In the 10 days since President Donald Trump returned to the White House, he has set a dizzying pace for his second term and is endeavoring to make his mark on the nation’s schools, despite laws limiting the federal government’s K-12 reach.
His most direct efforts to dive into education came Wednesday, when the president issued two executive orders, directing federal agencies to determine how to expand school choice and develop a strategy to end what he considers “radical indoctrination” in schools.
Both orders put federal dollars on the line to hammer home his agenda. With existing law, though, the White House has no bearing on curriculum, and no unilateral ability to pull back funding from individual schools or federal education programs.
Regardless, the administration is moving aggressively in ways that differ from Trump’s first term, said Derek Black, a professor of law at the University of South Carolina who specializes in constitutional law and public education.
“This seems like a situation in which they know they don’t have the power, but they seem to be more aggressive, and trying to push power where they may very well not have,” he said.
It’s not atypical for a president to tell agencies to look into how they should undertake certain priorities, but it is unusual for the president to do it so publicly through orders like these, Black said.
“Part of what we have, to be honest, are executive orders that are putting what would normally be private conversations on public display; there’s a certain amount of shock and awe to that, because you just don’t normally do that,” Black said.
Here’s a closer look at these two executive orders, and their implications.
Trump executive order threatens funding over ‘radical indoctrination’
What does this order do?
It mandates that administration officials develop plans to eliminate federal funds for schools that Trump says indoctrinate kids based on “gender ideology” and “discriminatory equity ideology.”
The order also reinstates Trump’s 1776 Commission, which the president created in his first term to promote “patriotic education,” but was disbanded by former President Joe Biden.
What does Trump consider “radical indoctrination,” and is it happening in schools?
Trump’s executive order identifies “discriminatory equity ideology” and “gender ideology” as two examples of “indoctrination” happening in schools.
The order defines “discriminatory equity ideology” as “ideology that treats individuals as members of preferred or disfavored groups, rather than as individuals, and minimizes agency, merit, and capability in favor of immoral generalizations.” Examples of this, according to the order, would be saying that members of a race, color, sex, or national origin are morally or inherently superior, while another is “racist, sexist, or oppressive.” The order also considers calling the United States a “fundamentally racist, sexist, or otherwise discriminatory” nation part of this ideology.
Citing an executive order from Trump’s first day in office that made it federal policy to recognize only two sexes, it defines gender ideology as replacing “the biological category of sex with an ever-shifting concept of self-assessed gender identity.” It asserts that students are being “made to question whether they were born in the wrong body and whether to view their parents and their reality as enemies to be blamed.”
Though Trump and other Republicans—in state legislatures, in school board meetings, and in the Capitol—have repeatedly alleged that schools are using critical race theory to indoctrinate students to believe the United States is a racist nation, there’s little evidence this is happening on a wide scale.
An EdWeek Research Center Survey found in 2021 that just 8 percent of teachers said they had taught or even discussed critical race theory with their K-12 students. A study released this month found that high school students confirm that most schools aren’t teaching a one-sided portrayal of the nation’s politics and history, but that their teachers still grapple with discussing controversial topics in class. And a sweeping report last year from the American Historical Association found teachers mostly said they try to develop students’ historical thinking skills—teaching them how to think, not what to think.
Meanwhile, roughly 3 percent of high school students identify as transgender, and 2 percent are questioning their gender identity, but these students face high rates of bullying and symptoms of depression. Researchers and advocates say schools are a vital piece of the puzzle for improving those mental health outcomes and supporting students.
Does this order immediately cut funding to schools?
No, this order does not immediately cut funding. It directs several federal agencies—the Education, Defense, and Health and Human Services departments—to develop a strategy with recommendations and a plan for eliminating federal funding to schools that are “discriminatory” based on its definition of “gender ideology” and “discriminatory equity ideology.”
Over the next three months, agencies must identify funding sources and streams, including grants and contracts, that go toward K-12 curriculum, instruction, and activities, as well as teacher education, certification, and training that support what the administration considers indoctrination and social transitioning. The agencies must then identify a process to prevent the distribution of rescind awards for those funds.
