On March 11, the federal administration announced they were going to fire 50% of the workforce in the Department of Education leading to a total shut down of the department. On March 13, Arizona Attorney General Kris Mayes and 20 other attorneys general filed a lawsuit to stop them. Joining Attorney General Mayes in filing the lawsuit are the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Washington, Wisconsin, Vermont, and the District of Columbia.
Our State superintendent of Public Instruction, who has failed in every job he has held like the alleged president, claims he could take over all the responsibilities the federal government does which is laughably ludicrous when he can’t even keep track of the voucher money.
The idea, like every other action taken by DOGE, is to privatize education so big corporations can rake in government dollars in private schools. On April 26, Texas passed a school voucher bill like Arizona’s that lets every family apply for taxpayer money for their child to go to private and religious schools. It is estimated to suck $1 billion from the state coffers. Of course they say it’s to help families with disabilities and low-income, but we know that lie better than most.
The 53-page complaint outlines what the department does, what harm cutting its staff in half would do, and that it is unconstitutional because the department is authorized by Congress and the administration cannot just unilaterally end an agency created and funded by Congress.
What the Department Does
Congress established the Department of Education, and many of its offices, by statute in 1979 with the Department of Education Organization Act. While the primary responsibility for education remains in the states, the department “has primary responsibility for administering federal elementary, secondary, and postsecondary education programs.” set up by the federalgovernment. See Rebecca R. Skinner et al., A Summary of Federal Education Laws Administered by the U.S. Department of Education, Cong. Rsch. Serv. (Dec. 12, 2024) (hereinafter, “the Skinner Report”).
Other laws were passed before and after to address specific educational issues:
- The Elementary and Secondary Education Act (ESEA) passed in 1965 and amended by Every Student Succeeds in 2015 gives grants to local schools.
- The Individuals with Disabilities Education Act (IDEA) passed in 1975 and reauthorized in 2004 gives grants for special education for children with disabilities from birth to 21.
- The Higher Education Act of 1965 (HEA) of 1965 and reauthorized in 2008 helps in postsecondary expenses like the Pell Grant, direct loan, and work-study programs. I used work-study my first two years in college.
- The Rehabilitation Act of 1973 supports vocational education and supports people with disabilities. In law school, I worked at the Center for Public Representation on §504 of the Rehab Act.
- It enforces Civil Rights Laws. These include Title VI, Title IX, section 504 of the Rehabilitation Act, Age Discrimination Act, and Title II of the Americans With Disabilities Act. On December 3, 2024 the Office of Civil Rights put Lake Havasu City school district under court order to remedy their racial discrimination stemming from a case I worked on with the State NAACP starting in 2022.
- Privacy Rights Laws. The Department also enforces laws that protect student privacy rights.
The Department’s elementary and secondary programs annually serve nearly 18,200 school districts and over 50 million students attending roughly 98,000 public schools and 32,000 private schools, while the Department’s higher education programs provide services and support to more than 12 million postsecondary students. Somehow our state superintendent thinks he can do all this. He isn’t even addressing the overrepresentation of children of color in the disciplinary system in Arizona. It’s obvious from this as well as the barrage of executive orders and actions from the White House that the staff and lawyers have no idea how government works, they don’t even understand the law and are completely incompetent for which I suppose we should be thankful, or they would be more successful.
In federal fiscal year 2024, the Department directed 25.4% of its total spending to states and local governments. The federal government provides 13.6% of the funding for public K–12 education. Yet it is one of the smallest federal agencies so there is not going to be any great savings here as there has not been in any of the DOGE actions. But it will dramatically harm the states, especially the poorest ones, and harm children of color, the poor, and those with disabilities. This is really punching down as bullies like to do.
What do those school do with that money? They support special education, buy assistive devices, hire specialists and provide necessary therapy, and provide transportation especially important in rural areas. They also provide disaster relief and early education. The administration thinks these people should be punished to give tax breaks to the rich who don’t need them. But then this administration is deporting 2-year-old citizens and 10-year-olds with cancer without their medication. Barbarism knows no lower limit.
