SPEAKER_00: 0:00

Hey everybody, thanks for tuning in again to Academic Distinctions. This is Zach. We've got a great conversation today about the Supreme Court's recent shadow docket ruling on the dismantling of the U.S. Department of Education, as well as a wonderful conversation with the inimitable John Becker about the withholding of federal funds from states and districts for public education. We did record this prior to OMB releasing about$1.4 billion for Title IV funds, but that does not mean that Thank you. Thank you. Hey, Stephanie.

SPEAKER_02: 1:00

Hey, Zach.

SPEAKER_00: 1:01

You look like you've got some questions.

SPEAKER_02: 1:03

I do. I do. You know, I'm just trying to like wrap my brain around what is going on in D.C. I think not that there's a day that I'm not trying to wrap my brain around what's happening in D.C., but you know.

SPEAKER_03: 1:14

That's fair. That's fair.

SPEAKER_02: 1:18

Yeah. So the Supreme Court issued a Not a ruling, a ruling, a something that said Trump can go ahead, like, just go for it, babe. Go ahead and dismantle the Department of Education.

SPEAKER_00: 1:34

Sort of.

SPEAKER_02: 1:35

Sort of, right?

SPEAKER_00: 1:37

So what they wanted to do was dismantle and take apart the Department of Education. And folks said, wait a minute, you can't do that. And so they filed for an injunction.

SPEAKER_02: 1:50

Who's they? Who's they?

SPEAKER_00: 1:52

The plaintiffs lost multiple lower courts, like across the country, multiple lower courts were like, you can't just dismantle the Department of Education.

SPEAKER_02: 2:05

That takes like an act of Congress, right? Like as far as I know.

SPEAKER_00: 2:08

Right. And so the suits were like, you need to stop doing that because we don't think you're allowed to do this. And so lower courts were like, we think you're right. And so they issued a preliminary injunction. which basically said, hey, Linda McMahon, you are too ready to rumble. I'm going to get as many wrestling references as possible. And so they issued the injunction and said, you have to stop doing that. Now, what you and I maybe know as folks who are employed by the U.S. Department of Education. Well, now we got an email from H.R., that said, hey, because of this preliminary injunction, we want to know if you want to come back here because we have been told we have to stop doing this. And the Secretary of Education went to the Supreme Court and said, guys... I want to destroy this thing I'm in charge of. And so asked for an emergency ruling on what sometimes is called the like the shadow docket. Yeah. What is the

SPEAKER_02: 3:19

shadow docket?

SPEAKER_00: 3:20

It's the emergency docket. And so the Supreme Court has like a session where they hear cases like they announce here the cases we're going to hear. They hear those cases argued. Then they take some time. They all write. They kind of come to a decision and they issue their opinions very formally. the emergency docket is this, this kind of separate track where you've got something that you're saying, like, we need to get this decided right away. So they hear it and then they move forward. Bush V Gore would be a good example, right? Some hanging chads that wasn't like, they didn't wait to get on the, on the courts session, like on their docket, their formal docket. There was like, we need a decision right now. So the justices came together, they moved very quickly and, And so the Supreme Court justices in a 6-3 ruling said, yeah, we're going to say no to that preliminary injunction. You can go ahead and do what you want to do. You have the authority to do this, largely saying things like, well, you're going to move this program from the U.S. Department of Education to the Department of Labor, right? So saying like you've accounted for congressionally mandated programs. in some ways. And so you're doing some things that are fine. And other ways, like you've got executive power to do these things, even while that larger case of whether or not you can do these things or you need to go to Congress is making its way formally to the Supreme Court, right? So there's like the lower courts and then appeal and then challenge, challenge, challenge, the way things normally get to the Supreme Court's regular docket. So that will be where they decide whether or not The executive has this power or if they need to go to get an act of Congress to do what they're doing. So this didn't say, yes, you can destroy the– you can get rid of the Department of Education. What it said was you can keep working– while this case is making its way to us, which kind of in a de facto way means they are dismantling the Department of Education because right away, like moments after that news broke, I got an email from HR that said, hey, according to this ruling, you are going to go ahead and get let go, which we know we are, but they keep sending these emails to our personal addresses. So that is what that means. with this SCOTUS ruling. Still really worrying, and our friend John Becker, who we'll be talking to a little bit later in the pod, has a great piece that will, a great kind of outline of this, and then links to a Georgetown con law professor that talks about how this issue is actually the opposite of what the court did in the challenge to the Biden administration's student loan save repayment program. What they said there was, no, no, no, we can't let this happen. We are going to put this injunction in place while we wait for that case to make its way to us. So very, and along very similar lines. So very interesting things going on right now. All very bad for the children, I should say, and the teachers. But not as bad as what we really want to talk about today. Does that answer your question, Stephanie?

