For months on the campaign trail, President-elect Donald Trump pledged to take money from school districts that teach critical race theory, champion a version of American history he sees as unpatriotic, or promote supportive policies and instructional practices for transgender students.
In fact, Trump said he would sign an executive order on his very first day back in office to that effect.
“We are going to cut federal funding for any school pushing critical race theory, transgender insanity, and other inappropriate racial, sexual or political content onto the shoulders of our children,” Trump said at a July campaign event in Minnesota. “And I will keep men out of women’s sports.”
Now that Trump is headed back to the White House, can he follow through on that pledge? The answer has a lot more legal complexity than a stump speech.
GOP experts say the Trump team’s best weapon for fulfilling this culture war campaign promise may be an under-the-radar office at the heart of the agency the once and future president has pledged to dismantle: The U.S. Department of Education’s office for civil rights, which enforces laws barring discrimination on the basis of sex, race, religion, and disability status.
Education secretaries have the latitude to tell OCR which kinds of cases to prioritize, and they can develop guidance telling school districts how they plan to interpret civil rights and discrimination laws.
“Aggressive civil rights enforcement would go a long way to reducing the D-E-I-ification of school practice,” said Max Eden, a senior fellow at the American Enterprise Institute, a conservative think tank.
Civil rights advocates, however, say that federal law doesn’t give the Trump team the power to enforce its political preferences in the name of cracking down on discrimination.
Liz King, the senior program director for education equity at the Leadership Conference on Civil and Human Rights, a nonprofit advocacy coalition, doesn’t see how it’s possible to spin a district’s instruction of accurate history, a training to help teachers better understand students’ cultural differences, or efforts to help transgender students affirm their identity as violations of core civil rights laws. Quite the opposite.
“What we’ve seen repeatedly from every possible measure is that instructional strategies that build students’ critical thinking, that build their empathy, that build their respect and understanding for each other, that enable them to see themselves and their classmates reflected in the curriculum, those contribute to a positive and affirming classroom environment,” King said.
There are broad prohibitions on federal control of curriculum
What’s more, King noted, the main federal K-12 law, the Every Students Succeeds Act, spells out a litany of limitations on the education secretary’s authority—including express prohibitions on controlling what curriculum standards states, districts, and schools use. It also prevents federal officials from placing adoption of a certain curricula as a condition for a federal grant.
Much of that language was added at the behest of a Republican and one-time education secretary: Former Sen. Lamar Alexander of Tennessee. He served at the helm of the department under President George H.W. Bush and wanted to constrain its ability to act as, in his words, a “national school board.”
The law is “very intentional about limiting the discretion a secretary has to advance an agenda unrelated to the core requirements,” of the law, King said. “And so the concept of applying these bigoted, narrow-minded ignorance-promoting principles to existing ESSA funds is baseless. It is nonsense.”
Aggressive civil rights enforcement would go a long way to reducing the D-E-I-ification of school practice.
But Arne Duncan, who served as education secretary for seven years under President Barack Obama, doesn’t think wonky legalese will matter much to a chief executive who was found guilty of multiple felonies and was impeached twice by the House of Representatives—including for inciting a mob to disrupt the certification of President Joe Biden’s victory.
“They could trample those. They could run roughshod over those,” Duncan said of ESSA’s prohibitions. “There are literally zero schools in America teaching CRT right now. That’s not a thing. It’s not reality.
“But he doesn’t live in reality. He creates his own reality,” Duncan continued. “And so, they can take money from schools and say they are teaching critical race theory. They can just make it up and move it to a state where people support him politically.”
OCR investigations are often lengthy and complex
To be sure, using OCR to take money from one district and give it to another would require a dramatic upending of the agency’s past practices.
OCR doesn’t just yank money from school districts. Instead, the loss of federal funding is just one—very rare—possible conclusion of a lengthy, detailed process that typically unfolds over the course of years.
The office receives complaints from students, staff members, parents, or other community members alleging that a school or district has violated a key civil rights law—commonly Title VI of the Civil Rights Act, Title IX of the Education Amendments of 1972, and the Individuals with Disabilities Education Act (IDEA).
