President Donald Trump, in the first month-and-a-half of his second term, has issued a flurry of executive orders, frozen or terminated federal spending in unprecedented ways, and empowered the world’s richest man to pursue a sweeping and fast-moving campaign of disruption and downsizing across the federal government.
School districts and policymakers across the political spectrum have struggled to keep up with the dizzying pace of news developments, including newly announced actions followed swiftly by rebukes, rebuttals, and revisions. District leaders are nervously rejiggering their budgets, updating their policies, fielding anxious questions from staffers and parents, and scrambling for elusive clarity.
Many of Trump’s policy moves so far have prompted lawsuits alleging he’s overstepped his constitutional authority as the head of the executive branch. Keeping track of what the president is allowed to do, and what he is capable of doing even when he’s not allowed, has been more difficult than ever.
Education Week is offering resources to help the education world make sense of the second Trump presidency.
Here’s a look at what Trump can and cannot legally do when it comes to education, according to an Education Week review of published statutes and court rulings, and consultations with experts on federal law.
- Eliminate the U.S. Department of Education?
- Decide what K-12 schools can teach?
- Eliminate protections for undocumented immigrants in school buildings?
- Freeze federal funding approved by Congress?
- Withhold federal funding from schools that don’t comply with his executive orders?
- Fire any federal employee he wants?
- Cancel federally funded education contracts and grant programs?
- Halt federal collection of education data that doesn’t align with his priorities?
- Expand private school choice nationwide?
- Eliminate the Federal Emergency Management Administration (FEMA)?
- Ignore a court order halting a policy change?
Eliminate the U.S. Department of Education
Why not? Dissolving a cabinet agency requires an act of Congress. The president who most recently took concrete action—beyond merely releasing a proposal—to attempt something similar was Barack Obama, who asked Congress in 2012 to give him the power to dissolve the Commerce Department. Congress declined.
Has he tried? No, but reports have been circulating for weeks that he’s planning to soon sign an executive order that calls on the secretary of education to prepare for the department’s elimination. That executive order alone wouldn’t be enough to dissolve the department, and axing the federal funding that schools receive from the Education Department would require congressional action. The department’s existence is mandated by federal law, as are most of the agency’s offices and individual programs, meaning the president could not unilaterally do away with them.
🔍 Read more on Trump’s efforts to shutter the U.S. Department of Education.
Decide what K-12 schools can teach
Why not? Several statutes prevent the Education Department, its secretary, and the federal government from muscling in on curriculum matters. Even within the last decade, Congress has tightened up this language to make clear that states set curriculum and academic standards.
Has he tried? Yes. The president has signed several executive orders that threaten to pull funding from districts if they disobey his actions; one seeking to end what he calls “radical indoctrination” attempts to influence curriculum. The order directs the secretaries of education, defense, and health and human services to work with the U.S. attorney general on an “ending indoctrination strategy” by examining funding streams and penning a plan that eliminates funding for schools that have any K-12 curriculum, instruction, or program that “directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology.”
Another directive from the Education Department’s office for civil rights instructed schools and colleges to end essentially any race-based program before backtracking slightly in a follow-up document.
Trump and other Republicans—in state legislatures, school board meetings, and the U.S. Capitol—have alleged without evidence that schools are using critical race theory to indoctrinate students to believe the United States is a racist nation. Trump promised repeatedly on the campaign trail to end the flow of federal dollars to schools if they taught critical race theory—an academic theory that some conservatives have used to describe teaching on race and racism.
🔍 Read more about how Trump can try to force schools to change their curricula.
🔍 Read more about the “radical indoctrination” executive order.
Eliminate protections for undocumented immigrants in school buildings
Why? The federal Department of Homeland Security maintained guidance for years—including through Trump’s first administration—that limited immigration enforcement in “sensitive locations” including schools. The Biden administration sent another memo to that effect in 2021 expanding the list of such locations to include school bus stops and child care centers. But because those policies weren’t enshrined in law, Trump had the authority to rescind them, and on his first day in office, he did.
Has he tried? There have been no reports as of March 10 of Immigrations and Customs Enforcement (ICE) officers entering school buildings and attempting to arrest K-12 students. A man dropping off his children at a Chicago charter school was reportedly detained by ICE agents in late February.
Even without the “sensitive locations” policy in place, undocumented students have other rights. A Supreme Court decision from 1982 protects undocumented immigrants’ right to attend public schools for free. The Family Educational Rights and Privacy Act, or FERPA, keeps most student information confidential without parents’ permission to release it. Still, many schools that enroll immigrant students are bracing for the possibility of disruption, especially as some states mimic the federal government’s stance and advance policies that target undocumented immigrant students. The Denver school district sued the Trump administration over its removal of protections on school grounds, but a federal judge dismissed the case.