SPEAKER_02: 6:36

I think so. So if I can say it back to you, basically, it's like...

SPEAKER_00: 6:43

Back up a bit more from your mic. You're coming in real hot.

SPEAKER_02: 6:46

So sorry. How's that? Is that better? Yeah.

UNKNOWN: 6:50

Okay.

SPEAKER_02: 6:50

So let me see if I can say back to you a little bit what you said to me. So it's not that the Supreme Court said, go for it. It's just the Supreme Court said, we're not going to tell you to stop.

SPEAKER_00: 7:01

We're not going to tell you to stop while we wait for this other case to make its way to us.

SPEAKER_02: 7:06

Right. Okay.

SPEAKER_00: 7:07

They could have said, wait a minute. If that case comes and we decide, no, you don't have the power to dismantle the Department of Education, it'd be a real bummer if you'd already dismantled it. But instead they were like, while we wait for it, go and do whatever you want to do.

SPEAKER_02: 7:21

Let's see what plays out. Yeah. Let's see what happens. Yeah.

SPEAKER_00: 7:26

What you might take is a bit of a wink to like, we kind of know how that one's going to play out. Yeah. And what I will say is that if folks want to head over to the strict scrutiny podcast, season six, episode 39 deals very specifically. So if you want to really nerd out on, on SCOTUS decisions and the workings of the, of the judiciary, which always makes me think of the rural juror, um, strict scrutiny season six, episode 39 titled SCOTUS strengthens conservative war on education. So I think some probably heavy size there too.

SPEAKER_02: 8:02

It sounds like so much fun, like a real uplifting. Listen. Yeah.

SPEAKER_00: 8:07

Speaking of depressing. Yeah. Um,

SPEAKER_02: 8:09

what else we got?

SPEAKER_00: 8:10

Have you ever had a budget issue?

SPEAKER_02: 8:13

several times in my whole life.

SPEAKER_00: 8:17

Uh-huh. Okay. So this is going to surprise you, but schools, districts, and state education offices also have budgets, Stephanie.

SPEAKER_02: 8:25

Yes, this I am very familiar with as somebody who has taught through multiple, multiple budget deficiencies. Uh-huh.

SPEAKER_00: 8:32

Yeah. And so they start getting ready for the next school year in like the beginning of the calendar year. Correct. Because schools and districts and states want to get that hiring wrapped up. So hiring plans happen at the beginning of the year. Those hiring plans get approved. Folks look at numbers for enrollment. Yeah, exactly. PD plans, definitely, right? Because how are we going to spend this money?

SPEAKER_02: 9:00

We look at programs for how do we support kids that are not... are not getting the services that they need. Like what programs can we put in place to help our learners who are currently struggling in particular avenues? And how do we support our students who are coming in who need support with English as a second language or something like that? You know, multilingual learners in general.

SPEAKER_00: 9:24

Exactly. So they do all that work in the spring.

SPEAKER_02: 9:26

Yeah.

SPEAKER_00: 9:27

And then they go about hiring and they do that work largely in the like May, April period. They say, here's the money that's going to come in. Here are the student populations that we're going to have. Here are our priorities. Here's what we want to do PD. We plan all of that out. That money is largely planned on and encumbered before everybody leaves on summer break. And you want to know why? Because people actually leave on summer break. They go places or they go to PD. I should say that too, right? We did a

SPEAKER_02: 10:03

lot.

SPEAKER_00: 10:05

I feel like that's a pretty

SPEAKER_02: 10:06

traditional thing. Many teachers spend their summer breaks learning or planning for the next year, right? Like how many times did I figure out that my schedule changed from one year to the next in the middle of the summer? And suddenly I had a whole new course that I had to write like resources for. Yeah.

