The Limitations of Presidential Power to Withhold Funds from Schools That Do Not Reopen

President Donald Trump tweeted on July 8, 2020 that he was considering withholding funding from schools that did not reopen for the start of the 2020-2021 school year because of the COVID-19 pandemic.  The granting or withholding of funding, however, is not a power that President Trump clearly possesses as the head of the federal executive branch. 

Most public schools receive a vast majority of their funding from state and local property taxes, not from the federal government.  In fact, approximately 90 percent of their funding comes from these property taxes, and the federal government does not have authority to access or control said funds.  The Congressional Budget Office estimated that only 8.5% of the funding for K-12 public schools comes from the federal government. 

            The legislative branch is vested with what is colloquially called the “power of the purse,” or the power to tax and spend public money on behalf of the government.  Congress is therefore largely the entity tasked with how funds are allocated.  The framers of the Constitution considered it essential that Congress handle public funds instead of the Executive because Congress serves to represent the people. 

            There has long been overlap between the three branches of government and their duties, even with regard to funding.  The Budget and Accounting Act of 1921, for example, requires that the President submit a proposed federal budget to Congress for each fiscal year, but the President still requires Congress’s approval before the final budget can be passed. 

Even Congress cannot control the funds at this late stage, however, as the funds have already been appropriated for public schools.  The power that President Trump does possess in regard to school funding at this point is likely not much, and the grounds for withholding funding would be difficult to argue.  The Executive would have to establish that the states are not complying with the terms of the funding which has already been appropriated for their use in order to withhold it.  This means that funding given for a specific purpose can potentially be withheld if the Executive can persuasively argue that the school did not or is not going to be using the funds for that purpose.  For instance, the government generally provides funding for annual testing, and if the school is not going to administer the tests, then they are no longer entitled to those funds. 

This type of scenario provides some of the only precedent for the government to withhold funds.  One past example is the withholding of funds to ensure compliance with nondiscrimination statutes during desegregation efforts.  Schools refusing to comply have historically provided one of the few supportable scenarios for withholding federal education funds in the past.  Violation of antidiscrimination policies has largely been the rationale for any precedent for the refusal to distribute funds since. 

Any financial repercussion for schools that President Trump can impose are more likely to come in coronavirus relief packages.  It is more likely that schools not complying with his demand to reopen will not receive the funding allotted to pandemic relief.  Although the most recent relief package to be proposed has not yet been passed, the CARES Act passed in March provided $13 billion for school districts to cover costs related to the pandemic.  If President Trump issued an interim final rule, he could also block the funding from the CARES Act that schools have if they refuse to reopen.  This route is considered extremely likely to lead to litigation over the funds, however. 

In terms of practicality, funding for public schools does pass through the Department of Education.  The Department cuts checks based on the funding passed by Congress.  For this reason, President Trump or Secretary of Education Betsy Devos could order the Department to withhold checks for districts that refuse to open.  This, too, would undoubtedly lead to litigation. 

Now that the school year has started, schools have implemented different strategies for continuing education.  While some have in-person classes again, others have moved to being completely virtual or having some kind of hybrid process.  It is unlikely that the Trump administration will be withholding funds from schools at this point due to the limitations on his powers as the executive.  If another emergency relief package is passed, however, there is a chance that the President  has sufficient power to limit funds to schools without in-person classes, though such a move would probably be met with multiple challenges in court. 

With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.