When the founding fathers drafted the founding documents of the United States in the 1780s, they made sure to enshrine free speech, religious freedom and the right to bear arms. They also took the time to set out clauses preventing states from coining their own money and prohibiting citizens from accepting noble titles – while enabling them to become pirates on behalf of the country.

Yet there is not one single mention of education. Not in the Constitution, the Bill of Rights, or in any of the 17 later amendments. And since one of those amendments – the 17th – stipulates that all powers not specifically granted to the federal government default to the states, education has always been understood as a state responsibility.

Prior to 1972, the central government only had a commissioner of education within the Department of the Interior, which was designed purely to collect data on schools. That was then replaced by an Office of Assistant Secretary for Education within the Department of Health, Education and Welfare. But then, in 1979, a fully fledged federal Department of Education was established.

The department’s creation was a “straight-up political” move, according to Stephen Joel Trachtenberg, the former president of George Washington University, who was the special assistant to the commissioner of education in Lyndon Johnson’s administration. It was made in fulfilment of a campaign pledge that Jimmy Carter had made to the teachers’ unions during his successful 1976 presidential election campaign.

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But if political debt led to the department’s creation, it could also lead to its destruction, according to Trachtenberg. He sees Trump’s requiring his education secretary, Linda McMahon, to shut down the department “to the maximum extent appropriate and permitted by law” as a repayment for support from a right-wing establishment infused with “paranoia” that big government wants to seize control of school curricula. Trump said on the campaign trail that removing the Department of Education (typically abbreviated to “ED” to avoid confusion with the Department of Energy) would “drain the government education swamp and stop the abuse of your taxpayer dollars to indoctrinate America’s youth with all sorts of things that you don’t want to have our youth hearing”.

Trump will need congressional approval to shut down the department entirely and will likely face a barrage of legal challenges along the way. Nonetheless, his order has prompted uproar across much of US education.

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Pedro Noguera, the Emery Stoops and Joyce King Stoops dean of the University of Southern California’s Rossier School of Education, said the ED was primarily created by Carter to safeguard the rights of disadvantaged children. “To just dismantle [it] and leave it to the states is basically giving up any leadership from the federal government in education,” warned Noguera.

“We have a country with a lot of inequality and the southern states in particular have been notorious for underserving minority children, over the years. If that happens, what does the federal government do?”

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Regarding higher education, the department’s are data collection; enforcing student protections, including against discrimination; providing resources to increase access for disabled and disadvantaged students, such as Pell Grants; overseeing various consumer protections for students; and administering student loan programmes.

If those programmes were to default to the states to run, “they simply will be cut away. Nobody’s going to step in,” Trachtenberg predicted, citing many state governments’ perilous financial positions.

In reality, Trump has indicated that the Department of Education’s grant- and loan-giving functions will be taken on by another government department. And some on the right believe that this will result in a better service.

“Washington mainly runs student aid programmes, and by most indications [it does so] poorly,” said Neal McCluskey, director of the Center for Educational Freedom at the libertarian Cato Institute. “It does not have expertise in how to actually provide higher education.”

Moving student loans to a department that specialises in financial instruments should make their administration more efficient and effective, he predicts.

But Trachtenberg’s concern is that “the interest and the passion for [education], the commitment to it, is being drained” from the government by the attacks on the Department of Education, which have already resulted in .

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“My guess is that in the future, fewer and fewer initiatives on behalf of education will come out of the administration, out of the Congress, and that is what you have to worry about,” said Trachtenberg. “If you don’t have the visibility of a department and a secretary, you could lose the focus, the interest and the federal dollars.”

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The Canadian system is also routinely criticised for lacking a proper advocate at the federal level, as well as for lacking a national data infrastructure on higher education. The constitution of the US’ northern neighbour specifically designates education as a provincial concern and the country has never established a federal education department.

Canada’s constitutional formulation needed to reflect its bilingual and binational nature, said Elizabeth Buckner, associate professor of higher education at the University of Toronto. “Devolving issues of social policy, including education, to the provinces allowed provinces to maintain their different approaches and, in particular, allowed the French minority to maintain autonomy in cultural domains.”

Canadian provinces have “fiercely protected” their authority ever since the constitution was ratified, added Glen Jones, professor of higher education at Toronto. “It would be difficult to imagine any national party advocating for some sort of strong national presence in this area.”

Ottawa is involved in a variety of policy areas that intersect with higher education, especially research and innovation funding and internationalisation. But there is still little federal involvement in key issues such as financial assistance, said Jones.

Nevertheless, while Canadian provinces have developed the structures and expertise to administer financial aid and internationally standardised assessment over time, “It would be hard to imagine every US state developing a state-run financial aid programme for post-secondary students from scratch, and then coordinating with all other states when a student studies out of state, as is currently done in Canada,” said Buckner.