SPEAKER_00: 10:22

But if you were to go to a school right now, right in the middle of July, if you were to go to the school down the street, probably maybe three people would be there. Maybe. Yeah. And maybe only one of them was like contractually required to be there or there's a summer school opportunity or something going on that the building is being used. But those things tend to be run by teachers from other places in the district. They have tend to have administrators who are not necessarily that building's administrator. Right. So there's like a summer school principal, which tends to be somebody who's like getting their feet wet as a principal. So like the people in your building are not the permanent staff right now over the summer. I say all this to help folks understand that at the very beginning of July, when buildings and schools across the country were largely dormant, there was an announcement made by the US Department of Education that it was withholding title funds from being distributed across the country. And we've talked a little bit about how title funds work, right? So title one, It helps to ameliorate the impact of poverty. And Title II, Title II is largely around professional learning and development. Title III is around multilingual learning. Title IV has a whole bunch of uses to it. But those titles, those I, II, III, and IV are figured out based on an equation, right?

SPEAKER_02: 11:51

You

SPEAKER_00: 11:53

know I love a good equation. Title one funding is not to supplant. So it's on top of whatever the funding is that you get for the basic provision of services at your school. So when the federal government in the middle of summer vacation says we are withholding that money, it breaks a lot of systems down.

SPEAKER_02: 12:37

Yeah. Seems like, um, it seems, Fun fact, not fun fact, fun opinion. It kind of seems like not only are they dismantling the Department of Education, they're dismantling education at the state level, which they said they were going to return to states, right?

SPEAKER_00: 12:54

Yeah. It sounds like the federal government is saying we are getting out of the business of ensuring that all students in this country have a right to learn.

SPEAKER_02: 13:09

It's so backwards. How do we think our country is going to compete with other countries if we do not take public education, education as a whole, I should say, seriously or value it? We have completely devalued it. And when I say we, I mean them. They have completely devalued education as a public good, it seems.

SPEAKER_00: 13:36

Yes. as a national public good, right? So the language that's being used is this is still a state-level good. States go ahead and do this. But the states have built budgets that are dependent upon that federal money happening. And one of the things we need to talk about is that that makes a difference to your neighbor. That makes a difference to your niece, to your nephew, to your grandchildren. That makes a difference to the teachers you know in your lives. This removal of funding means that your public school, your local public school is going to suffer. Children you know are going to suffer.

SPEAKER_02: 14:17

Children you don't know are going to suffer. Even if you don't know somebody who goes to school, you went to school. Come

SPEAKER_00: 14:25

on. But if you're mildly selfish and don't care about other children you don't know, I'm telling you right now that the children you know are going to suffer. And also if you know somebody who works in a field related to education, That is going to suffer. Or if you know somebody who works in a field that sells something to schools, those schools now have less money to buy those things. So they're probably not going to buy those things because they're going to retract that money and they're going to go then say, okay, we have to fund these teachers because we need to save these jobs. The decision to withhold these title funds has ripple effects across an entirety of our economy.

SPEAKER_02: 15:05

Yeah.

SPEAKER_00: 15:05

To say nothing of keeping kids and teachers safe and learning and teaching.

SPEAKER_02: 15:11

Yeah. How are they allowed to do this? Like, how can they just wake up on July 1st and be like, I'm just kidding. We're not going to send you the money that we said we were going to give you that Congress has already approved to send to you. I

SPEAKER_03: 15:22

would

SPEAKER_00: 15:24

like to make a joke here that's like, it's the federal government. Nobody just wakes up and does something. But the way that this particular administration has been operating, I think maybe somebody did just like, let's write a letter. And so... But I also think there are probably some legal ramifications here. But don't worry, Stephanie. John Becker is here to help.

SPEAKER_02: 15:42

I am so glad.

SPEAKER_00: 15:48

All right, John Becker. We're real worried about, well, everything. So... Let's start at the very beginning. Stephanie asked a really good question. Can the executive branch legally do what it is doing in withholding title funds from states and districts across the country?

