Jan. 30, 2025
In one of his latest executive orders, President Trump is attempting to influence decisions that traditionally belong entirely to state and local governments, namely what topics, ideas, and texts are included in the curricula taught in K-12 public schools. But tucked into the order several times is a quiet, legalistic, but very powerful four-word phrase that everyone should keep in mind: “consistent with applicable law.”
In fact, multiple federal laws prohibit the federal government from getting involved in state and local decisions about K-12 curriculum, and no executive order can overrule a federal law (or regulation). Accordingly, both the federal agencies planning how to implement this order and the state and local education leaders considering whether and how to respond to it must pay close attention to the significant limits that the “consistent with applicable law” phrase likely places on the President’s desire to shape what is and isn’t taught (or even discussed) in classrooms. Increasing awareness of these laws might even help mitigate the chilling effects of the President’s order.
In “Ending Radical Indoctrination in K-12 Schooling,” President Trump ordered the Secretary of Education and other Cabinet officials to develop plans to, among other things:
“prevent or rescind Federal funds, to the maximum extent consistent with applicable law [emphasis added], from being used by an [Educational service agency, state educational agency, local educational agency], elementary school, or secondary school to directly or indirectly support or subsidize the instruction, advancement, or promotion of gender ideology or discriminatory equity ideology in…K-12 curriculum, instruction, programs, or activities.”
Another part of the order outlines ways the President will promote “patriotic education,” including a mandate that “[a]ll relevant agencies shall prioritize Federal resources, consistent with applicable law [emphasis added], to promote patriotic education.”
NOTE: This blog post does not address other important parts of the order, such as those related to how schools support transgender students. Nor do we analyze the legal merits of another provision in the order that would seek to eliminate curricula disfavored by the President by arguing that those curricula constitute illegal racial or sex discrimination in violation of civil rights laws including Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. We are reviewing these claims as well and will share our analysis in the near future.
Since the order was issued, several education and legal experts have pointed out that federal law prohibits the federal government from getting involved in state and local decisions about curriculum. Most cite Section 8526A of the major federal education statute, the Every Student Succeeds Act (ESSA), which states:
“No officer or employee of the Federal Government shall, through grants, contracts, or other cooperative agreements, mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act.”
ESSA Section 8526A is just one of multiple provisions throughout ESSA where Congress made clear that the federal government has no jurisdiction regarding curriculum. And Congress hasn’t limited itself to this latest version of the Elementary and Secondary Education Act. The prohibitions on federal involvement in curriculum predate ESSA and have been a point of bipartisan consensus.
Further, Congress has drawn this bright line in other federal education laws. The General Education Provisions Act (GEPA), which includes various statutes that govern U.S. Department of Education programs and functions, also prohibits any “direction, supervision, or control” by federal officials over “curriculum, program of instruction” or “selection of library resources, textbooks, or other printed or published instructional materials.” Indeed, in the very founding of the U.S. Department of Education itself, Congress included similar prohibitions about federal influence over curriculum in the Department of Education Organization Act (DOA). (Note that some of these legal prohibitions also apply to the role of the federal government vis-à-vis higher education and thus can be expected to come into play regarding the President’s actions affecting higher education programs and what is or isn’t taught or discussed on college campuses.)
We have collected the relevant ESSA, GEPA, and DOA prohibitions, pasted them below, and listed them in this standalone document. Congress has clearly and repeatedly outlawed federal intrusion into state and local curricular decisions. Although it only takes a single law to make something illegal, the collective weight of this list highlights just how clear a line the President must toe to remain “consistent with applicable law” when implementing his new order. Indeed, the multiple instances of this four-word phrase throughout the order suggest the Administration may also recognize the significant legal obstacles to exerting federal control over state and local decisions about teaching and learning. By remembering these legal limitations, we all — especially our education leaders — can also avoid overreacting to the order’s rhetoric.
* * * *
Every Student Succeeds Act (ESSA)
Title II. Preparing, Training, and Recruiting High-Quality Teachers, Principals, and Other School Leaders; Part C. General Provisions.
Sec. 2302. Rules of Construction.
Title V. Flexibility and Accountability; Part C. Prohibition Against Federal Mandates, Direction, or Control.
Sec. 5301. PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL.
Nothing in this title shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic standards and assessments, curriculum, or program of instruction, as a condition of eligibility to receive funds under this Act.
Title VIII. General Provisions; Part F. Uniform Provisions.
Sec. 8526A. PROHIBITION AGAINST FEDERAL MANDATES, DIRECTION, OR CONTROL.
Sec. 8527. PROHIBITIONS ON FEDERAL GOVERNMENT AND USE OF FEDERAL FUNDS.
(d) PROHIBITION ON REQUIRING FEDERAL APPROVAL OR CERTIFICATION OF STANDARDS. —
Sec. 8549A SENSE OF CONGRESS
General Education Provisions Act (GEPA)
Sec. 438. PROHIBITION AGAINST FEDERAL CONTROL OF EDUCATION
No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system, or over the selection of library resources, textbooks, or other printed or published instructional materials by any educational institution or school system, or to require the assignment or transportation of students or teachers in order to overcome racial imbalance.
Department of Education Organization Act (DOA)
Title I. General Provisions.
Sec. 103. FEDERAL-STATE RELATIONSHIPS
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.