The Education Department, its secretary, and the federal government have no authority over curriculum matters. Within the last decade, Congress tightened up this very language to make clear that the states are fully in control of curriculum and academic standards, Black said.
“That’s a bipartisan position,” he said. “That’s a piece of legislation that 85, 90 percent of Congress signed in the last couple of months of the Obama administration, when they couldn’t agree on the color of the sky.”
How could schools lose funding?
The executive branch can’t pull funding unilaterally, said Black.
Under nondiscrimination laws including Title IX and Title VI, the department’s office for civil rights would have to investigate allegations, find a violation, and also find that the school is refusing to address the violation. The department would recommend a funding termination, and there would be a waiting period, during which Congress could override the department’s attempt to terminate funds, Black said.
Through case law and regulation, the department can’t cut all funding to a school, either, to keep from harming innocent recipients, and to prevent vindictive or punitive use. The funding termination—which is rare—would have to target the particular program where OCR has found a violation.
School districts can also appeal funding termination decisions.
Title VI of the Civil Rights Act of 1964 prohibits race discrimination by programs receiving federal funding. If schools are being discriminatory through curriculum, that remains illegal and unconstitutional, Black said.
“What has changed, I think, is what the administration perceives to be discrimination,” he said. “If the administration … was to try to cut funding to a school based upon their perception that something is discriminatory, when, in fact, it is not discriminatory, then there are going to be further legal proceedings.”
Trump orders federal agencies to devise guidance on expanding school choice
What does the order do?
The executive order directs a number of federal agencies to look into their ability to use funds they oversee to allow families to attend private schools—including religious schools—and charter schools. Under the order, agency heads have to report back in the coming months on the options they have for doing that and their plans for implementing those options for families starting next fall.
Does this order mean more kids are eligible to use public money for private school?
No, but it does lay the foundation for the federal government to try to expand the availability of school choice funds. The order is fairly narrow, because the federal government’s role in public education is traditionally limited.
It directs the U.S. Department of Education to develop guidance for states in the next two months on how they can use their formula funds—such as the Title I funds they receive to help students from low-income households—to support school choice initiatives.
It makes a similar request of the U.S. Department of Health and Human Services to author guidance explaining how states can use federal child care subsidy funds to support private and religious options.
But the order aims for more direct action in some places.
It directs the departments of Defense and Interior to develop plans for expanding choice under the order starting in the fall. Those agencies run some of the only school systems the federal government directly oversees—the Department of Defense Education Activity schools on military bases and the Bureau of Indian Education.
It also instructs the Education Department to include school choice as a priority through its discretionary grant programs, which include a number of competitive grants.
Can the department just reallocate funds to pay for vouchers?
The secretary can’t prioritize whatever they want without boundaries, Black said.
If the department tried to set aside funds from existing programs for vouchers, such a move would face legal challenges, Black said.
“They are not free to just move around Title I funds however they want to. … It’s just not within the secretary’s power to play with that money,” he said. “But, it seems to me, there’s at least a directive to see if they could try to play with that money.”
During Trump’s first term, as schools struggled to navigate the COVID-19 pandemic, his education secretary Betsy DeVos at first issued guidance calling for COVID relief money to be shared between public and private schools, before she walked it back.
“She took steps in that direction, and then the lawsuit was filed to block and overturn what it was that she was demanding,” Black said. “She didn’t have power to do it.”
Isn’t there a push in Congress to expand school choice, too?
Yes. Nearly in lock step with Trump’s executive order, Republican lawmakers have introduced legislation in both chambers that would expand school choice through a federal tax-credit scholarship program. It’s not the first time such legislation has been introduced.
The bill—sponsored in the Senate by Republicans Tim Scott of South Carolina and Bill Cassidy of Louisiana, who also is the chairman of the Senate’s Health, Education, Labor, and Pensions committee—would provide tax credits to people and businesses that donate to organizations that grant scholarships for students to attend private schools.
Under the measure, the federal government would provide $10 billion annually in tax credits.
To be eligible for the scholarships, students would have to come from families earning up to 300 percent of the median gross income for their area. They could use the scholarship awards to cover tuition, fees, books, supplies, and equipment for private or public schools.