In addition to these direct benefits, the department gathers data, identifies best practices in pedagogy, and disseminates that research to educators and others. The Department also operates national centers that provide technical assistance to educators, parents, students, policymakers, and the general public on a range of topics aimed at improving academicachievement for all children and ensuring the effectiveness of educational programs. But then this administration does not want an educated public because they are harder to control.
OCR specifically, of which seven offices have been closed completely, protects LGBT and mandates collection and publication of sexual harassment and rape data. In FY 2024, OCR reviewed the highest volume of complaints ever, totaling 22,687 complaints. U.S. Department of Education Office for Civil Rights, 2024 Fiscal Year Annual Report(2024), available at https://www.ed.gov/media/document/ocr-report-president-and-secretary-of-education-2024-109012.pdf. That number represented an 18% increase over a previous record high in FY 2023 of 19,201 complaints. Id. As complaints go up, the way to stop that is to shut down the office. You can’t count what you don’t collect.
The student loan program cuts are also targeted to harm the poor and students of color the most. The Department awards more than $120 billion a year in grants, work-study funds, and low-interest loans to approximately 13 million students. Most countries know that an investment in an educated populace is an investment in the countries future. Some countries have free education through graduate school like Hungary and Slovenia. Americans can even go there and get free education.
We have probably all heard about the FAFSA or application process that was a mess last year. Now that has been transferred to the Small Business Administration that has zero experience and whose staff was also cut 43%. Like in many other agencies, the deliberately eliminated the office that monitors wasteful or unnecessary spending. They also eliminated the ethics office but then this administration would not know an ethic if it hit them in the face.
The department is tasked by statute to collect and monitor national data to do enforcement and reporting e.g. on students’ drug and alcohol abuse and violence against women. Parents and students need to know this when choosing a college. No state alone can do this job.
The department is also responsible for vital aspects of higher education accreditation. But of course this president who was found guilty of running a scam college and handing out fake degrees, thinks he should determine educational programming and accreditation. In these “diploma mills” they are not only scamming the student who pays money and ends up with a worthless degree, they are also scamming the government if that student got any loan or work-study money. Scamming the government is the sole goal of this administration. They are and will rob us blind no doubt surpassing Duterte of the Philippines as the best government thief.
A little-known aspect of the Department of Education is The Impact Aid program, signed into law by President Harry Truman in 1950 (Pub. L. 815 and Pub. L. 874). In districts that have large areas of federal land, e.g. military bases, parks, federal low-rent housing facilities, and tribal communities, those lands are exempt from property tax and that creates funding shortages for neighboring school districts. Impact Aid funding partially reimburses school districts for this loss of locally derived revenue.
The intended cuts eliminated the Institute of Education Sciences. Science is above the head of this administration but is in the Constitution. The cuts eliminated the Office of Civil Rights. We know this administration does not believe in equality. The office of the General Counsel i.e. the attorney for schools has been eliminated and of course the Ethics office. All attorneys specializing in K–12 grants, IDEA grants, and equity grants have been terminated. Most attorneys focused on privacy issues are gone. Those who issue financial assistance were cut and we can’t help but notice that they have restarted collection of student loans. The cuts were not across the board, but targeted to eliminate those who would question the cuts and those recipients who were the most vulnerable and not able to fight back. It also shows who is favored. A plan was in place to monitor Missouri because of financial misbehavior. That was cut. Missouri is a red state. So the color of the thieves matters.
At the Pope’s funeral, it was noted that when Trump appeared, in a blue suit instead of black and bullied his way from the third row to the first, the crowd was silent. When Zelensky appeared, they cheered and clapped. It is clear Zelensky is the leader of the free world. Trump then proceeded to text during the funeral and then fall asleep unlike “sleepy Joe” who managed to stay awake the whole time.
These cuts would of course produce chaos and cause a loss of education for at least a generation if not more. Our education system does need attention. Globally the U.S. is 21 among 36 high income countries; 5th in reading; 10th in science, 8th in overall educational achievement, but 2nd in per-pupil spending. Like our medical system, we spend more and get less. But the chain saw approach with no new plan in sight is not the answer.
