The Impoundment Wars, Begun They Have. Plus, Wait, What Just Happened at UVA?
An accountability system, if you can keep it.
In the Richmond Times-Dispatch, Education Trust CEO Denise Forte and I discuss Virginia's new plan for school accountability, why it's needed, why it matters, and what needs to come next.
Impound Lots
And here we go. The Trump Administration, or at least parts of it, are itching to challenge key elements of the Congressional Budget and Impoundment Act of 1974. That law defines the budget process that, at least in theory, is in place today though Congress and White Houses of both parties frequently deviate from it. But until recently the second part of the law's title, the impoundment part, has been pretty settled. Congress appropriates money, the executive branch spends it. That part of the law was put in place because presidents would decline to spend money Congress had appropriated - this came to a head during the Nixon Administration. President Trump's budget director, Russ Vought, disagrees with this law and believes it is unconstitutional.
So yesterday, right at the deadline to send appropriated education funds to states, the Trump Administration announced it was withholding almost $7 billion in education spending in ways that line up with the administration's proposedbudget but not with action Congress already took on spending this spring as part of the continuing resolution the government is operating under. Yes, there have been cuts, but Congressionally mandated funding has been restored in various ways. This is an escalation.
Sure, some of this is Kabuki theater. This possibility was a poorly kept secret so no one is "surprised." Meanwhile, privately it's hard to find anyone who thinks Title II spending is all that effective or has even read any of the mandated reports on how it's used. Title II has fought off many proposals for reform. Of course, with Trump going after it, Title II will now be exalted as a pillar of the republic alongside the 13th Amendment, Social Security, or the Civil Rights Act. Welcome to 2025.
On the other—important—hand, Title III funding for English Language Learners is a key student support in some communities, as are funds for migrant students. More than a billion is at stake for those programs. It's not happenstance that supports for those kids are being targeted—it's ugly politics. They also targeted after-school programs. Bill Clinton successfully used after-school funding to bludgeon Republicans in budget fights, but that was a different time, and it's unclear if Democrats can make that message stick in today's environment.
Under current law this action is illegal. That's clear. Congress appropriated these funds, the executive branch is bound to spend them. The administration, however, thinks it can prevail in court with claims around executive authority and the constitutionality of the impoundment law. In their first term the Trump team tried to use deferral authority and other measures to delay spending but avoided a direct clash on the underlying questions. The Biden Administration subsequently slow walked some border wall spending but likewise did not outright challenge Congress' authority. Ordinarily, Congress would be expected to defend its spending authority but here we are.
The action is annoying red states and blue ones, but as with previous similar episodes expect blues to push back publicly, and obviously in court, while many red states quietly hope they prevail but will keep their heads down. One reason? Some of this money funds state operations so it's not purely partisan at all.
Also worth noting: The Department of Education is hanging back on this - deferring all questions from media or the Hill to the White House's Office of Management and Budget. It's illustrative of this dynamic of fractured views around the administration around the efficacy of various things.
Bottom line: whatever you think of these programs, or federal spending more generally, government requires adherence to law, process, and predictability. As with much of what DOGE did this action is none of these things. The administration could have tested their novel legal theory in a more modest way. Instead, as is their way, politics and chaos.
Wait, Whathoo?
While we're on process...
I'm disappointed to see Jim Ryan step down from UVA as its president—perhaps foremost as a UVA parent. When you drop your kids off for college there is a lot of emotion, but under Ryan's leadership I had a good sense that even though the school is large, it would get small fast. He was genuinely striving for a school that is good as well as great. His welcome talk to parents is a masterclass on mixed emotions with some good advice sprinkled in. Every student, parent, and school should be so lucky.
(If you want to read a lot of back and forth on this, James Bacon—who has a dog in this fight—is nonetheless to his credit running commentary on all sides, including several former state legislators and the former head of the Virginia Democratic Party.)
I'm also disappointed as someone with history at the school: graduate school, teaching there, 12 years on what was then called the Curry board, involvement in some other projects. Ryan wasn't perfect—the university has some real problems—and the reaction to missteps shouldn't be to reflexively canonize someone. But he was certainly a top-tier university president.
So, speaking of deification, Ryan resisted efforts to erase Thomas Jefferson from UVA, while also making clear that Jefferson was a complicated person. He resisted the stridency of Jefferson’s intractable critics and uncritical fans. In other words: nuance that pleased few. Likewise, here he is 11 years ago pushing back on efforts to disinvite then–Colorado state legislator (now Denver Mayor) Mike Johnston from a Harvard commencement while Ryan was dean. Yes, Mike Johnston! That was a sign of the bonkeroo things to come in the culture wars, but Jim’s instincts were sound. Despite some real bumps and some issues, there is a reason UVA ranked high on FIRE's free speech ratings.
(Full disclosure, he's been a guestblogger here, and been featured in Friday Fish Porn more than once).
Anyhow, this situation is troubling for a few reasons. For starters, there hasn’t been a formal, transparent process about what the specific issues are at UVA. I don’t take much convincing that there probably are some, it's a large school. But I don't know. You don't know. And most of the people sounding off don't know. Few universities don’t have challenges right now, and it’s reasonable to ask people to, you know, follow federal law. Some of this is also tied up, though, in competing interpretations of where the legal lines actually are. Some in the Trump Administration consider anything promoting diversity illegal under the Supreme Court’s affirmative action decision. Others think it’s only activities that clearly discriminate.
I prefer a more narrow interpretation. For instance, I think UVA can do more for first gen students than it does now, and don't see that as in conflict with SFFA v. Harvard. (A few months ago Bellwether and PPI hosted an event looking at those questions.)
But you can’t just have insinuations and forced resignations directed from the Department of Justice. The lack of transparency here is a tell. If you’re confident in your case—both legally and in the court of public opinion—then make it in public.
On questions like this, process matters—especially considering this is a public university. You need evidence and findings, which can be challenged or accepted. A settlement or litigation to reach one. If the accusation is just that UVA is too lefty, well, you’ll have to cashier almost everyone in higher ed this side of Hillsdale and the Citadel—and that’s not against the law anyway. The issue is specific practices. Bring receipts.
So what doesn’t play? Threatening public jobs with letters that (as far as I know) are still not in the public domain, and also preempting or interfering with Virginia’s own governance process for its public universities. It’s a terrible precedent that should be resisted—not even tacitly validated and certainly not endorsed.
More generally, this isn’t about curbing the excesses—and yes, in some instances, illegality—of left-wing DEI efforts. It’s about just swapping that out for an also heavy-handed, illiberal right-wing version of DEI.
That’s no good, and doesn't have to be the choice.