide children and their families the opportunity to escape a system that is failing them. Today, American reading and math scores are near historical lows. This year’s National Assessment of Educational Progress showed that 70 percent of 8th graders were below proficient in reading, and 72 percent were below proficient in math. The Federal education bureaucracy is not working…. [Its] main functions can, and should, be returned to the States.
Trump’s EO ordered McMahon “to the maximum extent appropriate and permitted by law” to take “all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.” It also ordered her to ensure “rigorous compliance with Federal law and Administration policy, including the requirement that any program or activity receiving Federal assistance terminate illegal discrimination obscured under the label ‘diversity, equity, and inclusion’ or similar terms and programs promoting gender ideology.”
EO and RIF Enjoined
Lawsuits challenging the EO and RIF filed by 21 states, school districts, non-profit organizations, and labor unions were consolidated in Boston before U.S. Federal District Court Judge Myong Joun, a Biden appointee. The plaintiffs alleged that the EO and RIF were impermissible steps toward dismantling and reorganizing the Education Department, in violation of its enabling legislation (the “Organization Act”), the separation of powers, and Article II, Section 3 of the Constitution that requires the president “take Care that the Laws be faithfully executed,” as well as the Administrative Procedure Act (APA).
On May 22, Joun ruled in favor of the plaintiffs and issued a preliminary injunction against enforcing the EO and RIF. His opinion featured an encomium to the ED, observing that “For over 150 years, the federal government has played a crucial role in education.” He emphasized what he perceived as the department’s critical role in fighting discrimination, and was particularly concerned about a reduction in the number of locations for the Office of Civil Rights and ED attorneys.
Joun held that though the administration could not dismantle or reorganize the department without congressional approval, the RIF would leave the ED unable to carry out its main functions. He found that when coupled with Trump’s campaign promises and McMahon’s statements, the RIF and EO would effectively shut down ED operations without approval.
He also held that the plaintiffs were likely to prevail on their claim that by preventing the Education Department from carrying out its tasks, the administration violated the Organization Act and the Constitution’s separation of powers, under which Congress makes laws and the executive branch faithfully executes those laws, and that the intended transfer of ED’s functions to other agencies violates the Take Care Clause. Finally, Joun held that the RIF also violates the APA because it was issued for an unlawful purpose.
Joun issued a preliminary injunction barring the implementation of the EO and RIF and ordered that any terminated employees be rehired.
The administration conceded that congressional approval is required to dismantle the department, but appealed and sought a stay of Joun’s injunction. It argued that Joun had acted prematurely based on speculation about the impact of the RIF and EO, and lacked jurisdiction because federal employment claims are required to be adjudicated before the Merit Systems Protection Board. It also asserted that the remedy was too broad because it required rescinding all of the layoffs.
The Court of Appeals refused to grant a stay, and the administration then sought an emergency stay from the Supreme Court. That application is pending.
In another lawsuit in March, Joun ordered the ED to reinstate grants for teacher training that had been terminated by the Trump Administration. The Supreme Court stayed his order for being premature. Regardless of whether the Court also stays Joun’s latest order, narrows the injunction, or reverses, the practical effect will be to delay litigation until the EO and RIF are implemented.
Under the EO, Trump intends to transfer loan servicing to the Small Business Administration, and special education, nutrition, and related services to HHS, most of which requires congressional approval. It is unlikely that the RIF won’t cut into mandated services. If the administration does not alter its approach, the next court decision will reach conclusions similar to those reached by Joun. It will issue a more tailored injunction that survives appeal.
The Politics Behind the Education Department
The political questions involved concern the proper role of the federal government in education, and the best structure to achieve its goals.
It does not appear that Trump intends to eliminate all education programs, but rather to end radical left subversion, downsize or transfer certain activities to other departments, and return spending to the states. Some of that can be accomplished with more narrowly tailored measures that target programs that are not protected by statute. However, a substantial dismantling, downsizing, or reorganization of the ED requires congressional action.
The original Department of Education was created in 1867, and the current department in 1979. Today, the ED’s elementary and secondary programs serve nearly 18,200 school districts, and over 50 million students attend roughly 98,000 public schools and 32,000 private schools. Department programs provide grant, loan, and work-study assistance to more than 12 million postsecondary students. Pell Grants administered by the ED support one-third of low-income college students. Half of all undergraduates in the United States rely on some form of federal financial aid. For the 2021-2022 school year, about 14% of elementary and secondary public school funding came from federal sources.
About one in four Americans over the age of three is currently in school. Education spending is about 7% of GDP. It makes no sense, as some conservatives aver, that the federal government stay out of education.
Immediately after the ED was created, the 1980 Republican platform favored its elimination. Despite this, Republicans have never voted to eliminate the department. When a non-binding “sense of the Congress” bill to eliminate the ED was introduced in 2023, 60 Republicans joined with all Democrats to defeat the effort.
Unconstitutional?
Since the Constitution never mentions education, some conservatives believe the ED is unconstitutional pursuant to the 10th Amendment, which provides that “The powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.” A report issued in 1935 by the U.S. Constitution Sesquicentennial Commission asked, “Where, in the Constitution, is there mention of education?” It answered that question succinctly: “There is none; education is a matter reserved for the states.”
