Executive Orders and Threatened Cuts Challenge Public Education and the Courts 

President Donald Trump publicly singled out Maine Gov. Janet Mills (D) in the White House State Dining Room last week to criticize her state’s refusal to adhere to his executive order banning transgender women from participating in women’s sports. “See you in court,” Mills told him, a reply indicative of the legal battles ahead over changes to public education that the Trump administration is demanding through executive orders, policy initiatives, and funding cuts.

Trump has repeatedly said he would shut down the Department of Education. Though doing so would require congressional approval, his interest in it correctly signaled that schools and universities would be an early target for upheaval during his second presidency. State Court Report spoke to Joshua Weishart, a Suffolk University law professor who focuses on education rights, about how Trump’s actions are affecting education in the United States; how states, universities, and other groups are fighting the changes; and how states might adjust to this new reality. The interview has been edited for brevity and clarity.

Why do you think changes to education policy and funding are an early focus of the Trump administration?

A scourge of new executive orders and actions imperil education, and it’s critical to understand what they have in common: They all destabilize public education.

Public education is necessary for a functional democracy. If you destabilize public education, you are destabilizing democracy.

A second motivation for destabilizing public education is greed. Collectively, federal, state, and local governments spend close to $900 billion on K–12 education, with around $150 billion of that recently coming from the federal government. If even a portion of that public money is redirected from public schools to private schools, who’s going to be enriched? You make public education fail, you turn parents away from public schools, you create excuses to privatize education.

What are the executive orders affecting education, and what will their impact be?

The first category involves promoting the privatization of education through vouchers and charter schools. One executive order instructs federal agencies, including the Department of Education, to develop guidance on how states can change their funding formulas to redirect federal funds like Title I (for school districts with low-income students) to promote what they call school choice — what I call privatization — essentially, allowing public funds to be used for private schools through vouchers and charter schools. The order directs the education department to prioritize those kinds of programs with its discretionary funding and grant programs.

The Education Department can’t unilaterally redirect these funds or the grant programs toward vouchers. Any redirecting of funds has to be approved by Congress. But at the same time, there’s an effort underway in Congress to advance this privatization agenda, and federal funding would be a tremendous boost to that. Of all the executive orders impacting education right now, this one is probably the most consequential. Not because it changes the law — it doesn’t — but because it unmistakably declares the privatization of education is the goal.

Some of Trump’s executive orders also target diversity initiatives and transgender people. Do those affect education?

Yes, the second category of executive orders affecting education is the purging of diversity, equity, and inclusion (DEI) initiatives. One executive order directs all federal agencies to terminate government DEI programs, and it purports to prohibit federal funding for DEI initiatives. In response to that order, the Department of Education dissolved some of its DEI councils and training contracts, withdrew its Equity Action Plan, put DEI staff on leave, and planned to wipe DEI references from about 200 web pages.

Trump also directed the Justice and Education Departments to identify institutions with large endowments to target them for investigations for using DEI programs. Last week, a federal judge in Maryland granted a preliminary injunction blocking the administration from terminating or changing federal contracts as a result of these orders.

Another executive order says the federal government recognizes two sexes and directs the Department of Education to rescind its 2021 guidance that extended certain protections to sexual orientation and gender. The Education Department’s Office of Civil Rights has already begun investigating alleged violations of Title IX relating to these policies. Another policy reversion makes it more difficult to hold colleges and universities responsible for Title IX violations.

Something else that came out of this idea to purge DEI programs is the “Dear Colleague letter,” issued February 14 by the same civil rights office. I think it egregiously misstates the law, but it contends the Supreme Court’s affirmative action decision in Students for Fair Admission v. Harvard applies broadly so as to make all DEI statements, initiatives, and programming constitutionally suspect — not just in higher education, but in K–12 as well. The letter imposes a 14-day deadline for educational institutions to ensure compliance or risk federal funding.

The letter doesn’t have the force of law or change the law, and there is not an immediate threat of withdrawal of federal funding because that can’t happen without a formal investigation process. But the real danger is some educational institutions complying regardless, either as an excuse to purge DEI efforts they were never really committed to or, even if they are committed, they might comply to try and salvage aspects of their DEI programs.

How are the orders aiming to change public school curricula?

One executive order promotes what I call discriminatory censorship. Two components are especially significant. First, it reinstates Trump’s 1776 commission, used in his first term to promote what he called patriotic education. Some are rightfully concerned this is a front for some sort of indoctrination project. The upshot is the federal government has no direct authority over curriculum matters — states and local school districts control curriculum.

