Kaul, 18 other AGs sue Trump over K-12 funding

State attorney general Josh Kaul and the attorneys general of 18 other states have sued the Trump administration over the U.S. Department of Education’s threat to withhold federal funding after those states’ education agencies refused to certify compliance with federal civil rights laws.

The protesting states say the administration’s definition of Diversity, Equity and Inclusion (DEI), which it declares violative of federal law, is undefined and that its interpretations of civil-rights laws are themselves noncompliant with federal procedural statutes. The complaint also contends that the administration does not specify what conduct it deems illegal.

Specifically, on April 3, the U.S. Department of Education (DOE) sent letters to state education agencies (SEAs) requiring them to certify their compliance with Title VI of the Civil Rights Act as well as with the responsibilities outlined in the U.S. Supreme Court decision in Students for Fair Admissions v. Harvard, which outlawed race-based affirmative action programs. 

“Federal financial assistance is a privilege, not a right,” the DOE acting assistant secretary for civil rights, Craig Trainor, said after the letter was sent. “When state education commissioners accept federal funds, they agree to abide by federal anti-discrimination requirements. Unfortunately, we have seen too many schools flout or outright violate these obligations, including by using DEI programs to discriminate against one group of Americans to favor another based on identity characteristics in clear violation of Title VI.” 

Trainor said the administration was also ensuring that states understand — and comply with — their existing obligations under Students for Fair Admissions v. Harvard. 

“As chief justice Roberts wrote, ‘Eliminating racial discrimination means eliminating all of it,’” he said. “No student should be denied opportunities or treated differently because of his or her race. We hope all state and local education agencies agree and certify their compliance with this legal and constitutional principle.”

Wisconsin Department of Public Instruction (DPI) superintendent Jill Underly refused. 

In an April 18 letter, the DPI’s general counsel, Benjamin Jones, in a final response, enclosed signed, certified assurances from each of the 460 local educational agencies (LEAs) in the state that each would “comply with all applicable statutory and regulatory requirements, including, but not limited to, applicable provisions of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the Family Educational Rights and Privacy Act (FERPA).”

What the DPI did not do was provide any certification that the districts were complying with Students for Fair Admissions v. Harvard — the administration’s second specific request — and it also did not enclose any certification that the DPI itself was complying with federal law and the court decision. 

On April 25, Wisconsin and the other states filed a lawsuit, with Kaul saying the DPI’s programs were lawful and promoted equal access to education in K-12 classrooms across the nation. Kaul argued that the Trump administration is demanding compliance with its interpretation of the laws, which he said were not supported by any evidence.

“On April 3, 2025, the Department of Education informed state and local agencies that they must accept the Trump administration’s new and legally incoherent interpretation of Title VI of the Civil Rights Act of 1964 with respect to diversity, equity, and inclusion efforts — or else risk immediate and catastrophic loss of federal education funds,” Kaul said as he filed the lawsuit. 

Kaul said Wisconsin could not comply with the administration’s certification demands because there was no lawful or practical way to do so given the department’s vague, contradictory, and unsupported interpretation of Title VI.

“Funding for our kids’ educations shouldn’t be put in doubt in order to advance an ideological agenda,” Kaul said. “We’re seeking to stop the Trump administration from unlawfully withholding vital education funding. This step from the Trump administration would be seriously misguided even in isolation, but this isn’t isolated. We’ve also joined multi-state suits challenging the attempt to dismantle the Department of Education and the termination of teacher training grants. It’s past time for Congress to stand up for our kids and help stop the Trump administration from continuing to attack education.”

For now, a temporary injunction issued in another lawsuit has blocked the administration from withholding any funds, but the legal battles are far from over.

The state’s position

According to the lawsuit, the administration is acting unlawfully and in doing so is imperiling $13.8 billion in federal education funds.

“Plaintiff states rely on these funds, and they would be unable to replace the federal funding from another source,” the complaint states. “The results would be catastrophic for plaintiff states’ students from kindergarten through high school. For instance, loss of special education funding would devastate schools and districts’ abilities to serve students with disabilities.”

On April 3, the lawsuit asserts, the DOE departed from a longstanding and statutorily-mandated process by directing SEAs and LEAs to complete a novel and unlawful certification that would place excruciatingly difficult burdens on plaintiff states.

“Specifically, the certification and its accompanying email directive imposed new onerous conditions on plaintiff states in order to continue to receive these federal funds, including by putting them in a vulnerable position to indicate agreement with [DEA’s] new, vague, confusing, and incorrect interpretation of Title VI with respect to diversity, equity, and inclusion; requiring the SEAs to affirmatively investigate whether LEAs are supporting or providing for diversity, equity, and inclusion in their schools; report on every LEA’s compliance with [DEA’s] unsupported position that ‘certain’ undefined diversity, equity, and inclusion programming, instruction, and curriculum is prohibited by Title VI; and develop plans to align every LEA with the [DEA’s] new, ambiguous, and unsupported interpretation — all within a matter of days,” the complaint states.

