Feb. 25 (UPI) — Changes are coming to the Department of Education under the Trump administration and whether it closes or is significantly downsized, its role in defending civil rights for students could be weakened.
Critics of the department argue that the emergence of so-called school choice programs give families more options to ensure their children get the most out of the education system. Advocates for public schools note that these programs, which largely direct funds to private schools, directly harm the public school systems that a vast majority of children attend.
Roles of the Department of Education
The department has picked up a number of functions since its inception. The original department, called the Office of Education, began under President Andrew Jackson in 1867, with the purpose of tracking data about education in America.
It has since become an agency that supports K-12 and institutions of higher education with federal funding. It oversees and awards student loans and Pell Grants, funds education research and enforces federal standards in the country’s education systems.
One of the department’s main functions is to protect children from discrimination in the United States’ school systems. Without its enforcement of disabilities protections, access to education is at risk.
Its role in civil rights and disabilities act enforcement involves investigating complaints, enforcing corrective action and researching potential systemic problems in education.
Prior to the passage of the Individuals with Disabilities Education Act in 1975, students with disabilities were routinely denied educational opportunities.
Private schools are not federally required to recognize such protections but some states require them to provide special education services at no additional cost to parents.
“They can choose to not follow civil rights laws,” Sasha Pudelski, co-chair of the National Coalition for Public Education, told UPI. “They can also discriminate in less obvious ways. Perhaps English isn’t your first language. They can say ‘You’re not reading on a grade level, you’re not a good choice.’ Certainly students with disabilities have been discriminated against in most voucher programs.”
Ending or hamstringing the department
The Department of Education became a cabinet-level agency in 1979 when Congress passed the Department of Education Organization Act. Because it was created by congressional statute, an act of Congress is required to eliminate it.
Republicans have narrow majorities in the U.S. House and Senate. Passing legislation to end the department requires approval from a simple majority in the House. Due to the filibuster in the Senate, such legislation needs 60 votes to end debate and bring it to a vote. Republicans hold 53 seats.
“Congress created the Department of Education, and only Congress has the power to end it. And the vast majority of Congress — including 60 House Republicans — rejected gutting public education last session, knowing it would only hurt students and is deeply unpopular with parents and educators,” Becky Pringle, president of the National Education Association, said in a statement to UPI.
“90% of American students and 95% of students with disabilities learn in our public schools. Eliminating the Department of Education is equivalent to giving up on our future.”
About 11% of public school funding comes from the department, according to the National Center for Education Statistics. In the 2023-2024 school year, this equaled about $954 billion.
Sherman Dorn, professor in Arizona State University’s division for advancing education policy, practice and leadership, told UPI Republicans are unlikely to solidify 60 votes to end the department and ending the filibuster has been a nonstarter. Instead, there are other ways President Donald Trump can seek to effectively minimize the Department of Education.
First, according to Dorn, Trump and his secretary of education can diminish department programs. This would involve canceling government contracts for programs like the Institution of Educational Science’s research programs. Several of these programs lead research into improving education, including special education.
Second, the department’s position as a civil rights office can be diminished. Investigating civil rights complaints in education has been one of the main functions of the department since it became a cabinet agency.
Education is a civil right, Liz King, senior director of the education and equity program at the Leadership Conference on Civil and Human Rights Education Fund, told UPI.
The shift away from protecting those rights has already begun. The Trump administration has: suspended thousands of investigations into civil rights complaints in school, called for gender identity to be ignored and demanded that a “patriotic education” be taught.
“What we’re seeing here is an agenda that is going to run headfirst into mass school closure,” King said. “There is no way to fill the void. There is no substitute for the Department of Education. There is no backup plan.”
Legal action
Ultimately the administration has several ways of rendering the Department of Education ineffective short of shuttering it completely, according to Dorn.
“The other thing might be simply refusing to defend laws and being passive,” Dorn said.
Republicans at the state level offer the first major test on how Trump’s Department of Education will respond to legal challenges. Seventeen Republican attorneys general, led by Texas’ Ken Paxton, filed a lawsuit against the department in September over section 504 of the Rehabilitation Act and Americans with Disabilities Act.
Section 504 prohibits schools from excluding people with disabilities from participating in their programs, denying them benefits and subjecting them to discrimination.
The initial argument by the attorneys general is that the Biden administration erred by granting disability protections to children with gender dysphoria under section 504. The lawsuit goes a step further though, requesting permanent relief from enforcing section 504 as a whole and declaring it unconstitutional.
The lawsuit by attorneys general and executive actions from Trump are part of a larger, longstanding Republican agenda to abolish the Department of Education.
“What we’re seeing here is an agenda that is going to run head first into mass school closures,” King said. “This agenda to promote private school vouchers and limit resources for public schools that 95% of American families rely on is a longstanding agenda. Every other president from both major parties has understood the vital role the Department of Education plays.”
School choice
As the Trump administration seeks to axe the Department of Education, it is also endorsing the expansion of school choice programs as an alternative to the public school system.
