State education departments are stuck: Either sign on to President Donald Trump’s order targeting diversity, equity and inclusion initiatives in the classroom — that many administrators, lawyers and advocates think is legally unsound — or risk losing federal funding.
In early April, the Department of Education announced it would be requiring states to sign and return a document certifying that they are in compliance with two civil rights laws, Title VI and Students for Fair Admissions v. Harvard, and that compliance is necessary to receive federal funding.
States have until April 24 to submit their certifications.
But the administration’s document also suggests that certain DEI programs may be illegal — a tipping point making many state leaders wary of fulfilling the requirement.
“We understand that the current administration seeks to censor anything it deems ‘diversity, equity & inclusion. But there are no federal or State laws prohibiting the principles of DEI,” Daniel Morton-Bentley, counsel and deputy commissioner of the New York State Education Department said in a letter to the federal government.
For states that have said they will defy the administration’s requests, lawyers and advocates tell NOTUS it’s impossible to say what the price would be because of the administration’s abdication of process norms.
“I don’t think any educator is taking lightly the question of how to move forward here, recognizing the real stakes involved for children,” said Liz King, senior director of the Education Equity Program at The Leadership Conference on Civil and Human Rights. “The cost of this retaliation is not just lost revenue for a state. The cost of the retaliation is lost education for children.”
Other states that have rebuffed the administration’s past requests have found that its threats are not empty. The Department of Education said Friday that it would be adjudicating the termination of federal funding for the Maine Department of Education after the state stood firm on allowing transgender athletes to participate on sport teams that match their gender identity.
Less than a month after placing billions in funding to Harvard University under review, the Trump administration’s Joint Task Force to combat anti-Semitism said Monday that it will freeze $2.2 billion in multi-year grants and $60 million in multi-year contracts to the private university.
“Federal financial assistance is a privilege, not a right,” Craig Trainor, the Education Department’s acting assistant secretary for civil rights, previously said in a statement.
States like New York, California, Massachusetts and Minnesota have indicated they will be resisting pressure from the Education Department and seem to have support from Democratic lawmakers. California lawmakers told NOTUS they wanted to see the state fight.
Rep. Ritchie Torres told NOTUS he fully supports the New York State Education Department’s pushback but that it has to be careful about losing the federal dollars. “There’s a balance to be struck,” Torres said.
“I think we are witnessing the weaponization of the federal government. States like New York should be at the forefront of the resistance,” he said. “We have to fight as hard as we can without losing federal funding. The school system receives millions of dollars from the federal government that they cannot afford to lose.”
The New York City Department of Education, the nation’s largest school district, operates on a $40 billion dollar budget. About 5%, or $2.2 billion, comes from the federal government. The majority of the city’s public schools qualify for Title I funding, and, like states across the country, get millions from that program annually.
Rep. Nick LaLota, a New York Republican, didn’t comment on the state education department’s decision not to certify, but said that “we have to be careful about losing funding.”
No matter what happens after April 24, there will almost certainly be litigation. Derek Black, a University of South Carolina law professor and education law scholar, said he’s been publicly advising education officials, whether they sign or not, to send their attorneys to federal district courts seeking declaratory or injunctive relief against the Education Department.
“I’ve seen them terminate funds of universities and go from, in a process that would normally take one to two years, I’ve seen them go from zero to 60 in five days,” he said. “It wouldn’t surprise me at all if this administration were to terminate funds or take steps to terminate funds for a particular state.”
The Department of Education has been undertaking Office for Civil Rights investigations in a more expedited manner. In Maine’s case, for example, about a month elapsed between the department announcing its investigation and reporting it had reached a conclusion.
Due to a court decision, the department can’t initiate any investigation or enforcement action in connection with the certification until after April 24. The initial deadline for returning the document had been April 11.
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Violet Jira is a NOTUS reporter and an Allbritton Journalism Institute fellow.