President Trump’s battle to end the Department of Education is about to turn into a war as advocates prepare to defend the federal agency through litigation and civic action while he readies an executive order seeking its elimination.
“I expect that any actions to shutter the agency or to dismantle it will be challenged in the courts, and those challenges will prevail,” said Julie Margetta Morgan, a former deputy under secretary of Education during the Biden administration. “I think the other thing to think about here is that the decision to dismantle the Department of Education is incredibly unpopular, and people need to continue to voice their concerns about that and their displeasure with the Trump administration’s efforts and to hold policymakers accountable.”
The anticipated executive order has been in the works for months, and was reportedly set to be signed this week before an unexplained delay.
“We’re starting the process,” Trump told reporters after one asked why the order was not signed on Thursday as the media initially reported it would be.
Trump has long called for the death of the department, telling Linda McMahon, his new Education secretary, he wants her to put herself out of a job. Eliminating the agency completely would require an act of Congress, but the president has said he’d like to do what he can via executive order.
“The Department of Education is not working as intended. Since its establishment in 1980, taxpayers have entrusted the department with over $1 trillion, yet student outcomes have consistently languished,” McMahon said in a note to staffers after her confirmation.
“Our job is to respect the will of the American people and the President they elected, who has tasked us with accomplishing the elimination of bureaucratic bloat here at the Department of Education — a momentous final mission — quickly and responsibly,” she added.
The lengthy process has given the department’s defenders — who point to an All4Ed poll showing 58 percent of voters oppose its collapse — time to plan. Their first step would be lawsuits, with groups waiting in the wings to go to the courts.
Johnathan Smith, chief of staff and general counsel for National Center for Youth Law, said his group is “committed to using all the tools at our disposal, including litigation here, to respond.”
The Department of Education is already facing multiple lawsuits over its actions to cut millions of dollars in federal contracts, part of Trump’s sweeping efforts to reduce the size of the federal government.
It is unclear what the legal challenges will specifically look like until the ink is dry on his order. The delay in signing it could point to internal White House discussions on precise language, including efforts to help the measure survive in the courts.
But some experts don’t think it will regardless.
“The first step will be filing lawsuits to get temporary injunction, temporary restraining orders, against this executive order by the Trump administration. And I have no doubt that — again, it depends on what is signed — but I have no doubt that we’ll have some success, as we’ve been having in the courts in pushing back on these reckless executive orders by the Trump administration,” said Todd Wolfson, president of the American Association of University Professors.
McMahon has repeatedly acknowledged the only way to completely abolish the department is through legislation.
In her confirmation hearing, she pledged multiple times to carry out the duties that Congress has mandated from the agency, but made clear that those not put into law are a different story.
There are certain programs and grants the department runs that were created by other administrations and which its conservative critics say should be abolished or moved to other agencies.
Full abolition of Department of Education is unlikely, as legislation to do so would have to clear the Senate’s 60-vote filibuster threshold.
While Republican lawmakers in both chambers have introduced bills to get rid of the department, others have put forward legislation to protect it, including Rep. Jahana Hayes (D-Conn.), a member of the House Education and the Workforce Committee, with her Department of Education Protection Act.
“This bill is just a reminder that only Congress can dismantle the agency, but also to protect the funds that we’ve already voted to go towards the Department of Education, so that they can’t be rerouted or redirected to somewhere else,” Hayes, who worked as a history teacher for 15 years, told The Hill.
“I mean, this isn’t new for me. It’s something that I’m worried about and cared about my entire time in Congress, but the threat of those things happening, it’s even more real,” she added.
Liz King, the senior director of The Leadership Conference on Civil and Human Rights’ Education Equity program, is urging voters to call their lawmakers, encourage school boards to stand up and reach out to the McMahon and the president to fight against this move.
“We are asking folks to send letters, to send emails, to make phone calls, to come together in rallies, and use all of the tools that we have available as the American public to push back on this awful agenda and make abundantly clear that we will not let the President run roughshod over our core American values,” said King.
