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What with all the Trump administration’s activity at the end of January, you might not have noticed that it also launched its promised assault on U.S. public education with a pair of executive orders. “Expanding Educational Freedom and Opportunity for Families” focuses on school choice, while “Ending Radical Indoctrination in K–12 Schooling” covers conservatives’ culture wars around race and gender. On Thursday, Linda McMahon’s confirmation hearing in the Senate begins. Here’s what we’re looking for as we try to understand how these two orders might be implemented in a future McMahon Department of Education.
The orders are jammed with red meat for conservatives: threats to diversity, equity, and inclusion programs; attacks on transgender kids; efforts to mandate a national “patriotic” history curriculum; and a generalized push to defund public schools. “Ending Radical Indoctrination” opens by warping common educational terms through a conservative looking glass. Many of the ideas in here are familiar from the past few years of school-related culture wars. For instance, programs that focus on redressing persistent biases against kids of color are, in this document, part of “discriminatory equity ideology.” This probably includes things like Black History Month, which faces an uncertain future in schools, given the stated goals of Trump’s administration. It also likely includes civics lessons that are insufficiently “patriotic” in their retelling of American history. And the order accuses schools who let trans kids use the bathrooms where they feel safest of promoting “gender ideology.”
“Ending Radical Indoctrination” requires the secretary of education to produce a plan for defunding any school, district, or state advancing these “ideologies.” Under this order, schools that are trying to become fairer or more welcoming to children of color and/or transgender kids could lose funding. Similarly, “Expanding Educational Freedom” directs the secretary to come up with ideas for how to repurpose existing federal K–12 funding for “educational choice initiatives.”
Sounds pretty direct, and pretty bad, to the many people nationwide who are invested in the goal of fairer, better public schools. And yet, at the end of both orders, there’s a provision that makes things considerably less clear. It reads, “Nothing in this order shall be construed to impair or otherwise affect … the authority granted by law to an executive department or agency.” In plain terms, this is the White House acknowledging—or at least pretending to acknowledge—that the department’s existing funding is spoken for. Those dollars are bound by legislative limits.
Congress passed laws creating the DOE and its different programs. It appropriated public funds to support those programs for specific, legislatively delineated purposes. No matter how much Donald Trump—or his secretary of education—wants to mandate the history curriculum for public schools in Evanston, Illinois, he can’t just repurpose existing federal K–12 funding to do it. No matter how badly Trump and McMahon want to convert $18 billion in federal Title I funds into a school voucher scheme, they legally can’t: Those funds are dedicated to supporting public schools serving large numbers of low-income families. The same, by the way, goes for impending efforts to close the department by executive fiat. They may have promised to do it, and they may want very badly to do it, but these deep yearnings don’t make it legal to do so without the passage of legislation.
Basically, the core tension in Trump’s K–12 education proposals is similar to the core tension in his administration’s broader approach to governance. The White House wants things, but it doesn’t have the power or the authority to actually get them in the ways or at the pace that it’d like. On the one hand, these two executive orders tell the secretary of education to steal funding from various current programs and use it for conservative priorities that are way outside those programs’ designated purposes. On the other, the orders explicitly promise not to do anything outside the law.
In theory, this leaves the orders almost meaningless; they direct the secretary to find ways to misuse public K–12 funds for right-wing ends. When people talk about guardrails, about the checks and balances of the American government, these legislative limits are precisely what they mean.
But in practice, it’s hard to know how this will shake out. Members of the Senate’s Health, Education, Labor, and Pensions Committee will assuredly be curious, during McMahon’s hearing, to get clarification on the tension in these orders. Does McMahon believe that Cabinet secretaries can ignore Congress’ instructions for how federal money can be spent? Republican Sen. Susan Collins, of Maine, is a member of the HELP committee, but she’s also the chair of the Appropriations Committee, which leads in determining how much money Congress will dedicate to any particular program. Collins has long been interested in education policy—including the needs of children with disabilities. She might be uniquely interested in securing promises from McMahon that the DOE won’t try to divert federal special education dollars into some new school voucher scheme invented through these executive orders.
Collins would be well within her rights to ask, since all evidence suggests that Trump and McMahon will push right through these guardrails. And then either we’ll see Congress force the Department of Education to follow the law in how it spends money (perhaps with support from the judicial system) or we’ll see that we no longer have any institutional checks limiting the executive branch’s authority.
Hilariously, predictably, these orders reflect another sadly familiar case of stunning conservative hypocrisy. In 2009, as part of its recession recovery package, Congress gave Arne Duncan, Obama’s secretary of education, $4.35 billion to run a competition—known as Race to the Top—in which states could overhaul policies, like their academic standards or teacher-evaluation systems, to try to win additional federal funding. Conservatives soon framed this as power-mad federal overreach, accusing Duncan of overstepping his bounds and intervening in state and local K–12 education decisionmaking. Republican Tennessee Sen. Lamar Alexander, himself a former secretary of education, leaned into the criticism, saying that Duncan was using the funding to establish a “national school board.”
Congress gave Duncan wide legal latitude to set priorities for how to spend those specific funds, and he used it. But by the time Congress replaced No Child Left Behind with 2015’s Every Student Succeeds Act, conservatives built their criticism into the new bill with a host of proscriptions blocking secretaries of education from pressuring states to change academic standards. These added to Congress’ long history of placing limits on the federal DOE.
Unsurprisingly, in that bill, Congress did not give any education secretary more latitude to mandate the sorts of things that the Trump administration has demanded in these executive orders. The department doesn’t have the legal authority to require “patriotic education” in any school, school district, or state—especially if the secretary invents that mandate through leverage by threatening to withhold unrelated federal education funding. Legally, it can’t decide that a school’s Hispanic Heritage Month celebrations are too equity-minded and merit funding penalties. It will be interesting to hear if conservatives are as incensed at lawless mandates from McMahon’s Department of Education as they were at Duncan’s legal priority-setting.
Perhaps this seems quaint to point out in our present chaos, as Trump and Elon Musk’s DOGE initiative are consistently steamrolling Congress anyway—and as the administration suggests that it may defy court rulings demanding that it stop. Indeed, Musk has already canceled nearly $1 billion in research grants from the DOE’s Institute of Education Sciences, with no measurable pushback from Congress. Put simply, if Musk can unilaterally gut the U.S. Agency for International Development, what is to stop him from doing the same to the Department of Education?
Sadly, the answer is the same in K–12 policy as it is in every other domain: We don’t yet know. Perhaps the Trump administration can just run roughshod over Congress and legal constraints on the president’s power. I wish I could say it’ll be fun finding out.