The Administration Cannot Destroy an Agency Set up by Congress.
An administration cannot override the statutory framework establishing the department. As the Supreme Court put it nearly a century ago, “[t]o Congress under its legislative power is given the establishment of offices [and] the determination of their functions and jurisdiction.” Myers v. United States, 272 U.S. 52, 129 (1926). Thus administrative agencies “are creatures of statute.” Nat’l Fed. of Indep. Bus. v. OSHA, 595 U.S. 109, 117 (2022). Only Congress may abolish an agency it created. For the administration to try is an unlawful violation of the separation of powers, and a violation of the Executive’s obligation to take care that the law be faithfully executed.
Under the statute, the Secretary of Education has some authority to restructure the Department of Education, she is expressly limited to “allocat[ing] or reallocat[ing] functions among the officers of the Department” or modifying “organizational entities within the Department as may be necessary or appropriate.” 20 U.S.C. § 3473(a). She is not permitted to eliminate or disrupt functions required by statute, nor can she transfer the Department’s responsibilities to another agency outside of its statutory authorization. Id.
It is a bedrock constitutional principle that the President cannot make law. Rather, they can only—and indeed, they must—implement the laws enacted by Congress, including those statutes that create federal agencies and dictate their duties. Article I, Section 1 of the United States Constitution says that: “[a]ll legislative Powers herein granted shall be vested in Congress.” U.S. Const. Art. I, § 1. The Executive can neither outright abolish an agency nor incapacitate it by cutting away the personnel required to implement the agency’s statutorily mandated duties.
The separation of powers created in the Constitution was deliberate. “The Framers viewed the legislative power as a special threat to individual liberty, so they divided that power to ensure that ‘differences of opinion’ and the ‘jarrings of parties’ would ‘promote deliberation and circumspection’ and ‘check excesses in the majority.’” Seila Law LLC v. CFPB, 591 U.S. 197, 223 (2020) (quoting The Federalist No. 70, at 475 (A. Hamilton) and No. 51, at 350). We certainly are short of deliberation, circumspection, and the checking of excess these days.
Only Congress can abolish executive agencies, and either redistribute their functions to existing or newly created agencies, or discontinue their functions. See, e.g., Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, §§ 471, 441, and 451(b) (abolishing Immigration and Naturalization Service and transferring its functions to the newly-created Department of Homeland Security); Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, Division G; 112 Stat. 2681 (abolishing several agencies and consolidating their functions within the Department of State, and creating USAID as an independent executive agency).
The only power the president has is in U.S. Const., art. II, § 1 and requires that the president “shall take Care that the Laws be faithfully executed.” U.S. Const., art. II, § 3. Nothing in Article II can be construed to authorize the Executive to dismantle a statutorily created agency directly or indirectly.
The Executive also has no authority to enact, amend, or repeal statutes. Clinton v. City of New York, 524 U.S. 417, 438 (1998). The Executive does not have, under the Constitution or otherwise, an undefined “inherent” power, even in “emergency” circumstances, to unilaterally decide to ignore statutes. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
CAUSES OF ACTION
So what were the legal grounds upon which the attorneys general sued? If you read my earlier blog about the freeze on funding, you’ll recognize many of the grounds. First was a violation of the Separation of Powers Doctrine. Article I, Section 1 of the United States Constitution says that: “[a]l legislative Powers herein granted shall be vested in . . . Congress.” U.S. Const. Art. I, Sec. 1.
The separation of powers doctrine thus represents a central tenet of our Constitution. See, e.g., Trump v. United States, 603 U.S. 593, 637–38 (2024); Seila Law LLC, 591 U.S. at 227. Incapacitating an agency created by Congress is not within his powers and the court has the obligation to stop it.
