President Trump has signed 68 executive orders (EOs) since he took office on Jan. 20 – with more EOs on his first day than all other presidents combined. Along with these orders came billions of dollars in cuts to federal programs and the firing of thousands of federal employees.
Equally as swift, though, have been the legal challenges to Trump’s orders, with at least 75 lawsuits currently being heard in federal court. So far, two lawsuits are specific to the U.S. Department of Education (the Department), taking aim at improper access to student information through its data systems. Still, it may be only a matter of time before legal challenges related to slashing contracts, controlling local actions through federal funding, and firing workers are on the Department’s doorstep, too.
In the last three weeks, in response to Trump’s executive orders, the Department has canceled more than 100 contracts and dozens of grants, totaling over $1 billion. The Department has also placed dozens of staff on indefinite administrative leave and fired employees on probationary status. Experts and advocates have raised alarms at both the practical and legal ramifications of these actions.
In response to similar actions at agencies across the government, labor unions, states, and private counsel have filed dozens of lawsuits and complaints. Some of these legal challenges have already seen success, resulting in temporary restraining orders, signaling that the claims against the Trump administration were likely to be successful. The final decisions of these lawsuits may have implications for the Department, and additional lawsuits may be brought against the Department itself. In addition to the two lawsuits already filed regarding student data privacy, here are four of the strongest arguments against the actions taken by the Trump administration and the Department of Education.
1. Slashing Education Research Contracts Could Violate ESRA And The APA
One of the first places where the Department made drastic cuts was at the Institute for Education Sciences (IES). These canceled contracts could be challenged for violating several laws, including the Education Sciences Reform Act and the Administrative Procedures Act (APA).
IES is an independent research institute within the Department. Congress appropriates funds annually to IES and its four centers. In its authorization of IES, Congress listed several key requirements of the Institute, including:
- The Institute, “directly or through grants, contracts, or cooperative agreements, shall” conduct its research activities, disseminate findings, promote the use and application of knowledge gained from the research, and more.
- IES must submit an annual report to Congress about the effectiveness of IES in carrying out its mission, as well as a report on the condition of education in the United States.
IES is required to support at least eight R&D centers on specified topics through the National Center for Education Research and 10 regional educational laboratories (RELs) under the National Center for Education Evaluation, maintain the Education Resources Information Center (ERIC) Clearinghouse, and more.
In the last three weeks, in response to Trump’s executive orders, the Department has canceled more than 100 contracts and dozens of grants, totaling over $1 billion. The Department has also placed dozens of staff on indefinite administrative leave and fired employees on probationary status. Experts and advocates have raised alarms at both the practical and legal ramifications of these actions.
On Feb. 10, the Department canceled 89 contracts worth an estimated $881 million (a number that has since been questioned). Then, on Feb. 12, it was reported that the 10 REL contracts totaling $336 million were canceled. While government contracts usually contain provisions that allow them to be canceled “for convenience,” there may still be room for legal challenges to some of these cancellations, particularly for those contracts supporting Congressionally-required activities.
Cancellation of these and other contracts may prevent IES from carrying out its required duties thus violating the Education Sciences Reform Act (ESRA), which established IES. Similarly, it could lead to violations of other laws, particularly where other federal education programs require the involvement of IES. For example:
- One of the canceled contracts was supporting IES in completing its Congressionally mandated evaluation of career and technical education (CTE) under the Perkins Act.
- One of the canceled contracts was supporting IES in completing an evaluation of the implementation of the Individuals with Disabilities Education Act (IDEA), required by Section 664(b) of IDEA.
Other contracts were to support the evaluation of Education Innovation and Research grants. To obtain grant funds under this program, grantees must produce their own evaluation of their program. However, IES provides those grantees support and technical assistance, using Abt (a contractor) as a resource to provide feedback and technical assistance on grantee evaluation plans. Without this contract in place, the grantees may not be able to meet the requirements of the grant.
Cancellation of these and other contracts may prevent IES from carrying out its required duties thus violating the Education Sciences Reform Act. Similarly, it could lead to violations of other laws, particularly where other federal education programs require the involvement of IES.
DOGE has indicated it would re-bid contracts that are related to Congressionally mandated activities. However, it can take up to a year (during which IES would remain out of compliance with the law) to develop the Notice Inviting Applications or receive bids on the work and then engage in the proper peer-review process. As required by law and to remain free from political influence or partisanship, IES makes grants through a peer-review process and enters into cooperative agreements or contracts. Those grants and contracts are also reviewed and approved by the National Board for Education Sciences and are in furtherance of IES’s approved priorities. Thus, a robust system is already in place to ensure that the appropriate entities overseeing IES are involved in decision-making. Arbitrarily cutting grants, contracts, or cooperative agreements at the whim of a new administration could be deemed to be a violation of the APA.
Massachusetts has filed a lawsuit based on similar grounds in response to the Trump administration’s cuts to contracts held by the National Institutes of Health (NIH). The lawsuit alleges the cuts are a violation of the APA, and a federal judge has ordered a temporary restraining order, preventing those cuts for now.
