It’s been a week of threats and explanations when it comes federal funding for schools.
President Donald Trump made waves Wednesday for saying he “may cut off funding” to schools that don’t restart in-person classes in the next academic year. He repeated the threat in a tweet Friday, asking “why would the Federal Government give Funding?” to schools that don’t do so. Throughout the week, there have been variations on that theme—with more nuance—from other top administration officials.
After initially saying she was “very seriously considering” withholding federal funds in a Tuesday interview, U.S. Secretary of Education Betsy DeVos then said on Thursday that the administration’s aim is to send some federal aid directly to parents whose children attend schools that haven’t resumed regular classes, in order for those children to get instruction. (Whether those children would be barred from using that aid on virtual schools was unclear.) And on Wednesday, Vice President Mike Pence suggested that additional virus aid could be conditioned in some way on resuming face-to-face classes.
However, the administration can’t “cut off” money that doesn’t exist yet. And redirecting some federal aid to families isn’t necessarily the same as halting federal aid to schools in general. Remember, Trump officials want schools to fully reopen on normal schedules, so hybrid models don’t cut any ice under that scenario.
Let’s explore some questions related to the most direct—but not necessarily only—interpretation of Trump’s repeated declaration.
Can the administration cut off annual funding for schools?
When Congress appropriates money for specific purposes, such as when it funds programs under the Every Student Succeeds Act—the main federal K-12 law—the executive branch must make sure it’s spent the way lawmakers specify. There’s nothing in ESSA that allows the education secretary to condition funding on whether instruction takes place face-to-face. In fact, ESSA was written in part to put clear limits on the education secretary’s power.
A main architect of that law, Sen. Lamar Alexander, R-Tenn., is still in office and still chairman of the Senate education committee. We reached out to his office for comment, and will update this post if we hear back. We highlighted a bill from two GOP House members last month that would cut off federal funds to schools if they failed to restart in-person instruction by Sept. 8. That bill has gone nowhere since being introduced, but it does underscore the idea that Congress is in the driver’s seat here.
Now, schools get funding under several laws and from several departments, not just the Education Department. But we’re not aware of funds that are conditioned in the way that would fit a straightforward reading of what Trump wants. Under special education law, the feds can cut off future funding to a state if it does not maintain its own spending on students with disabilities in accordance with federal law. For example, see this settlement over special education spending between the department and South Carolina in 2016.
But again, that power relies on federal law approved by Congress.
“I have a really, really hard time finding a legal justification for how it could be done” based on money already awarded or distributed to states and schools, said Anne Hyslop, a former Obama Education Department official who’s now an assistant director at the Alliance for Excellent Education. “I can’t see how offering a remote learning program is an act of noncompliance. ... Fully online schools have gotten these funds before. So you can’t create a new requirement out of whole cloth.”
Has the federal government already sent out money to schools for the upcoming year?
Yes. We won’t get too deep into the weeds, but because of the way the federal education budgeting process works, a lot of current federal aid was awarded to schools beginning on July 1 through a method called “forward funding.” This money becomes available to schools from July 1 of this year through Sept. 30 of next year. This timing helps make life easier for schools whose class schedules don’t match the federal fiscal year, which runs from Oct. 1 to Sept. 30.
Many, if not most, of the big-ticket programs under ESSA, like Title I, rely on forward funding. See page 10 of this Congressional Research Service report for a helpful chart about the issue.
Sometimes, discussions at the department do take place about withholding state administrative funds over possible noncompliance with federal law. That’s not money that’s used directly by schools.
And, Hyslop added, posing a rhetorical question, “Where is the requirement that fully online schools or districts cannot get funds?”
A spokeswoman for the Education Department told the New York Times earlier this week that the agency was “looking at all of our options” to see if and how it could withhold funds. But the point is that even if the administration officials found a provision that they interpreted as a way of letting them freeze money, they might have missed their chance when it comes to a big chunk of federal aid.
Does the Impoundment Control Act prohibit Trump from freezing money?
The Impoundment Control Act is designed to sharply curtail the president’s power to freeze or refuse to spend congressionally appropriated money. If that law sounds familiar, this might be why.
If the president wants to temporarily freeze or rescind money appropriated by Congress, the chief executive has to send a “special message” to lawmakers explaining why. That temporary freeze doesn’t require congressional approval, but the president does have to point to “unforeseen contingencies” or other reasons to justify his move, as PolitiFact put it. A permanent freeze requires the affirmative consent of Congress.
However, in 2020, the Government Accountability Office said Trump’s decision to temporarily withhold military aid to Ukraine in 2019 had violated the act, because the president’s Office of Management and Budget “withheld funds for a policy reason, which is not permitted under the Impoundment Control Act.”
Freezing aid to schools that don’t fully resume face-to-face classes would represent policy. Congress could swiftly override any attempt by Trump to freeze aid for schools, which of course could be viewed by the public quite differently than support for a foreign country. Generally speaking, the president gets more deference on foreign policy and national security than domestic policy. And unlike the situation in Ukraine, Trump’s public declaration of his interest in cutting off aid in some way might make any attempt to sidestep (or use) the Impoundment Control Act to achieve his aim more difficult.
Could all of this change?
Congress can change the language of ESSA and other education laws whenever it likes, but there’s absolutely no indication lawmakers want to do that.
And top Democrats for education on Capitol Hill have already told us they reject the idea of conditioning future virus relief on schools reopening their buildings and resuming regular classes. We don’t know how negotiations in Congress and the Trump administration will go on that front, but the phrase “non-starter” might apply here.
There’s one more problem if the department hits on and acts on a strategy for withholding federal funds: the courts.
“I can’t imagine there would not be lawsuits,” Hyslop said.
Photo: President Donald J. Trump speaks during a coronavirus task force briefing at the White House in April. (Shawn Thew/CNP via ZUMA Wire)