The threats to cut off schools’ federal funds have come at a dizzying pace in the past month, since President Donald Trump was sworn into office for his second term.
The president signed an executive order in his second week telling top administration officials to figure out how to withhold federal funds from schools that he says indoctrinate kids based on “gender ideology” and “discriminatory equity ideology.” Then he signed an order threatening funding if schools and colleges allow transgender girls to compete on girls’ sports teams. An order last week threatens money to schools and colleges with COVID-19 vaccine mandates. And the U.S. Department of Education late last week directed schools to end essentially any race-based programming or risk the loss of funds.
In making those threats so often, Trump is teeing up the use of the U.S. Department of Education’s legal authority to withhold federal money from schools as an enforcement mechanism for the nation’s civil rights laws. But it’s an authority the department has seldom used. And when it has, it’s proven to follow a drawn-out, yearslong process, during which school districts have multiple chances to comply with the laws they’re said to be violating and Congress even has the opportunity to intercede.
The last time the Education Department withheld funds from a school district over a violation of a civil rights law was in 1990, according to Education Week research. And that case stemmed from a complaint the department began investigating six years earlier, in 1984.
The past month isn’t the first time Trump has threatened to withhold funds from schools that aren’t following his political wishes. He made several of those threats during his first term. But the threats over the past month have been backed by executive orders and agency actions.
“This is all a huge escalation,” said Eloise Pasachoff, a professor at Georgetown Law who specializes in administrative law. “They have come in hard, removing the assertions of extremely expansive authority and are just kind of operating as though what they say is right.”
If the administration follows the law and established precedent, the road won’t be easy to see such orders through, as the process of withholding funding is drawn-out, and the efforts come as Trump seeks to shrink the agency he’d be relying on to enforce his wishes.
But Trump has already used dollars as a lever to accomplish his ends. His administration in recent weeks has slashed scores of Education Department contracts, most stemming from the agency’s research arm, and killed hundreds of millions of dollars in grant funding for teacher training it said embraced diversity, equity, and inclusion. Terminating multiyear grants due to changes in priorities was unheard of before Trump’s first term, according to Pasachoff.
Trump also sent school districts into a flurry of panic last month with a funding freeze that sought to root out spending that didn’t adhere to his priorities. Though it was halted by litigation, the episode still prompted concerns from lawmakers, who pressed the likely Secretary of Education Linda McMahon to say at her confirmation hearing whether she would disburse the funds appropriated by Congress and follow the law.
Though McMahon pledged to distribute funds passed by Congress, she echoed the president, saying “it is worthwhile to take a look at the programs before money goes out the door.”
“It is much easier to stop the money as it’s going out the door than it is to claw it back,” McMahon told lawmakers.
There is a process to pulling funds—if the administration follows it
Trump’s threats to disrupt funding for schools and universities that don’t align with his vision go back to his first term, when he vowed to ax federal dollars if public schools continued to use the New York Times’ Pulitzer Prize-winning 1619 Project for lessons on slavery, or if public schools chose to hold remote or hybrid classes during the COVID-19 pandemic.
Those edicts came through posts to social media, were vague, and never came with agency action, however, Pasachoff said.
Legally, it’s no easy feat to just pull funds from schools if they teach about race, have a DEI director, or allow a transgender athlete to play alongside her teammates.
The department’s office for civil rights would first have to investigate, find wrongdoing under a civil rights law, and order the school to change its policies. If a school didn’t make changes, then the Education Department could move to suspend its funding. Congress could intervene to stop the funds from being cut, and the school district could appeal.
Through case law and regulation, the department can’t simply cut all funding to a school, either, to keep from harming innocent students and staff. The funding termination would have to target the particular program where OCR has found a violation.
But more recently, it appears federal agencies aren’t following all the steps, Pasachoff said. New York City issued a news release last week saying that city officials had found $80 million in funding from FEMA revoked without warning.
“There’s an actual process contemplated by the law before just unilaterally pulling the money,” Pasachoff said. “The challenge now is that it’s not clear that the agencies are in a position to be following what the law requires in terms of rescinding the money.”
The Education Department’s office for civil rights has already opened a number of its own investigations against schools and athletic associations over policies toward transgender athletes and the opening of an all-gender bathroom that the department said could be potential violations of Title IX, the nation’s law barring sex discrimination at federally funded schools, as the Trump administration is interpreting it.
And in a recent “Dear Colleague” letter, the office laid out how it would interpret Title VI of the Civil Rights Act of 1964, which prohibits race discrimination by programs receiving federal funding. OCR’s acting director told districts and colleges they must cease using “race as a factor in admissions, financial aid, hiring, training, and other institutional programming.” The office gave districts until March 1 before it says it will open investigations into schools and universities that don’t comply.
“Dear Colleague” letters are standard communications from the department to explain how the federal agency will operate. But the sweeping scope and claims of authority of the most recent letter are unusual, Pasachoff said.
Regardless of the policy or administration, districts can ignore such guidance and go to court if OCR tries to dock their funding and force the office to argue it has the legal authority to impose such conditions. But that’s a tall order for some districts, she said.
“The difficulty is that not every institution wants to go through all of that hurdle, so it’s sometimes just easier to comply, even if it’s not at all clear that the thing that the agency is asking you to do is legal,” she said.
An unusual effort to ax federal funding
The department can take back funds if a grant recipient isn’t complying with grant rules. But it’s different for Trump’s administration to try to impose conditions on already appropriated funds if they don’t comply with his executive orders, and the president can’t impose conditions without necessary statutory authority to do so, Pasachoff said.
“It’s one thing to say, ‘Here are the new conditions, and you only get our money if you comply with these new conditions,’” she said. “But it is different to say, ‘We’re going to pull money that you already have on the back end for non-compliance with the new things we’re making you do. It’s not only rare—but it’s probably not even legal.”
Historically, agencies have been reluctant to cut off funding when recipients aren’t fully in compliance—because then it would make it harder for the recipients to become compliant, Pasachoff said.
But it has happened. In 1990, the Education Department concluded a years-long process by moving to cut off federal funding to the DeKalb County, Ga., schools and the Georgia Department of Education after the district refused to let the office investigate eight pending complaints concerning the educational placement of special education students.
The funding was restored after the district agreed to turn over information the office had requested, but the investigation first prompted a court case about whether OCR had the authority to investigate certain special education complaints, and whether the district could refuse to cooperate with a probe it believed overstepped the federal agency’s jurisdiction, Education Week reported at the time.
The department’s move to cut off funding was the first time it had done so since 1982, a spokesperson said at the time. Not long after DeKalb, the agency threatened Oakland, Calif., schools in the mid-1990s after the district placed English learners in classes inappropriate to their language levels without access to necessary materials, courses, and educators. But the agency ultimately didn’t cut off funding.
Trump’s first administration had similar policy priorities to the current one, but it didn’t move to cut off districts’ funding.
The first administration was more involved in “undoing the consequences of the Obama administration’s eight years in office,” said William Trachman, who served as a deputy assistant secretary in the office for civil rights in Trump’s first term and is now general counsel for the Mountain States Legal Foundation, a legal advocacy group.
The office for civil rights was active, he said earlier this week, but he noted that aggressive enforcement was “always a challenge.”
“My sense is that this administration can focus on making more progress beyond the great work that we did,” he said.