The second count is Violation of the Separation of Powers – Take Care Clause: The Take Care Clause provides that the executive must “take Care that the Laws be faithfully executed . . . .” U.S. Const. Art. II, Sec. 3; UARG v. EPA, 573 U.S. 302, 327 (2014) (“Under our system of government, Congress makes the laws and the President . . . faithfully executes them”. By issuing the directive, he has failed to take care to faithfully execute the laws enacted by Congress. The court must stop it and declare it unlawful.
The third cause is Ultra Vires – Conduct Outside the Scope of Statutory Authority Conferred on the Executive i.e. neither the President nor an agency can take any action that exceeds the scope of their constitutional and/or statutory authority.
The fourth cause is Violation of the Administrative Procedure Act – Contrary to Law. You’ve seen this repeatedly in the earlier cases. An agency must act within its own rules and its own jurisdiction.
The fifth cause is Violation of the Administrative Procedure Act –Arbitrary & Capricious and an Abuse of Discretion. You have seen this before too. There must be a rational explanation for the actions taken, the facts found, and the choices made. Part of that must include stating what is the problem and what is the reliance of others on the existing structure. None of that exists here.
The AGs have asked for a declaration that the directive is unlawful; that the actions taken are permanently stopped; to award fees and costs; and grant other relief as the court likes.
On March 24, the AGs filed for a preliminary injunction citing basically the same facts and legal reasons. They argue that they are likely to succeed on the merits because of the reasons given above and that the plaintiffs face irreparable harm. The harm includes financial aid, research, data, accreditation and compliance, and delays and uncertainly in setting budgets. The balance of the equities and the public interest must be considered in this kind of a request and they favor a preliminary injunction.
The AGs argue that the only reason given for the cuts was to destroy the Department all together which the administration cannot do. They eliminated the staff needed to do statutory functions and transferred management of student loans to the SBA. There is no one to do the monitoring and no one to transfer the money to the states. Not only are there delays but there is no one to identify errors or find fraud – allegedly a goal.
The cuts eliminated the education research functions, but the administration doesn’t need educational research because they already know what they want to install – religious theology of the evangelical right. None of that other stuff, research, data, accreditation, compliance etc., is needed because as Representative David Marshall said in the hearing on putting chaplains in school, god is a better therapist. Representative Chaplik said that what our schools need is more religion.
As the AGs point out, the results of these cuts cannot be fixed later. If a college needs approval to add a class, and they can’t get it, they won’t add the class. They might lose students to a competing school and those students won’t come back. They may need to give up the lease on the classroom and terminate the teacher. That teacher will get another job and won’t come back. People who don’t go to college because of lack of money will get jobs and may never go back to school. People with disabilities will deteriorate in their skills and never catch up. The damage is permanent.
The government is not harmed by granting an injunction – the people have an interest that the government follow the law and the government has no interest in maintaining an illegal practice. Therefore keeping the status quo is no harm to the administration.
No action has been taken on the case since March 24 (as of 4/29/25). In the case titled Somerville v. Trump, public school districts in MA and unions representing the employees sued over the reduction in force on the grounds of separation of powers and ultra vires as well as the APA, excess of authority, and action not in accordance with law. They asked for a preliminary and permanent injunction on April 1; the government filed a response opposing it on April 11; the plaintiffs filed their reply on April 18. No decision has been reported as of 4/29/25.
OTHER LAWSUITS AGAINST THE ATTEMPT TO DEFUND DOE
Several other cases about the attempts to destroy the Department of Education have also been filed. On April 10, 16 states including Arizona and Josh Shapiro, governor of PA, filed a lawsuit against an order that had been given to extend the time to expend the COVID-19 funding. The extension was given in late 2023 and 2024 after the pandemic was over. The money is to deal with the problems caused by the COVID lockdowns to make up for the educational loss. On March 28, 2025, the administration suddenly rescinded those time extensions and said the time was already over.
That would have caused massive funding gaps in already planned and operating programs. The only reason given was because COVID was over, but the extension had been given after COVID was over and the results of COVID are not over.
The AGs argued that the action violated the APA as arbitrary and capricious, give no rational explanation, ignores reliance, exceeds their authority, and misapplies the criteria. These arguments are similar to those in the defunding of the health grants written about earlier.