SPEAKER_01: 16:19

I'll say probably not. How's that? Okay. To me, it's not all that different than the issue that the Supreme Court just– um, dealt with in a bizarre way, um, in that. So in the, in the Supreme court lifted a preliminary injunction, um, about whether the education department could, uh, fire without, you know, over a thousand people. Um, and so there were, you know, the questions can, can the executive get rid of a cabinet level agency? Um, and you know, that's probably not to, uh, But I say probably not because the law says things like this stuff has to be done through the Secretary of Education. So title one, let's say, of the Elementary and Secondary Education Act, the actual language of the statute says the Secretary of Education shall. Well, so what happens if there's no secretary of education? You'd have to get rid of the agency in order for it to not exist. And then you'd have to change the law to say the federal government shall or an agency of the executive branch of the federal government. And so it's all tied together. That sounds

SPEAKER_02: 18:02

really ugly. Yeah. I mean, if he wants to dismantle the department, all he has to do is fire Linda McMahon? Am I removing

SPEAKER_01: 18:17

her? That's the probably no part. I mean, I think most experts say the language that created the... Department of Education says that Congress shall create this thing and therefore the assumption is Congress is the only agency that could– or only branch that could get rid of it. But again, like if they got rid of it, what do you do with the fact that the statute says the Secretary of Education shall? And so like if you go back to like Project 2025 says, for example– the Office of Civil Rights within the Department of Education would move to the Department of Justice, right? Well, there are things that OCR has to do by statute that say Secretary of Education shall. So can the Attorney General do that stuff? Not by statute. That's why you'd need Congress involved here. There's a statutory language under ESEA, but there's also issues around what's called the Impoundment Control Act.

SPEAKER_02: 19:25

Yeah. Yeah. Talk about that.

SPEAKER_01: 19:27

Colloquial language is Congress has the powers of the purse. Right. And so Congress authorizes spending certain money in certain ways, and they're supposed to control it. And there are– instances when the executive branch can make modifications, but generally it's prohibited under the Impoundment Control Act. It's considered an act of impoundment for another branch of government to modify the spending that Congress authorized.

SPEAKER_00: 20:02

What's interesting there is that the thing that is happening while we are recording this episode is that the Senate is taking up the rescission of funding to the corporation for public broadcast, like monies, like there's a way to do this. Yep. There's an appropriate and approved way to do this, but they're not doing that in this particular case.

SPEAKER_01: 20:28

Uh, yes. And my suspicion is that, um, it's, uh, well, it's less, uh, consequential or it's, it's, The perception is less– like if we got rid of NPR or PBS, not a huge deal. And so we can go through the process. The Senate will agree to it because there's no, I don't know, electoral consequences for getting rid of NPR funding.

SPEAKER_00: 20:56

But if a senator says we're going to get rid of special education services, then they're probably not going to get reelected.

SPEAKER_03: 21:04

Yeah.

SPEAKER_01: 21:05

Yeah. I mean, I've been saying that if I think if Democrats were smart, they ought to be pounding the language of like defunding education the same way that Republicans pounded this idea of like defunding the police, which wasn't really actually about defunding the police. If we said Republicans are defunding education, which they're not really fully doing, but, you know, in a lot of ways they are. And I think that's a pretty strong electoral argument. campaign message. They're defunding public education. Right.

SPEAKER_00: 21:35

They're defunding your schools, right? That's the pieces. I think, I think that folks, I think that we talk a lot about property taxes, right? We know that the majority of education funding doesn't come from the federal government. And so I think people think, okay, if we cut off the federal funding, we still got everything we need to run these schools, but schools are, have been, been built around an assumption that, and a belief and a promise that those federal funds are coming. And so they have hired and staffed and designed themselves in such a way that if you don't bring them that money, you've actually broken those schools.

SPEAKER_03: 22:12

Right.

SPEAKER_02: 22:13

I have a really interesting, like, well, not interesting. I have a hard time with the, like, well, if we don't have funding, we have everything we need. It's like, well, no, you don't like the title funding accounts for in some cases, more than 15% of your state education budget. And if you think that that does not, impact schools disproportionately in, in areas of increased poverty, let's say like, where do you think that money's going to come from?

SPEAKER_01: 22:41

Yep. I mean, say to tell parents like, well, we've got to lay off 15% of our teachers. Right. And so your kid's class goes from, you know, 20 kids to 30 kids. How do you feel about that?

