New Executive Order Directs Secretary of Education to Facilitate the Department’s Closure

At a Glance

• On March 20, President Trump issued an executive order (EO) aimed at dismantling the U.S. Department of Education (ED or the Department). The EO directs the Secretary of Education, Linda McMahon, to “take all necessary steps to facilitate the closure of the Department of Education” to “the maximum extent appropriate and permitted by law.”
• Fully eliminating the Department, however, would require additional congressional action, as ED and its primary offices and functions are established in various statutes. Nonetheless, the Department’s operations have already been significantly impacted by a reduction in force effectuated on March 11, affecting a broad range of its offices and functions.
• The EO does not include detailed guidance regarding how the Department’s functions would be reallocated or reassigned to other agencies, although the administration has indicated certain intentions in that regard. Educational institutions, accreditation agencies and other entities associated with ED should closely monitor new legislative developments and agency directives in the coming weeks.

Overview of the Executive Order

On March 20, President Trump issued an executive order (EO), “Improving Education Outcomes by Empowering Parents, States, and Communities,” directing the Secretary of Education, Linda McMahon, to “take all necessary steps to facilitate the closure of the Department of Education” to “the maximum extent appropriate and permitted by law.” The EO comes shortly after a significant reduction in force (RIF) at the Department, resulting in the dismissal of almost half of its employees and the closure of most regional offices nationwide.

Although the EO does not outline specific directives for dismantling the Department, it orders the Secretary of Education to “return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.” That statement appears to largely pertain to K-12 schools, where federal elementary and secondary education funds comprise a small fraction of total public K-12 school financing, but also specifically allocate resources to schools with high concentrations of students from low-income families and provide grants for students with disabilities. With respect to higher education, the EO focuses chiefly on student financial aid programs (e.g., federal student loans and Pell grants), stating that the Department “is not a bank, and it must return bank functions to an entity equipped to serve America’s students.”

The limited content of the EO, and related statements from President Trump regarding where certain Department functions might be reallocated (i.e., potentially to the Small Business Administration), comes amidst dramatic staffing cuts to the Department. Those cuts particularly impacted the Office of Federal Student Aid (FSA), the Office for Civil Rights (OCR) and the Institute of Education Sciences, which conducted education research and evaluation to support evidence-based policies and practices. Within only FSA — which, in addition to managing a federal student loan debt portfolio of more than $1.6 trillion, oversees all institutional applications related to Title IV participation including certification, mergers and changes in ownership or control, financial oversight matters, and program reviews — the reduction-in-force (RIF) reduced its School Participation Division from nearly 200 staff to fewer than 30 persons. We issued a previous update regarding the effects of the March 11 RIF earlier this month.

The absence of further procedural detail in the EO regarding the steps required to close the Department indicates that the administration must rely on new legislation passed by Congress to reorganize ED and its core functions. It is not possible to transfer the primary functions of the Department to another agency without such legislative action. The Department of Education Organization Act (the ED Organization Act), which established the Department in 1979, specifies that the agency “shall” conduct a range of core functions to “ensur[e] access to equal educational opportunities” and “support more effectively states, localities and public and private institutions in carrying out their responsibilities for education,” among other priorities. The ED Organization Act mandates that the Department’s structure include an Office for Civil Rights, an Office of Elementary and Secondary Education, an Office of Postsecondary Education, an Office of Special Education and Rehabilitative Services, and many other functional units. The ED Organization Act also expressly reallocated to the Department of Education responsibilities that were previously tasked to the Department of Health, Education and Welfare (simultaneously renamed Health and Human Services), including all functions related to administering the Higher Education Act (HEA), the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act (IDEA). In the context of the EO, the ED Organization Act requires that the secretary and deputy secretary carry out the functions of the Department as described in the statute.

Consistent with the ED Organization Act, the current versions of the HEA, ESEA, IDEA and other federal statutes specifically vest the Secretary of Education with the authority to administer and regulate the federal programs created by those laws. In the postsecondary context, Title IV of the HEA outlines the legal framework for ED’s administering federal student financial assistance for postsecondary students. The HEA also places sole federal authority for the recognition of accrediting agencies — as a critical element of the Title IV “regulatory triad” that also includes state postsecondary authorizing agencies — in the Secretary of Education. Any changes to these statutorily mandated functions must be enacted by Congress, inherently limiting the scope of the EO and the secretary’s ability to unilaterally dismantle or transfer functions of the Department.

The EO also builds on other executive orders and agency directives targeting diversity, equity and inclusion (DEI) across public and private entities by ordering the Secretary of Education to “ensure that the allocation of any Federal Department of Education funds is subject to rigorous compliance with Federal law and Administration policy, including the requirement that any program or activity receiving Federal assistance terminate illegal discrimination obscured under the label ‘diversity, equity, and inclusion’ or similar terms and programs promoting gender ideology.” On February 14, the Department issued a Dear Colleague Letter (DCL) regarding the nondiscrimination obligations of educational institutions that receive federal education funds, followed by FAQ guidance on March 1. We issued a previous update regarding the Dear Colleague Letter in February, noting its efforts to greatly expand the application of the Supreme Court’s 2023 decision in Students for Fair Admissions to other significant aspects of an educational institution’s operations — including hiring, scholarships, housing, graduation ceremonies, “and all other aspects of student, academic, and campus life.”

Implications for Educational Institutions

Any changes to wind down or transfer the functions of the Department would hold significant consequences for nearly all institutions of higher education. Institutions have already been affected in recent weeks, particularly as the RIF also terminated most FSA teams overseeing institutional eligibility and certification associated with Title IV, shuttered numerous regional offices of both FSA and OCR, and left the Department with significantly reduced operating capacity. Further changes to the Department — particularly those effectuated by sweeping legislative proposals — could also impact the statutory and regulatory obligations of educational institutions. For now, however, the compliance obligations and reporting obligations of postsecondary institutions to the Department remain the same, just as they remained unchanged by the RIF earlier in March.

The Department also recently initiated Title VI investigations into 45 universities following the issuance of its February 14, 2025 Dear Colleague Letter, signaling that certain types of enforcement activities are likely to continue even as the Secretary takes steps to dismantle the Department. Although the Department noted in its DCL FAQs guidance that — like the DCL itself — the contents of the FAQs “do not have the force and effect of law and do not bind the public or impose new legal requirements,” the subsequent investigations based on universities’ activities related to DEI programs and scholarships, as well as the statement in the EO directing that the secretary take steps to ensure rigorous compliance with federal law and administration policy pertaining to DEI, demonstrate the Department’s intent to enforce its broad interpretation of the Students for Fair Admissions case. Thus, the EO does not change the Department’s current enforcement priorities, and in fact only reiterates them. Institutions should continue to assess their policies and risk profiles as they relate to potential OCR actions.

What’s Next?

Various organizations and a group of state attorneys general have filed lawsuits against the Department in recent weeks, arguing that the widespread staffing cuts resulting from the RIF were unconstitutional and violated the Administrative Procedure Act, and also that the staffing cuts are contrary to federal law by restricting the Department’s capacity to carry out its statutory obligations. A lawsuit was also filed by the American Federation of Teachers on March 18, arguing that the Department violated the Administrative Procedure Act by eliminating access to Income-Driven Repayment plans. As the Department continues to scale back its staffing levels — and potentially its programmatic operations — as a result of the EO, further lawsuits seeking injunctive relief may affect how the agency interfaces with educational institutions moving forward. Educational institutions and accreditation agencies should consult with legal counsel to assess agency directives published following the EO and should remain apprised of future legislative proposals affecting the Department.