Jan Resseger is a determined and purposeful writer.
On Tuesday, Part 1 of this post explored the Trump Administration’s seizure of the Congressional “power of the purse” as part of a strategy to accomplish the President’s goal of shutting down the U.S. Department of Education by firing hundreds of the Department’s staff who administer and oversee enormous grant programs like Title I and special education programs funded by the 1975 Individuals with Disabilities Education Act, along with many other essential programs that protect students’ rights and fulfill the Department’s mission of ensuring that children across all the states can equitably have a quality public school education. Part 1 also examined how the U.S. Supreme Court has shunted many of the legal challenges filed against Trump administration onto a “shadow docket” of temporary decisions with a long wait for a hearing on their merits and a final ruling by the Supreme Court on their legality.
Today, Part 2 will examine three primary examples of what appear to be the Trump administration’s shameless violation of the core Constitutional principles we have long valued for protecting the rights of children and their teachers in our nation’s system of K-12 public schools.
The First Amendment Protection of Freedom of Speech — Beginning in February and continuing through the year, the Trump administration has been pressuring colleges and universities and K-12 public schools to adopt its own interpretation of the Civil Rights Act of 1964 and the administration’s idiosyncratic interpretation of a 2023 Supreme Court decision in Students for Fair Admissions v. Harvard. While most experts believe that Students for Fair Admissions was a narrowly tailored decision to eliminate affirmative in college admissions, the Trump administration has alleged it also bans all “diversity, equity, and inclusion” programming and policy in K-12 public schools and in higher education.
In August, the NY Times Dana Goldstein ideology the Trump administration has been trying to impose on educational institutions and teachers: “While there is no single definition of D.E.I., the Trump administration has indicated that it considers many common K-12 racial equity efforts to fall under the category and to be illegal. Those include directing tutoring toward struggling students of specific races, such as Black boys; teaching lessons on concepts such as white privilege; and trying to recruit a more racially diverse set of teachers. The administration has also warned colleges that they may not establish scholarship programs or prizes that are intended for students of specific races, or require students to participate in ‘racially charged’ orientation programs… The administration has also argued that because the Supreme Court overturned affirmative action in college admissions in 2023, all racially conscious education programs are illegal.”
Can the Trump administration impose its ideology on educational institutions and get teachers punished or fired if they cover unpleasant parts of our nation’s history? Many experts call this a violation of the First Amendment’s protection of free speech. To define how the First Amendment protects the freedom of speech in educational institutions, Yale Law School professor Justin Driver quotes the words of Supreme Court Justice Robert Jackson in the 1943 Supreme Court decision in West Virginia State Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or any other matters of opinion or force citizens to confess by word or act their faith therein.” (Justin Driver, The Schoolhouse Gate, pp. 65-66)
The Vagueness Doctrine — In addition to the violation of the right to freedom of speech, there is another serious legal problem in the Trump administration’s efforts to scrub “diversity, equity, and inclusion” from K-12 public schools and from the policies of the nation’s universities. Writing for the NY Times, Matthew Purdy explored how the Trump administration’s vague rules, mandates and executive orders are designed to frighten people into complying:
“Federal District Court judges across the country and across the political spectrum… (have faulted) the administration for using broadly cast executive orders and policies to justify ‘arbitrary and capricious’ actions. Many of these judges have explicitly invoked something called the vagueness doctrine, a concept that for centuries has been foundational to American law. The notion is simple: Unless laws are clearly stated, citizens cannot know precisely what is and is not permitted, handing authorities the power to arbitrarily decide who is in violation of a law or rule. Vagueness has long been seen as a clear divide between democracies run by laws and autocracies run by strongmen….”
The Cornell Law School Legal Information Institute explains how the vagueness doctrine protects due process of law: “Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. The Supreme Court stated in Winters v New York, that U.S. citizens should not have to speculate the meaning of a law due to its vagueness, the law should be clear on its face.”
Purdy adds that many of Trump’s educational executive orders and the rules being imposed by Linda McMahon’s Department of Education ought to be declared void for vagueness. Without being sure precisely what steps are required, universities have settled with the administration by making financial deals to protect their research funding; public school administrators have changed bathroom policies for trans students; and teachers have felt afraid to teach honestly about our nation’s history. Purdy describes “Valerie Wolfson, the 2024 New Hampshire history teacher of the year… whose post-Civil War curriculum includes Reconstruction, the rise of the K.K.K. and the Jim Crow era. ‘I do not know how I could discuss them without creating a risk of being accused of presenting a narrative of the United States as racist,’ she says… None of Donald Trump’s edicts have deployed vagueness as effectively as his attack on D.E.I. … The line between what is and isn’t allowed may be vague, but the penalty for crossing it is certain. The version cooked up by the Department of Education’s Office for Civil Rights is a textbook case… The message—and the threat—from the Department of Education was received loud and clear across the country.” (This blog covered Purdy’s article in more detail.)
Birthright Citizenship — One of President Trump’s executive orders stands out in its utter contradiction of the language of the Fourteenth Amendment. In an executive order last January, the President ended birthright citizenship. Birthright citizenship does not, thank goodness, deny any child’s right to public education because a 1982 Supreme Court decision in Plyler v. Doe does protect the right for every child residing in the United States to a free public education. However without the protection of birthright citizenship, children in this country are denied the protection of virtually all other rights.
In February a Federal District Court judge temporarily stayed Trump’s executive order banning birthright citizenship; the case was appealed; and later on June 27, the U.S. Supreme Court released a final decision. However the Supreme Court Justices twisted the meaning of the case without addressing the core issue of birthright citizenship itself. Instead the justices turned the decision into a ruling on procedure—declaring that local Federal District Courts cannot block the imposition of federal policy nationwide.
For Scotus Blog, Amy Howe explains how today’s Supreme Court abrogated its responsibility by ignoring the core issue in the birthright citizenship case: “(O)n July 23, a divided panel of the U.S. Court of Appeals for the 9th Circuit (had) ruled that the executive order ‘is invalid because it contradicts the plain language of the Fourteenth Amendment’s grant of citizenship to ‘all persons born in the United States and subject to the jurisdiction thereof ‘.”
Responding to the decision of the appeals court, U.S. Solicitor General D. John Sauer failed to ask the justices to fast-track its petition, urging the Supreme Court to review the ruling. Howe adds: “Although Sauer had the option to ask the court to fast-track its petition, he chose not to. Accordingly, if the justices decide to take the case… it will likely schedule oral arguments for sometime in 2026 and reach a decision at the end of the… term—most likely in late June or early July.”
All three of these serious Constitutional principles remain at issue today in Trump’s attempt to deny the rights of educators and undermine the protection of students’ rights.
Disciplining ourselves to name and and understand what appear to be troubling legal violations by the Trump administration is an important step toward building the political will for reform.