SPEAKER_02: 22:54

Yeah. Yeah. I mean, I, so I. Not great.

SPEAKER_00: 22:58

No. If that was not a rhetorical question, I just went, no, I would not feel great.

SPEAKER_02: 23:01

I used to work in my local school district and we had a class cap, class size cap of 36 with our, with our current contract. But previously to that, we used to have a, you had to have a class average, class size average of 36. So I could have one class and I had one class in one of my first years at this one school site where I had 18 kids in one class and 49 in another.

SPEAKER_01: 23:30

49.

SPEAKER_02: 23:34

Yeah. And that was, that was eighth graders. I had 49 eighth graders in a class. Like, whew, that was, that was fun.

SPEAKER_01: 23:42

Even half, even half of that is too much.

SPEAKER_02: 23:47

Preaching to the choir. It was like we had first come first serve seating. I could not have a seating chart. How long can they withhold these funds?

SPEAKER_01: 23:58

Forever? I wonder if they waited to like as late as they possibly could and could make the argument that if we don't know we're getting the funds like we're planning right now for next year. Right. So if they filed this in in June, it might have been like, well, we can still make some adjustments. But like now we need to know like right now that we're getting these funds or we're not getting

SPEAKER_00: 24:39

it. It was it was only 15 days. Right. So the announcement was made July 1st. So. Yes. I don't know. Two weeks to get 24 attorneys general moving seems pretty good.

SPEAKER_02: 24:51

Yeah, that's not too bad.

SPEAKER_01: 24:52

Yeah. So now– well, and the other issue is let's say these 24 attorneys general get the courts to issue a preliminary injunction. We have another Supreme Court issue where the Supreme Court recently said actually preliminary injunctions can't be nationwide for the most part.

UNKNOWN: 25:14

Yeah.

SPEAKER_01: 25:15

So now what? So let's say they get– what the courts can do now pursuant to the Supreme Court is they could get a preliminary injunction as to the plaintiffs. So this funding will only have to resume for those 24 states. This is why the Supreme Court decision about nationwide injunctions is ridiculous because– Right. So the Department of Education is only going to have to release the funds to those 24 states? That's– That's logistically silly and obnoxious.

SPEAKER_00: 25:48

John, if you're reading, so let's say preliminary injunctions, right? They pop up. And if you look at a map at who has made these suits, it is the left and the right of the country, not so much the bottom or the middle. Those are going to be local, right? If there are preliminary injunctions, those are going to be local to those states. But a preliminary injunction would say you have to send that money out.

SPEAKER_01: 26:13

A preliminary injunction would stop them from not sending it, yes.

SPEAKER_00: 26:19

So it would compel them to send the money?

SPEAKER_01: 26:21

I would think so, yes. The federal government could– if a district court issues a preliminary injunction, the federal government could ask for a stay of that. And all the stay does is it keeps the status quo– while the lawsuit proceeds. But these lawsuits could take a year or two, and that makes no sense in this case because they need the money right now.

SPEAKER_00: 26:46

I want there to be happy, fun legal questions where we invite you on, John, because you're a real fun person. Yeah. You are a real bummer every time we've talked to you.

SPEAKER_02: 26:58

Give us some hope. Give us some hope. Assuming that this is a longer process, what are some immediate things that can be done at this point? What can listeners do to secure public education? I

SPEAKER_01: 27:15

would always encourage people to contact their representatives, their senators, and have them put the pressure on them Russ Vought or whoever's holding up this money. Um, there's, there's no reason your Senator couldn't make a phone call or just show up at Russ Vought's office and say, you know, this, this money is for my constituents who, um, need it and are in fact in most need of resources for education. Um, and encourage your, uh, Congress people and senators to, um, To make this clear, this is bipartisan. There's a lot of kids in red states who get a lot of this funding and are going to lose out. Just because these are the AGs that are filing the suit doesn't mean that those are where these issues are going to be problematic. The other thing I think would be– would be, and I, you know, I'm sure you all agree, like storytelling is powerful. And so being able to tell the stories of what's going to happen if these particular funds, because these are very specific set of grant funds for very specific set of purposes. And to be able to say like, this is what's going to have, these kids are going to suffer in these ways. If these particular funds are not issued, that could be pretty compelling.