2. Attempts to Eliminate Diversity, Equity, And Inclusion Efforts Could Violate The Constitution
In addition to finding cost savings within the government, an area of particular interest of the Trump administration is eliminating any efforts to support diversity, equity, and inclusion. On his first day in office, President Trump issued an executive order calling on federal agencies to terminate “all discriminatory programs, including illegal DEI and ‘diversity, equity, inclusion, and accessibility’ mandates, policies, programs, preferences, and activities.” The EO on DEI has been challenged in court as unconstitutionally vague under the Fifth Amendment and a violation of the First Amendment’s free speech clause.
On Feb. 17, the Department announced what appears to be the first round of cuts related to this EO: the elimination of more than $600M in teacher training grants. Though the full list of grants has not been released publicly, grants such as the Supporting Effective Educator Development (SEED) Grant Program, the Teacher Quality Partnership Program, and the Teacher and School Leader Incentive Program appear to have been included in this cut. Some grantees in these programs were working to support teachers and school leaders of color where they are underrepresented in public schools. As the Department continues to review the list of programs that support DEI, additional grants will likely be cut. Therefore, the results of the existing legal actions related to this EO will determine whether the elimination of these grants should be challenged.
The federal Department of Education is legally barred from making decisions about curriculum in schools. The Constitution reserves the power to govern education for the states. Further, the Department of Education Organization Act prevents the Secretary of Education or other Department employees from exercising control over curriculum and instruction.
3. Preventing “Indoctrination in Schools” Could Violate ESEA And Infringe Local Control
As a follow-up to the EO on DEI, President Trump issued an EO on Ending Radical Indoctrination in K-12 Schooling, which requires the Department and other agencies to provide a strategy that includes both a list of funding streams that “support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology” and a plan to rescind those funds and prevent such discrimination and indoctrination. It is unclear whether this would prevent things such as training for educators focused on the needs of particular groups of students; student affinity groups based on race or ethnicity; African American history courses, or more.
Importantly, the federal Department of Education is legally barred from making decisions about curriculum in schools. The Constitution reserves the power to govern education for the states. Further, the Department of Education Organization Act prevents the Secretary of Education or other Department employees from exercising control over curriculum and instruction. This prohibition is also repeated throughout federal education law, including the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (20 U.S.C. 7906a and 7907). The Department has not yet taken action to end programs or funding related to this EO. However, if it were to act on this EO by restricting the use of federal funds and attaching requirements that those funds cannot be used to teach certain content or support specific programming, the Department would violate the Constitution and federal law.
4. Firings Without Reasonable Cause Could Violate Federal Employee Rights
In response to the EO on eliminating DEI, not only did federal agencies shut down programs and place staff who work in DEI offices on leave, but the Department went as far as to place on administrative leave any employee who previously participated in a diversity training program and some employees who participated in employee-led affinity groups. The training program in question was active during the first Trump administration and even supported by then-Secretary DeVos. The training was sanctioned by the Department of Education and available for staff to participate in at their discretion. Staff who participated were not necessarily in roles that related to DEI. Thus, while the Trump Administration may have the authority to end DEI training or discontinue programs related to DEI, employees should not be disciplined or terminated for actions that were previously allowed, sanctioned, and even encouraged by the Department leadership, before the EO was signed.
More recently, President Trump has issued an EO on implementing his “workforce optimization initiative,” and almost immediately, federal agencies began terminating employees who were still in their probationary period. Across the Department, as many as 160 employees are still in their probationary period, which lasts for one year after being hired. In the last week, several probationary employees received notice that they were being terminated for underperformance, despite a lack of evidence indicating underperformance. Similar accounts have been shared by federal employees across the government. If it is discovered that all probationary workers were dismissed regardless of performance, there would be a legal basis to challenge the firings. Even though it is easier to fire someone during the probationary period, it must be done based on their performance, and not solely on their status as probationary.
A large number of the Department staff are part of a bargaining unit responsible for coming to contractual agreements with the Department on a variety of terms of employment, including telework and remote status, pay, benefits, and working hours. Making changes to the terms of employment for a bargaining unit member and/or terminating a bargaining unit employee may be a breach of the contract and therefore illegal.
A large number of the Department staff are part of a bargaining unit responsible for coming to contractual agreements with the Department on a variety of terms of employment, including telework and remote status, pay, benefits, and working hours. Making changes to the terms of employment for a bargaining unit member and/or terminating a bargaining unit employee may be a breach of the contract and therefore illegal. Unions representing federal employees have taken steps to challenge terminations and the stripping of worker protections across the government. A class-wide complaint was recently filed with the Office of Special Counsel on behalf of federal workers fired across nine agencies.
The Future of the Department of Education
Of course, it’s widely acknowledged that every new administration has the ability and right to steer federal agencies toward new priorities and to implement its agenda. It’s customary to review existing programs and change course going forward. It’s even possible to cancel contracts, and end grants – within reason. But there is an administrative process that must be followed and rules to respect. Slashing contracts and canceling grants arbitrarily and without transparency, coupled with the termination of employees without cause amounts to recklessness and inefficiency. That’s a far cry from the promises the Trump administration has made to make the federal government more efficient and effective.
The checks and balances of the federal government are being tested, and it’s now up to the judicial branch to enforce the rule of law.
Meghan Whittaker
Former Chief of Staff, U.S. Department of Education