The department then investigates the claim and decides whether the school has indeed run afoul of the law. If so, the school or district could technically risk losing a portion of federal funding.
But school districts seldom see their money revoked. Instead, OCR works to help them comply with civil rights laws. To come into compliance, a district might implement what seems like relatively minor changes on a school district’s part, like fixing an elevator at an elementary school.
Or the agreement OCR and the district strike can call for wholesale transformation of teaching and learning for a large swath of students. For instance, in 2010, OCR concluded that instruction of English learners in the Los Angeles Unified School District was grossly inadequate, prompting a reimagining of district practice.
The Trump administration made known its views on transgender protections in 2017 when it rescinded Obama-era Title IX guidance directing schools to allow students to use restrooms and locker rooms that match their gender identity, respond quickly to harassment of transgender students, and more.
But it wasn’t until the end of his first term that Trump’s education team began to explore OCR investigations that jibed with its political goals.
In 2020, the education department started legal action against school districts in Connecticut that allowed students who were born male but identified as female to compete in girls’ track events.
It also initiated action against a Chicago-area school district that divided teachers into race-based “affinity groups” to have more open conversations during a professional development activity.
The Biden team did not move forward with those cases. Instead, it issued its own revision of Title IX, which expands the scope of the law’s prohibition on sex discrimination to also bar discrimination based on sexual orientation and gender identity.
That policy change—which the administration implemented first through guidance to school districts before formally issuing a new regulation—prompted OCR action of a very different sort during the Biden years.
For instance, a Wisconsin district that discriminated against a nonbinary student was ordered to offer grade adjustments and training to staff and students. A Georgia district that removed books about LGBTQ+ characters and racial minorities agreed to conduct a school climate survey and act on students’ responses.
In pursuing similar action—from the opposite perspective—the Trump team would simply be taking a page from their Democratic predecessor’s playbook, said David Cleary, who worked on education issues for Republicans on Capitol Hill for more than two decades.
In the past Republicans have tried to refrain from using OCR to “upset the applecart,” Cleary said. Now, “Republicans are learning to use the same powers that Democrats use when they are in power.”
Harnessing OCR for curricular purposes brings up lots of legal complexity
Candice Jackson, a lawyer who served in the Education Department during Trump’s first term, including as acting head of OCR, sees a lot of legal complexity in harnessing OCR—or taking steps to withhold federal funds—to discourage districts from adopting curricula or practices that go against Trump’s political views.
For instance, she suspects the agency would be on firm ground withholding grant money from a school district that teaches students that gender can be nonbinary or fluid, particularly without getting parent signoffs. In her view, that’s “just going against basic facts and reality.” (Advocates for transgender students vehemently dispute that contention.)
But Jackson is less certain about whether the department would be on solid footing taking action against DEI trainings that organize teachers into race-based affinity groups on a voluntary basis.
It might be even more difficult to hold school districts that are teaching a version of American history that includes its dark moments and their legacy—like the role of slavery in the nation’s founding, she said.
Investigators would have to ask, “is what being taught factual or not factual? That’s a hard question in the realm of, let’s say the role of racism in American history, right? It’s just a gray area,” Jackson said.
She wonders however, how the Supreme Court’s decision last year to strike down affirmative action at the higher-education level will affect cases in which, for instance, a school district funnels money to an academic-improvement program aimed at just one racial or ethnic group—say, Black males.
“If a school district is singling out groups of students by race to give certain benefits or preferences, we could absolutely fit that within a non-discrimination bucket and say, ‘no, no, we’re not doing that anymore,’” Jackson said. “We’re returning to a vision of non-discrimination and diversity and equal opportunity that doesn’t cross that line and start to discriminate in the name of non-discrimination.”
What’s more, simply the threat of an OCR investigation may change school district behavior, Cleary said.
“There’s the power of the bully pulpit,” he said. “You have to be awfully committed at the school district level to deal with investigations and oversight into an issue you can’t really well defend or define.”
But King of the Leadership Conference doesn’t think schools will be intimidated into changing practices that they see as beneficial for students.
“We expect educators will do what educators are called to do, which is to support the children in their care, to provide them the education that they deserve, and to enable them to reach their goals and improve their dreams,” King said.