SPEAKER_00: 28:40

All right, John Becker. Yeah. How optimistic are you that this money is released before schools start opening like mid-August for some places?

SPEAKER_01: 28:57

I'd put the odds at like 57%. How's that? Less or minus three.

SPEAKER_00: 29:06

Okay. It's

SPEAKER_02: 29:06

probably better than maybe, maybe not.

UNKNOWN: 29:08

Yeah.

SPEAKER_00: 29:08

Even minus three has this over 50%. And in these times, I will take that.

SPEAKER_01: 29:14

Yeah. I mean, I say that because it feels to me– well, the Supreme Court case about the Department of Education feels so clear to me too. Like it's just so clear that the executive branch can't just close one of its agencies without involving Congress. Yeah. Again, I'm repeatedly disappointed because it feels to me like the law obviously says this thing and then the Supreme Court does something different. Well, and Congress is not

SPEAKER_00: 29:43

acting, right? Like by and large.

SPEAKER_01: 29:45

Right, right.

SPEAKER_00: 29:46

I think sometimes that would be framed differently. But like that the majority in Congress right now just seems to be like, we'll let this ride when the executive is just kind of gobbling up the named powers. is just kind of amazing to watch.

SPEAKER_01: 30:06

Yeah. And, and so, you know, I'm, I'm on the, uh, good side of 50% because in this case, um, it just seems clear to me, like if the, if, even if the feds are arguing that they have the right to stop these funds to stop them now, as opposed to say like, well, next year you're not getting any. Right. Um, right. That, you know, like there's a, an emergency, uh, In the law, in the contract, in contracts law, there's a term called reliance. And if you come to act in reliance on an agreement, you have a good case. And I would say here that's kind of what the schools are dealing with. Like they've– They were told they're getting this money. They've acted in reliance. They've made certain hires or whatever, and now you're telling us we can't get it. So there may be sort of a contractual claim here, like you made an offer, we accepted your offer, and we acted in reliance on it, so send us the money. And if, again, Trump and Roosevelt and Lyndon McMahon want to stop these particular grant funds from flowing, then go through Congress and do it for next year. So we can all plan around it.

SPEAKER_00: 31:24

Which you can then, like, it is interesting to choose to make so many people angry, like the potential to make so many people angry about this in doing it this way. It's such a, like, it's a different, it's like, why are you poking this?

SPEAKER_01: 31:40

Yeah. Yes.

SPEAKER_00: 31:41

People on your side, on your side on this issue, but you're doing it in a way that's like, Oh yeah, my, my, my sister lost her job or my niece or my nephew or like they got fired because you did it this way.

SPEAKER_01: 31:54

Yeah. Yeah. That's, that's also, I think what puts me, you know, over 50% is, you know, I was making sort of the legal argument, but I think you're making the political arguments act like it's at some point someone's going to realize like this is just a bad, it's bad politics to, you know, defund education. Right. It'll make a lot of

SPEAKER_03: 32:16

people mad.

SPEAKER_01: 32:17

Right. Right. And so someone's going to come to their senses around the federal government. So, you know what, this is probably a, this is not a hell worth dying on.

SPEAKER_02: 32:26

Yeah.

SPEAKER_01: 32:27

For now. For now.

SPEAKER_00: 32:30

All right. John Becker, as depressing as it is, it is always a pleasure to talk to you. Thank you for joining us.

SPEAKER_01: 32:38

When we get a new, like, fun thing, like First Amendment or religion, we can talk about that stuff.

SPEAKER_00: 32:45

There you go. Always a pick-me-up.

UNKNOWN: 32:50

Thanks, John. Woo!

SPEAKER_00: 33:00

and thank you for listening to another episode of academic distinctions for stephanie millville i'm zach chase thanks to our wonderful guest john becker for helping us to make sense of what's going on in education and the law you can find academic distinctions a podcast to make sense of american education anywhere you find podcasts probably where you found this episode and as always you can find us on social media we're on blue sky we're on instagram we're on facebook and you can send us mail at mail at academicdistinctions.com if there's a topic or question you'd like us to tackle. Until next time, thanks for listening. Academic Distinctions is supported financially by the Federation of American Scientists. You can find out more about FAS at FAS.org.

UNKNOWN: 33:57

Music