Moreover, while there are often calls for greater national coordination, Jones said Canada’s decentralised approach has facilitated certain types of policy experimentation. And Trachtenberg sees this as being a possible upside of a heavier reliance in the US on differing state structures, particularly at the grade school level.

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“You have 50 experiments going on at any given time, and to the extent that schooling is different, and curriculum is different, you do have an opportunity to see which are better or which are worse, and to then adapt and borrow ideas,” he said. “It’s not all doom and gloom, but [the possible closure of the Department of Education] is not basically a good thing.”

It isn’t inevitable that a country whose constitution frames education as a devolved competency should refrain, forever and always, from accreting considerable federal responsibilities for universities.

Around 100 years after the US framers left education to the states, the same thing happened in Australia. The country’s states and territories still run schools today, with some funding coming from the Commonwealth (national) government. But higher education has essentially become a federal concern, with what Andrew Norton, professor of higher education policy at Monash University, calls a “single national system”.

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Although public universities in Australia are created by state acts of parliament, the vast majority of funding for them is federal, he pointed out. Former prime minister Tony Abbott did argue that states and territories should retain primary responsibility for running and funding public schools, but there has never been a mainstream campaign to abolish the federal education department, he said.

“In a system like Australia’s, there is always going to be tension about who does what. But I think the dominant trend has been towards centralisation…without proposing a complete reversal of the original constitutional intention,” said Norton. In that sense, there is “bewilderment” in Australia at Trump’s attempt to trample on federal involvement in higher education.

Gwilym Croucher, associate professor at the University of Melbourne and deputy director of the Centre for the Study of ����Vlog, agreed that Australia was in a very different place from the US on higher education oversight – not least because of its much smaller population.

“Some of the state university systems in the US are very large and so are more akin to Australia in terms of the number of students they teach, [or the] scale of their research output,” he said.

He added that there would be no obvious benefits for students, universities, or even the federal budget bottom line if the Department of Education were closed because the Commonwealth government would then “need to fund the states to support universities if Australia were to continue to have public universities at all. It is hard to see how this would save any significant amount of funding in the long run.”

Yet in a country as wary as the US is of big government, the “constitutionalist argument” looms large, according to Frederick Hess, senior fellow and director of education policy studies at the conservative American Enterprise Institute (AEI).

“Washington, in creating an [education department] and creating programmes which start to direct the way schools or colleges operate, has overstepped its constitutional bounds. And this is problematic for those who believe limited government is good in its own right,” he said.

Rather than protecting the civil rights of children and young people, as the teachers’ unions wanted, Carter, in reality, merely succeeded in creating a “bully pulpit in a one-stop-shop for those who wanted to influence policy”, Hess added.

Polls suggest the American people dislike the ED more than almost any other federal agency, but there is a large partisan divide. In a , 64 per cent of Republicans viewed the department unfavourably, while 62 per cent of Democrats viewed it favourably. Yet while Noguera insists that the only reason for closing the ED is “ideological”, Hess believes that, in addition to the constitutional case, there is a more pragmatic argument, based on the department’s facilitation of what – former UK education secretary Michael Gove – the “blob”: powerful education interest groups, excessive regulation and red tape.

In Hess’ view, universities are particularly reluctant to see the department disappear because they have developed a “deeply symbiotic relationship” with it. “The ED is basically a giant money machine for America’s colleges and universities, and so it’s not so much that they’re supportive of [the department] as that they feel like it largely exists to service their institutions,” he said.

However, in abolishing the department, “you have to make sure you’re actually streamlining what’s happening,” Hess cautioned. “The goal can’t just be to not have a department. One challenge of undoing a half-century of red tape is that you actually need to either change the laws or change the rules on the books – and that requires staff and expertise and time.”

In that sense, Hess warns that closing the department risks being a merely symbolic gesture. And he believes that other policy changes have the potential to make more real-world impact.

“The reality is if you left the department intact and you make dramatic changes to student lending…or if you radically overhaul accreditation, like the administration is apparently poised to do…those acts would have profoundly more impact on colleges across the US,” Hess said.

For his part, Trachtenberg agrees that symbolism is a strong driving force behind the Republican urge to abolish the ED – and might also drive its resurrection one day. Yet even though its loss will mean “youngsters and college students are going to be hurt”, Trachtenberg does not have high hopes of an eventual resurrection.

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“This ED has been a contentious creation since its establishment, and my guess is nobody’s going to want to take it on again because it’ll be a big fight,” he said – “unless they decide that it’s specifically a fight they want to take on again for the symbolic reason of being in a post-Trump administration.”

patrick.jack@timeshighereducation.com