The second major component instructs federal agencies to develop plans to eliminate federal funds to schools providing instructions on things like critical race theory and gender ideology. As has been pointed out repeatedly, instruction on these topics in ways the order deems impermissible is not happening in K–12 schools. But the point is to reproduce what happened in Trump’s first administration when states and local districts enacted laws and policies that demeaned inclusionary practices and values and denied students access to knowledge on certain topics, like racism and sexism and gender identity. In a law review article, my coauthor and I discovered that some 20 states and 145 school districts enacted at least one of these types of discriminatory censorship laws.

Again, Trump’s first-term executive order didn’t have the force of law. But it gave states and local districts an excuse to adopt its policies. The danger with this revived order is schools and teachers will self-censor and preemptively change their programs, which can lead to miseducation and hostile learning environments for marginalized students.

Outside of the executive orders, what funding changes or other cuts are you watching?

The National Institutes of Health announced they were directed to reduce grants, which would have an enormous impact on colleges and universities that use that money for research — those funds are just irreplaceable. A federal judge has temporarily blocked those cuts.

There was also a $1 billion federal education research cut in the Department of Education that affected all kinds of research projects — many focused on K–12 education, including best Covid recovery practices in terms of academic programming, post-Covid mental health challenges, addressing disability issues, behavioral problems in classrooms, and student absenteeism.

Trump said often during his campaign that he intended to shut down the Department of Education. Is that still a possibility?

You can’t abolish the department without Congress. But there’s much harm that can be done by being less responsive and less effective in directing Title I and special education funds. Those students will be most impacted by dysfunction at the department.

How have states and institutions begun to fight these changes?

States, educational institutions, civil rights groups, and teacher unions are among the entities that are pushing back — there’s a broad coalition. Almost every executive order is being pushed against, as well as the funding and staff cuts. Just Monday, a court blocked the Department of Government Efficiency’s access to students’ private information housed by the Department of Education.

The judiciary has to perform its check on the executive, so these legal challenges are essential. But they’re also never optimal because they can take so long to get resolved. We must demand Congress perform oversight and act as a check on executive power.

What claims do the lawsuits make?

In general, federal overreach by freezing or suspending funds is challenged as unconstitutional impoundment. Then you have litigation related to terminations of federal workers, which of course affect the Department of Education. For the more political issues — those related to trans rights and the education-related DEI changes — challenges are mostly based on federal civil rights laws as well as the First Amendment, equal protection, and due process rights.

Where do state law and state courts come into play?

Legal challenges of federal executive actions are unlikely to be in state courts, but it is mission critical to still press state courts where possible. Advocates can ask state courts to recognize and define the parameters of state education rights and must include state constitutional rights to education and educational guarantees provided by statutes and regulations in their arsenal. We also must pay closer attention to the interplay of federal and state law. For example, federal law prohibits the secretary of education from trying to control or coerce or supervise any state academic standards. One way for states to push back is to include DEI in their academic standards and curricula.

Should states consider new education-related legislation?

Those who want to protect public education can’t just play defense — we have to improve state law. Progressive states could be trying to fully and fairly fund public schools. They could be trying to revive integration, ban segregated school choice, and do something about the depletion and demoralization of teachers and discriminatory school discipline. They could fight to improve social-emotional learning, expand universal pre-K — all these things are the domain of state law.

How might the cuts affect states’ responsibilities to provide an adequate public education?

Any cuts to federal education spending will place an enormous financial burden on states. States are already burdened by the loss of Covid-relief funding. Any additional cuts contemplated in the coming reconciliation package will further jeopardize states meeting their state constitutional obligations to provide adequate and equitable education. On average, states receive about 10 percent of their education funding from the federal government. But in some states, it can be upward of 20 or 25 percent. That’s a huge footprint states can’t recoup. Ultimately, states have the constitutional obligation to provide an adequate education. The federal government doesn’t have a constitutional obligation to provide anything for education. Any cuts are going to affect states the most and poor states even more.

That could mean a continuation of school finance litigation that we’ve seen for decades now. The problem is that many courts are wary of supervising that and are less inclined to get involved — they see that more as a political question or a separation of powers question. You do have some state courts holding the line and demanding more from their legislatures. But all this pressure puts enormous strain on the whole state government, from the legislature to the judiciary. It’s not going to be pleasant or welcome.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Erin Geiger Smith, Executive Orders and Threatened Cuts Challenge Public Education and the Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 27, 2025), https://statecourtreport.org/our-work/analysis-opinion/executive-orders-and-threatened-cuts-challenge-public-education-and