🔍 Read more about undocumented students’ rights and protections in schools.
Freeze federal funding approved by Congress
Why not? Only Congress has the power of the purse under the U.S. Constitution (1.8.1 and 1.9.7). The Impoundment Act of 1974 gives the president limited authority to withhold spending approved by Congress: he has to get permission from Congress before following through.
Has he tried? Yes, on at least three separate occasions during his first month in office. He issued an executive order halting climate-related spending approved by Congress during the Biden administration. The federal Office of Management and Budget announced a government-wide spending freeze. And, from the Education Department’s budget, deputies of Trump’s billionaire adviser Elon Musk have terminated hundreds of millions of dollars in federally funded education research, teacher-training grants, and technical assistance centers.
Two judges have repeatedly ordered the Trump administration to unfreeze all congressionally approved funds. At least two other lawsuits challenge the cancellation of the teacher-training grants, and one judge put the cancellation of grants in eight states on hold temporarily.
🔍 Read more about how research cuts and spending freezes have affected K-12 education.
Withhold federal funding from schools that don’t comply with his executive orders
Why not? It’s not legal for the executive branch to unilaterally impose new restrictions on already appropriated money, as Congress controls the power of the purse. But there are mechanisms for the executive branch to pull back funding from public schools if they don’t comply with grant rules or civil rights laws. There are numerous steps to halting funds, however, and Congress can reverse the department’s decision.
Has he tried? Yes, the Education Department and three other federal agencies on March 7 moved to terminate funds from Columbia University due to alleged harassment of Jewish students on campus, which experts say circumvented normal processes. The U.S. Department of Agriculture has also frozen funding to the University of Maine System.
Trump has issued executive orders threatening to revoke federal dollars if schools allow transgender athletes to play on sports teams (the basis for the probe into the University of Maine System and other entities in Maine); have COVID-19 vaccine requirements; or teach about racism or gender in a way he considers “radical indoctrination.” The Education Department also issued a directive instructing schools to end race-based programming or risk losing federal funds before partially walking it back.
As of March 10, he hasn’t moved to immediately yank a K-12 district’s federal funding allocation as a consequence of violating these directives, several of which are currently facing court challenges. Legal experts have pointed out that Trump can’t change the meaning of established statutes through executive orders, and that the orders have limited weight in court.
🔍 Read more about how one state’s defiance could bring this issue to court.
🔍 Read more about how OCR can—and can’t—enforce these executive branch directives.
Can Trump and Musk fire any federal employee they want?
Why? Some positions in the Education Department are politically appointed, and the president and education secretary have latitude over hiring and firing for those positions.
But many employees are career staffers, who have worked in the department through different administrations and have certain civil servant protections. Congress is not in the business of hiring employees, and where there is gray area, there is discretion for the executive branch to downsize. The Trump administration can cease hiring, or choose not to fill vacant positions when employees leave.
On the other hand, there are protections for civil servants that prevent outright firings in some cases. And when Congress has created certain offices and positions within departments and charged them with specific duties, the administration can’t just do away with them.
Has he tried? Early into his second term, the president issued an executive order that made it easier for his administration to review job functions of employees hired within the last year—many of whom aren’t fully covered by civil service protections. Trump’s administration cut a swath of probationary employees through a far-reaching dismissal, which a judge later found to likely be illegal. Trump also made it easier to reclassify employees whose jobs involve policy work as political appointees, allowing him to remove career staffers.
But the “Fork in the Road” deferred resignation offer and a recent $25,000 buyout deal—produced by Elon Musk’s Department of Government Efficiency—which has sought to shrink the federal government headcount, prompt legality questions. For instance, employees who accepted the deferred resignation offer were to be paid through September. But Congress hasn’t appropriated funds beyond mid-March. Still, under Trump and Musk, more than a hundred employees in the Education Department have been placed on leave, terminated, or taken the early offers. Education Secretary Linda McMahon said in a recent interview with NewsNation that about 300 employees had taken the most recent buyout offer of up to $25,000.
🔍 Read more about downsizing federal workers here.
🔍 Read more about how Trump can’t axe the Education Department by firing all its staff.