Because education is not mentioned in the Constitution, the Supreme Court has held that the federal government is not required to fund it. But it has never held it may not do so. At least in part because of the 10th Amendment, the federal government generally does not directly mandate curricula. Instead, it conditions the availability of funding on specified criteria. As federal aid has become a substantial source of education funding, institutions generally acquiesce to that criteria.
Supporters of a federal role in education refer to the General Welfare Clause in the Constitution’s Preamble and to Article I, Section 8, Clause 1, which provides that “Congress shall have power to…provide for the common Defence and general Welfare of the United States”; the Necessary and Proper Clause, which since McCulloch v. Maryland (1819) has been interpreted to give Congress implied powers and broad latitude; and the Commerce Clause, which likely gives Congress the right to regulate and fund educational institutions with interstate operations.
Supporters of this argument also cite the Equal Protection Clause of the 14th Amendment, particularly when referring to spending that equalizes resources across school districts or for impoverished students. Furthermore, the Supreme Court’s decision in Brown v. Board of Education (1954) authorized the federal government to enforce anti-discrimination laws in education, which is one of the ED’s key missions.
While federal funding of education and the ED’s other functions are likely constitutional, the policies underlying the 10th Amendment suggest that the ED may go too far when it sets detailed conditions for access to that funding.
Testing Failures
It is beyond doubt that the Department of Education has failed in its mission to improve student achievement. National Assessment of Educational Progress test scores have generally declined or plateaued, with proficiency in recent national tests of 4th, 8th, and 12th graders ranging from just 12% to 46% in 11 subjects. In 2021, for the first time America fell out of Bloomberg’s top 10 most innovative countries; when Bloomberg launched its index in 2013, the United States was first.
Some assert that this proves that increased funding doesn’t correlate with performance or, at the very least, supports returning funds to the states, which should be in a better position to know what they need. However, the former conclusion is facile, and the latter only occasionally true.
Declining scores may show the ineffectiveness of misguided spending on progressive priorities, such as Critical Race Theory, the discredited 1619 Project, and schools in which getting the right answer, using the right method, or believing some students are more capable than others is white supremacy. But what about spending that enhances teacher training in traditional pedagogy, reduces class size, improves physical conditions, or provides technology and other teaching aids, tutoring, and specialized instruction within a traditional framework?
Countless studies have shown that, controlling for other factors, thoughtful spending on traditional education goals is a strong predictor of student achievement. As The Heritage Foundation observed, the key is how the money is spent.
Radicalization
The real problem with the Department of Education is its embrace of radical leftist ideologies. Declining achievement is a product of the ideological rot that permeates academia (see here, here, and here), including eroding discipline, eliminating or dumbing down tests, and otherwise reducing standards, including equitable grading (recently rejected in San Francisco), disempowering parents, and ending specialized schools and programs for the gifted.
As students failed to learn core skills, the ED shifted resources to programs and grants centered on teaching radical ideologies (see here and here) and directed funding to so-called “marginalized minorities” and institutions that engage in DEI. The Biden ED required grant applicants to “take into account systemic marginalization, biases, inequities, and discriminatory policy and practice in American history,” and allocated nearly $200 billion to schools for use in programs providing “antiracist therapy for White educators” and that “disrupt whiteness.” Its American History and Civics Education grant program funded only “culturally responsive teaching and learning” that benefits “underserved populations” as part of “the ongoing national reckoning with systemic racism [that has] highlighted the urgency of improving racial equity throughout our society, including in our education system.”
Concurrently, the ED’s Office of Civil Rights forced schools to include biological men in women’s sports and bathrooms, deprived men accused of sexual harassment of their presumption of innocence and right to confront their accusers, eroded free speech, and supported restrictions on people of faith and conservatives.
Apart from the cases before Joun, litigation has been filed to prevent the administration from terminating these grants and programs. Though the department may have to redo some of its actions to comply with the APA, it will ultimately prevail on these policies. Using rulemaking procedures to do so will ensure victory and hamper future administrations that prefer a different course.
A Better Way Forward
Since it is unlikely that, aside from barring DEI, the Trump Administration ultimately will prevail in court on its RIF and EO, it should try another tactic. Programs and services not mandated by statute may be downsized by the administration without congressional action. Other programs and overhead could be reduced or eliminated through a rescission bill under the Impoundment Control Act, which only needs a majority of both houses of Congress to pass; this would not require Democratic support. Congress may approve of transferring functions such as loan servicing or nutrition into agencies that can be more efficient, provided those bills are narrowly drafted.
It is plausible that Congress might approve of moving Title IX and other Education Department enforcement functions to the Civil Rights Division of the Justice Department, but this is superficial. The substantive factors are the priorities and attorneys. The talent pool of academics and civil rights lawyers on which the ED relies is irredeemably progressive. That won’t change merely by transferring programs to other agencies, and little can be done to control the priorities or hiring of a future progressive administration.
While returning funding to the states is consistent with conservatism, progressive states will use the grants for radical leftist agendas, while for medical and technology research it is preferable to allocate funding at the federal level, optimally with apolitical criteria. Realistically, Congress is unlikely to approve of depoliticizing grant conditions or returning funds to the states as block grants.
There is little choice here. Instead of a massive publicity stunt, Trump and McMahon should introduce a rescission measure, do their best to replace staff with centrists and conservatives in a process that complies with federal rules, reset enforcement priorities and grant criteria, and work with Congress to attain achievable goals. The Department of Education won’t go away, but it could go from being a hindrance to an asset.