Through the unlawful certification demand, the lawsuit alleges, the DOE implemented a broad directive issued by the new administration through a series of executive orders to eliminate a category of diversity, equity, and inclusion school programs it did not define, but which it claimed constituted illegal discrimination under federal law. 

“For instance, upon taking office, Donald Trump issued executive order No. 14173, ‘Ending Illegal Discrimination and Restoring Merit-Based Opportunity,’ and executive order No. 14151, ‘Ending Radical and Wasteful DEI Programs and Preferencing,’” the complaint states. “President Trump has added still more executive orders on this topic, including executive order No. 14190, ‘Ending Radical Indoctrination in K-12 Schooling.’”

Although presented in a variety of ways across those executive actions, the complaint continues, the presidential directive has two basic components. 

“First, the president deems many, if not all, diversity, equity, and inclusion programs — whether commonly understood as DEI programs or falling within the administration’s unspecified guidelines — unlawful under federal civil rights law,” the complaint states. “The president has reached this conclusion by way of an unsupported expansion of the Supreme Court’s interpretation of Title VI in the college admissions context in Students for Fair Admissions,

Inc. v. President & Fellows of Harvard College.” 

Second, the complaint adds, Trump instructs agencies to punish institutions that have such purportedly unlawful programs by withdrawing federal funding immediately, including K-12 schools.

“By its April 3 agency action, DEA implemented that directive in a manner that is unconstitutional and otherwise unlawful,” the complaint alleges. “This implementation also sets up plaintiff states to lose their federal funding and threatens other punishment notwithstanding their certification of compliance with Title VI.”

Set in legislative stone

The DEA’s authority to interpret and enforce Title VI is statutorily prescribed, the complaint asserts. 

“[DEA] can only engage in enforcement and withholding based on rules that have gone through the notice and comment process,” the complaint asserts. “Even then, it can only withhold funds after completing an extensive iterative process, including conducting an appropriate, unbiased investigation; making a determination that an SEA or LEA is not in compliance with Title VI and its implementing regulations; offering an opportunity for an SEA or LEA to review a findings letter; engaging in a voluntary resolution process; notifying Congress; and waiting 30 days.”

What it cannot do, the lawsuit contends, is weaponize an intentionally vague, unlawful interpretation of Title VI through wholesale and sudden termination of federal funds against plaintiff states that cannot lawfully or practically comply with unprecedented agency demands, and without following the aforementioned procedural requirements.

In addition, the complaint asserts, the states did reaffirm their respective compliance after the April 3 agency letter, as well as with lawfully issued implementing regulations, and pointed DOE to valid and current in-effect certifications already in the department’s possession.

“However, plaintiffs declined to certify compliance according to the terms of the April 3 agency action because that action was contrary to law, unlawful, unauthorized, and unconstitutional,” the lawsuit asserts. “As a result, plaintiffs face the immediate withdrawal of federal education funding, both by the stated terms of the April 3 agency action and consistent with the administration’s actions with respect to other educational institutions across the country.”

To be clear, the lawsuit asserts, the case does not challenge the federal government’s ability to lawfully enforce Title VI. 

“The extraordinary April 3 agency action, implementing the presidential directive, is not lawful Title VI enforcement,” the complaint asserts. “Rather, the April 3 agency action is subjective and illegal punishment for not acceding to an agenda to eliminate diversity, equity, and inclusion of any kind in schools — even though federal funding and civil rights statutes require public education to be open and welcoming to all regardless of protected characteristics, and inclusive and equitable, especially for those students who have disabilities and need accommodations.”

In the complaint, the states assert that the DOE and Trump have repeatedly failed to define the conduct that they seek to punish or prohibit, omitting a definition of the phrase, “diversity, equity, inclusion,” or the acronyms, “DEI,” or “DEI program.”

“The DOE makes these statements notwithstanding that countless programs that support diversity, equity, or inclusion in schools are legal and, in fact, required by federal civil rights and funding statutes,” the complaint states.

For example, the complaint points to the Rehabilitation Act of 1974 and the Americans with Disabilities Act, which the complaint states were established to end exclusion of students (and others) with disabilities in institutions, and to ensure inclusion and equity. Finally, the lawsuit alleges that the proposed defunding based on the April 3 letter violates the Administrative Procedures Act because it does not follow the notice-and-comment process set out in the APA.

“While [DOE] recognized that its interpretation of ‘illegal DEI’ and SFFA, as set forth in its Dear Colleague Letter and FAQ, had ‘no force or effect of law,’ it nevertheless issued the April 3 agency action requiring plaintiff states to certify under penalty of federal funding withdrawal and other punishments,” the complaint states. “[DOE] has thereby attempted to impose a new basis for Title VI enforcement and withholding, which is a legislative rule, not an interpretive rule or a general statement of policy. … Using the April 3 agency action to issue a legislative rule, defendants have failed to follow the procedural requirements of the APA.”

WILL answers

As of this writing, the government had not had a chance to respond to the states’ complaint, but, prior to the filing of the lawsuit, on April 22, the Wisconsin Institute for Law & Liberty (WILL) made the case that the DPI needed to heed the directive and certify compliance.