Cancel federally funded education contracts and grant programs
Why or why not? Many Education Department grants and contracts are explicitly mandated by Congress and mentioned by name in federal law. Cabinet secretaries have authority to change priorities for grant submissions, but the law says agencies must first go through a lengthy rulemaking process that includes notices published in the Federal Register, and comment periods soliciting public feedback.
Has he tried? Yes. DOGE canceled dozens of contracts in February, including for efforts to evaluate federal investments, expand educator pipelines, improve instructional practices, and support students with disabilities. The administration also excised contracts for regional education laboratories and comprehensive centers—organizations that help states and schools coordinate improvement efforts.
The administration has argued these cuts were necessary because the contracts in question didn’t align with the administration’s priority of ending DEI-related initiatives. Groups that represent teacher-preparation programs are suing the Trump administration, aiming to get some of the grant funding restored. The judge overseeing one of those cases on March 10 ordered the Trump administration to temporarily lift its cancellation of teacher-training grants in eight states.
Halt federal collection of education data that doesn’t align with his priorities
Why? The Institute of Education Sciences and many of its functions—like surveys on student characteristics and crime in schools—have been enshrined in federal law for decades. The same is true for the Census Bureau’s American Community Survey, which collects expansive volumes of education data. Congress would have to change laws in order for those functions to go away entirely. Meanwhile, to add key questions to or change survey methodology for existing surveys, the Trump administration would have to follow procedures outlined in the Paperwork Reduction Act and the Administrative Procedures Act, or urge Congress to change those laws.
Has Trump tried? Yes—his administration canceled Education Department contracts for several key federal data collection efforts, and removed questions about gender identity from several federal surveys. In Trump’s first term, the Education Department went through formal rulemaking to drop some questions from the biennial civil rights data collection.
Expand private school choice nationwide
Why not? Only Congress can approve investing federal funds to provide to parents for private education expenses. The department can influence the private school landscape by structuring competitive grant programs to favor states that have those programs, but it can’t dictate state policy or refuse to spend money approved by Congress for a particular purpose.
Has Trump tried to do it? Not exactly. On Jan. 29 he signed an executive order supporting private school choice. But that order didn’t expand private school choice on a nationwide scale—it directed the Education Department and other federal agencies to review their ability to push for the expansion of private school choice, and to guide states on how to use their education spending in service of more choice options. The order also directed the secretaries of the federal interior and defense departments to review how funds they supply to schools under their purview could be repurposed to favor school choice.
🔍 Read more about Trump’s private school choice order.
Eliminate the Federal Emergency Management Administration (FEMA)
Why? FEMA is a subagency of the Department of Homeland Security, a Cabinet-level agency. During each budget cycle, Congress includes disaster relief funding for FEMA to dole out to state and local governments, including school districts. Eliminating that funding and the agency that uses it would require a new federal law.
Has Trump tried? No, but he’s said he wants to. He signed an executive order on Jan. 24 forming a commission of Homeland Security and Defense officials that will submit a report to the president detailing FEMA’s activities over the last four years. Republican lawmakers have said they oppose getting rid of the agency.
Ignore a court order halting a policy change
Why not? The executive branch has historically acknowledged the role of federal courts in reviewing their actions. But the responsibility of the executive branch to obey a judicial order remains an unsettled issue of constitutional law. Courts can levy fines and other penalties for failing to comply with their orders, but those actions are rarely substantial.
The Federal Judicial Center, the federal court system’s nonpartisan research agency, cites two notable examples of presidents ignoring a court order: President Andrew Jackson refusing to order the release of a missionary living on Cherokee land who had been imprisoned for refusing to take an oath to obey Georgia law, and President Abraham Lincoln refusing a court order to justify the military detention of a Maryland farmer who allegedly betrayed Union troops.
The details of those historical cases remain in dispute, according to an op-ed published March 7 in the New York Times by Erwin Chemerinsky, dean of the Berkeley School of Law at the University of California. “If the Trump administration chooses to defy court orders,” he wrote, “we will have a constitutional crisis not seen before.”
Has he tried? Not explicitly. The Trump administration has yet to adopt a formal position in court that it has the authority to disobey its rulings. And the administration has yet to reject an order from the U.S. Supreme Court. But the administration has skirted court orders halting its attempt to shut down all government spending by exploiting obscure legal loopholes. Some school districts have reported continuing issues accessing federal funds even after the administration agreed to comply with a court order to end the spending freeze.
Sources:
- Congressional Research Service
- Federal Judicial Center
- Government Accountability Office
- Julia Martin, Bruman Group
- National Immigration Law Center
- Naomi Goldberg, Movement Advancement Project
Collage illustrations via Canva