There are a few different iterations of so-called school choice programs including voucher programs, tuition tax credits and education savings accounts. These programs direct taxpayer funds to families to be used for — often private — education.
Trump has also endorsed school choice initiatives. His executive order, “Expanding Educational Freedom and Opportunity for Families,” orders the Department of Education to offer guidance on how states can use federal funding to support school choice programs.
The Educational Choice for Children Act, reintroduced by Republicans in the House and Senate on Jan. 29, proposes a national school voucher program.
Robert Enlow is the president and CEO of EdChoice. The foundation advocates for school choice policies. He told UPI giving parents the most access to dollars to send their children to the school of their choice is in the public’s interest. He adds that school choice is important for “leveling the playing field” for parents to give their children the opportunity to attend a school that works for them.
“As a parent of someone who has special needs, not every school type works,” he said. “The fastest growing choice programs in the beginning were special needs voucher programs.”
Enlow said he believes public schools still have a role in the educational landscape and he is not wholly opposed to the Department of Education carrying on some of its duties. Protecting vulnerable children — specifically children with disabilities — and collecting data on the state of education are two functions he would like to see the department continue exercising.
But Enlow agrees with the Trump administration’s bottom-line concept that the department is overgrown and inefficient. He said some of the department’s roles, such as civil rights enforcement, would be more appropriate for other agencies to oversee.
“Whatever this administration does, whether it downsizes or dismantles, will be a positive benefit to parents at the state level whether they attend a charter or they attend choice programs in their state or take the opportunity to attend other public schools” Enlow said.
Arizona and Florida’s education savings account programs started as special needs scholarship programs, Enlow adds.
“There’s a significant chunk of parents that think the current system doesn’t work for them,” he said. “We are not doing a good job with our special education kids. Especially with traditional schools.”
Pudelski said families who opt for programs like school vouchers are surrendering IDEA protections. Some states, such as Mississippi, require parents to sign a waiver acknowledging that the school district is not obligated to provide specialized resources for students with disabilities.
“It presents a very false choice for them,” Pudelski told UPI. “They’re not going to be able in many cases to receive the same services as in the public school setting.”
School funding
The primary criticism of statewide school-choice programs is that they direct taxpayer funding to private schools. Several state programs, such as those in Iowa and Florida, do not have income requirements for receiving benefits. This means that wealthy families that would already enroll in private schools have their education subsidized, according to King.
About 90% of participants in New Hampshire’s Education Freedom Account program were already enrolled in private schools, according to the state’s Department of Education. In Arizona, 80% of voucher recipients had no history of attending public schools, according to the Arizona Department of Education.
Enlow argues that educating children is a public benefit regardless of what school they attend.
“Is a child educated in a private school educated in the public’s interest? Sure,” he said. “Is a billionaire’s child educated in a public school for free or for $15,000 in the public’s interest? Is that same billionaire getting $5,000 to go to a private school better or worse in the public interest? The question is, are families getting the most access to dollars to go where they want better than going to one type of school?”
Voucher programs are rooted in the educational landscape post-segregation, directing funding to be used in private schools that can deny admission to students however they choose. As Trump’s pick to lead the Department of Education — Linda McMahon — acknowledged in her Senate panel hearing, private schools can deny admission to any child.
Brown vs. the Board of Education ruled in 1954 that racial segregation in public schools is unconstitutional.
The “White flight” across the South in the two decades post-Brown is marked with parents enrolling students in predominantly white private schools, according to a report from the Harvard Civil Rights Project.
In the 2002 Zelman vs. Simmons-Harris decision, the U.S. Supreme Court ruled that state voucher programs must meet five points of criteria to direct public funds — tax dollars — to private school enrollment. The programs must have a valid secular purpose, funding must go to parents and not directly to a private school, a broad class of people must benefit, the program must be neutral on religion and there must be an adequate number of nonreligious options.
The impact of various voucher programs, tax credit scholarships and ESAs on public schools is a point of contention between school choice proponents and public education advocates.
Enlow said public schools have been closing long before states adopted school choice programs.
A study published by the Southern Poverty Law Center and Education Law Center suggests that school choice programs have had a significant effect on public school funding, directing a disproportionate amount of resources to the smaller pool of private school students. White children are also disproportionately represented in private schools when compared to students of color.
When Georgia adopted two state voucher programs in 2007 and 2008, about 21,000 of the state’s 1.8 million students benefited from school vouchers. This cost the state about $11.1 million. By fiscal year 2019, that cost ballooned to more than $109.1 million, an increase of about 25% annually.
Meanwhile, per-pupil funding in public education decreased over the same 10 years, despite Georgia’s annual growth rate and gross domestic product increasing.
The same is true in Florida, where funding for its voucher programs increased from $241.2 million in fiscal year 2008 to $996.2 million in 2019. There were about 151,000 students served under these programs.
Florida’s funding per pupil in public schools decreased by 12% during this time period.