For one thing, perhaps foreshadowing the formal legal response to the lawsuit, WILL attorneys Dan Lennington and Cory Brewer wrote to Underly that the administration was on solid legal footing.

“DPI’s stated refusal to submit this certification is not only legally unsound, but also an abdication of its duty to the students and school districts it should be supporting,” the attorneys wrote. “The ‘Request for Certification’ is entirely reasonable. It arises under executive order (EO) 14190 which is entitled ‘Ending Radical Indoctrination in K-12 Schooling.’” 

As WILL observed in the letter, the executive order was issued in January 2025 and directed federal agencies to withhold funding from K-12 schools that promote racially discriminatory ‘equity’ ideologies and to assess whether recipients of federal funds were complying with applicable non-discrimination statutes, including Title VI of the Civil Rights Act of 1964. 

“Title VI is a bedrock of federal civil rights law,” Lennington and Brewer wrote. “It prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin. Compliance with Title VI is not optional — it is a longstanding legal condition for receiving federal funds.” 

What the DEA was requesting, the attorneys continued, was neither novel nor burdensome.

“It is a reminder of legal obligations and request for certification under Title VI and SFFA v. Harvard,” they wrote. “Title VI assurances are already required by law as a condition of receiving federal funds. Refusal by DPI to sign the certification form places those funds in jeopardy — for seemingly political reasons.”

For one thing, the attorneys asserted, DPI has stated that the certification process circumvents federal rulemaking and infringes on local control, but that objection was unsupported by law or logic.

“[DEA] is not creating new substantive obligations; it is merely confirming that Wisconsin is following the law — something DPI and school districts are already required to do under existing federal statutes and regulations,” they wrote.

The intent behind the executive order and the certification requirement is straightforward, the attorneys asserted. 

“It seeks to ensure that public education focuses on student achievement, not radical ideology,” they wrote. “DPI’s refusal to cooperate with this lawful directive undermines that goal and threatens real harm to students across the state.”

According to the attorneys, WILL has recently documented multiple instances of Title VI violations in Wisconsin school districts, making federal oversight more, not less, urgent. 

“Refusal by DPI to submit the certification form is particularly alarming in light of the instances of racial discrimination right here in our state,” they wrote. “In the Green Bay Area Public School District, a student with dyslexia was recently denied access to reading interventions because he is white. He was denied essential learning supports due to a policy saying the school prioritizes additional help for students based on race.”

That is a textbook violation of Title VI, the warning letter stated.

“In the Wauwatosa School District, the district announced plans to shut down its high-performing charter school, Wauwatosa STEM, and two additional STEM programs and opportunities, because the student populations at these schools were too white,” the attorneys wrote. “These actions demonstrate a willingness to sacrifice academic achievement for racial balancing, in clear violation of federal law.”

Those are not isolated nor are they hypothetical, the attorneys wrote. 

“They are real and recent, and they occurred under the supervision of DPI,” they wrote. “In this context, DPI’s refusal to confirm compliance with Title VI is not only indefensible, but also deeply troubling. If DPI does not reverse course by April 24, more than half a billion dollars in federal education funding could be withheld.”

Those funds include essential Title I dollars that support schools serving high percentages of low-income students, the attorney continued. (A federal injunction has blocked the suspension of funds for now.)

“For some school districts and independent charter schools, federal funds make up more than 15 percent of their total budgets,” the letter stated. “Loss of these funds would not be a minor disruption — it would be a crisis.”

Services for students with disabilities, English language learners, and low-income families would be slashed, Lennington and Brewer wrote. 

“School districts would be forced to cut staff, eliminate programs, and likely seek additional taxpayer support via referenda,” they asserted. “The consequences of DPI’s legal gamble will fall hardest on the students and families most in need.”

The attorneys said DPI has spent years lobbying the Wisconsin legislature for increased K–12 funding. 

“It is therefore inexplicable that the agency would now take a position that threatens existing funding, all for the sake of avoiding a basic certification of compliance with the law,” they wrote. “DPI’s refusal to sign a Title VI certification is made even more problematic by its own conduct. The agency continues to promote race-conscious materials and programming that raise serious Title VI concerns.”

DPI cannot simultaneously claim that DEA’s certification request is overreaching, while also endorsing practices that may violate the very law in question, Lennington and Brewer wrote.

“This contradiction only underscores the necessity of federal oversight and DPI’s obligation to affirm its compliance,” they wrote. “This is not a political issue. It is a legal and moral one. DPI’s refusal to submit the required Title VI certification violates its legal obligations and jeopardizes the futures of students across Wisconsin.”

DPI should immediately reverse course, submit the required certification, and publicly affirm a commitment to treating individuals in educational settings equally without regard to race, they concluded. 

“Compliance with federal civil rights laws is not optional,” Lennington and Brewer wrote. “Refusing to confirm that Wisconsin is following the law is unjustified and unacceptable.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.