In Arizona, that money was being used for a school district on Arizona’s part of the Navajo Nation to do tutoring services to supplement students’ reading and math instruction, and to fund critical infrastructure repairs. Because of the letter, the school terminated the tutoring service and the infrastructure project. Because the school has not been reimbursed for funds already expended, it has used a majority of its limited reserve funds to cover outstanding costs and will likely need to lay off teachers and staff members as a result. Arizona had an extension of the time to liquidate its ESSER funds through February 28, 2026, for its local education agencies and March 28, 2026, for its state education agency. These are the real-world consequences of the administrations reckless and illegal acts.
The NAACP has also filed two lawsuits. The first was filed March 24 by the national office, the state conferences of South Carolina and Texas, several branches, several children impacted, the National Education Association (NEA), and AFSCME. They argued that the action interfered with the educational opportunity and quality in all fifty states and in hundreds of thousands of schools, colleges and universities. Rather than improving quality, it did just the opposite.
Between 1980—the year after the Department was formed—and 2020, high school graduation rates for Black students increased from 51% to 81%, reducing the graduation-rate gap between Black students and their white peers from 21% in 1980 to 9% in 2020. Likewise, high school graduation rates for Hispanic students rose from 45% to 83%, shrinking the graduation-rate gap with white students from 27% in 1980 to just 7% in 2020.
Similarly, in 1979, less than a third (31%) of American adults aged 25 and over had completed some postsecondary education. By 2022, that figure had doubled to almost two-thirds (62%). Significantly, the college attendance gap between white and Black Americans fell from 10 percentage points in 1980 to just 4 percentage points by 2020, while women moved from trailing men in four-year college completion rates by 7% to a rate three points higher.
The Department also dramatically expanded educational opportunities for students with disabilities through its implementation of the Individuals with Disabilities Education Act (“IDEA”). In 1970, U.S. schools educated only one in five children with a disability. In 1963, a new family moved into my small town. One day I went with the girl to her home a block from the high school. I was surprised to see her brother, of high school age, there in a wheelchair. I asked why he wasn’t coming to school. The mother looked at me like I was insane and said you can see why, he’s in a wheelchair.
I said, what does that have to do with it? You are a block from the school on a flat street. Roll him down. She just indicated I was an idiot and left the room. He had never gone to school.
By the 2022-23 school year, more than 8 million students ages 3 through 21 received special education and related services in public schools and over two-thirds now learn with their non-disabled peers for at least 80% of their school day.
The attack on people of color and the disabled is obvious. As of January 14, 2025, OCR was investigating approximately 12,000 complaints. Of these, nearly 6,000 alleged disability discrimination; an additional 3,200 alleged racialdiscrimination or harassment; and 1,000 alleged sexual harassment or sexual violence. Remember when Trump made fun of the reporter who had a disability? That should have disqualified him from any office ever again. But here we are. On a good note, Harvard has now added an empathy question on their application.
The causes of action in this suit are familiar i.e. the Take Care Clause, the violation of the APA, and ultra vires action. But the NAACP added a new violation: the Appropriations and Spending Clauses, U.S. Const. art. I, § 8, cl. 1; art. I, § 9, cl. 7 rt. I, § 9, cl. 7; U.S. Const. art. II, § 3 i.e. that the administration is spending tax money inappropriately. The tracker reports no action since.
CONCLUSION
Our attorney general, Kris Mayes, is doing her job. Send her some love – and stick a check in the envelope. Attorneys across the country are doing their job. Unfortunately, some judges are misbehaving. The Wisconsin Supreme Court has suspended Judge Hannah Dugan in Milwaukee after the FBI arrested her and charged her with two charges of obstructing ICE. I guess they forgot about the presumption of innocence and the oath they swore to protect the Constitution not the president. Please write to them and tell them what you think about that: Chief Justice Annette Kingsland Ziegler, Supreme Court of Wisconsin, PO Box 1688, 110 E Main Street, Suite 215, Madison, Wi 53701-1688. As an attorney from and educated in Wisconsin, I thank you.