The Supreme Court has decided that Trump may go ahead and gut the Department of Education. Jan Resseger looks into the details. Reposted with permission.
On Tuesday morning, Diane Ravitch began her blog: “After the election, I confidently predicted that Trump would never be able to get rid of the U.S. Department of Education. To eliminate a Department required Congressional approval, and I was confident that Trump would never get that. He would need 60 votes, not 51, and he would never get them. There might even be Republicans voting to keep the Department. But I was wrong. Obviously. It didn’t occur to me that Trump would fire half the staff of the Department and dismantle it without seeking Congressional approval. Yesterday, the Supreme court ruled 6-3 that the President could continue to lay off the employees of the Department of Education, while leaving aside the legal question of his power to destroy a Department created by Congress 45 years ago… If the Supreme Court ever gets around to deciding whether Trump has the legal authority to abolish the Department of Education, it will already be gone.”
Many of us have been paying attention to the workings of those in the Trump administration who spent four years writing Project 2025 and are now putting that plan into action, but Tuesday morning’s news was shocking nonetheless. Thank you, Diane, for precisely putting our surprise and our despair into words.
The staff dismissals at the U.S. Department of Education began on March 20, with President Trump’s executive order to dismantle the department. In a short and extremely helpful summary, the NY Times‘ Abbie VanSickle recounts the entire history:
“Mr. Trump had signed an executive order on March 20 instructing Ms. McMahon to start shutting down the federal agency…. Shortly after, two school districts, the American Federation of Teachers and 21 Democratic state attorneys general filed a legal challenge in federal court in Massachusetts. The challengers asked a judge to block the executive order… On May 22, Judge Myong J. Joun of the U.S. District Court for the District of Massachusetts ordered the Trump administration to reinstate the fired employees while the lawsuit was pending… On June 4, a panel of judges in the U.S. Court of Appeals for the First Circuit upheld Judge Joun’s ruling. Two days later the Trump administration filed an emergency application with the Supreme Court, asking it to intervene… In response, lawyers for the challengers argued that the agency’s leaders had ‘set out to destroy the agency by executive fiat’… without the support of Congress… The Trump administration replied in court filings that the department had ‘determined that it can carry out its statutorily mandated functions with a pared-down staff….’ ”
Van Sickle wraps up her summary: “The Supreme Court agreed on Monday that the Trump administration can proceed with dismantling the Education Department by firing more than a thousand workers… The move by the justices represents an expansion of presidential power, allowing Mr. Trump to dismantle the inner workings of a government department created by Congress without legislators’ input. The firings will hobble much of the department’s work…. Particularly hard hit was the department’s Office for Civil Rights, which had seven of its 12 offices shuttered…. The order is technically temporary, in effect only while courts continue to consider the legality of Mr. Trump’s move.”
The problem, of course, is that nobody knows how long it might take for the U.S. Supreme Court fully to consider the legality of Mr. Trump’s move.
Education Week‘s Mark Walsh reports that in a 19-page dissent on behalf of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, Sotomayor “called the action ‘indefensible.’ In her dissent she explained: “Undeterred by… limits on executive authority, President Trump has made clear that he intends to close the department without Congress’s involvement…The department did not explain how terminating half of the agency’s work force overnight would improve efficiency, nor how it would be able to continue carrying out its statutory functions… The president… lacks unilateral authority to close a Cabinet-level agency… Congress created the department, and only Congress can abolish it.”
Walsh reports U.S. Solicitor General. D. John Sauer’s response to the injunction filed by challengers trying to block the layoffs: “The injunction rests on the untenable assumption that every terminated employee is necessary to perform the Department of Education’s statutory functions.”
As core staff have been missing and a number of key departmental responsibilities and routines have been disrupted in the ensuing chaos after the President’s February 20 executive order, the NY Times‘ Dana Goldstein and Michael Bender trace the story of a Department whose operation reflects a new set of priorities: “Mr. Trump has not hesitated to use the agency’s powers. The department has played a crucial role in the administration’s investigations into antisemitism accusations and gender issues on college campuses and has taken the lead on similar inquiries into K-12 schools and state education systems. Many of these efforts are tied up in litigation, and ultimately, it may be up to the Supreme Court to decide how much power Mr. Trump has to withhold funding from education institutions. In the meantime, the agency issues regulations on how civil rights laws apply to various groups of students, including disabled students, L.G.B.T.Q. students, racial minorities, and women and girls. One of the administration’s favored strategies is to argue that when schools allow transgender students to use the bathrooms or play on the sports teams of their choice, it is a violation of girls’ rights under Title IX… (The administration) has also argued that racial equity efforts discriminate against white students. Mr. Trump has shown less interest in other elements of civil rights law. He has fired government lawyers who investigate schools that fail to provide equal access and services to children with disabilities, for example.”
The Washington Post‘s Laura Meckler, Jason Jouvenal, and Danielle Douglas-Gabriel quote a member of the staff who has served as a Federal Student Aid ombudsman and who has been on leave until her job was terminated this week: “Education Department employees vowed to keep pursuing litigation to remain on the job despite the setback Monday. ”The fight is not over,’ said Rachel Gittleman… ‘The work is still not happening, and the harm to families and communities has ultimately continued.’ She and others have been on administrative leave since March, being paid not to work. According to the American Federation of Government Employees, the government has been spending more than $7 million a month to keep the education staff on leave… Less than 45 minutes after the Supreme Court ruling, Gittleman said she got her final termination notice.”
Of course, Education Secretary Linda MacMahon tells the story from the point of view she has learned loyally to articulate. Education Week‘s Brooke Schultz quotes from MacMahon’s prepared statement: “It’s a shame that the highest court in the land had to step in to allow President Trump to advance the reforms Americans elected him to deliver using the authorities granted to him by the U.S. Constitution.”
In a broader analysis in yesterday morning’s NY Times, Supreme Court reporter, Adam Liptak discusses, from a legal point of view, the problem with Monday’s decision along with a growing number of other recent Supreme Court decisions in cases that are part of what’s being called “the shadow docket”:
“In clearing the way for President Trump’s efforts to transform American government, the Supreme Court has issued a series of orders that often lacked a fundamental characteristic of most judicial work: an explanation of the court’s rationale. On Monday, for instance, in letting Mr. Trump dismantle the Education Department, the majority’s unsigned order was a simple four-sentence paragraph entirely devoted to the procedural mechanics of pausing a lower court’s ruling. What the order did not include was any explanation of why the court had ruled as it did. It was an exercise of power, not reason… The question of whether the nation’s highest court owes the public an explanation for its actions has grown along with the rise of the ’emergency docket,’ which uses truncated procedures to produce terse provisional orders meant to remain in effect only while the courts consider the lawfulness of the challenged actions. In practice, the orders often effectively resolve the case… Critics call the emergency docket ‘the shadow docket….’ “