Real Safety AI Foundation / Research

Disability, Accessibility, and Civil Rights

The Partnership Pretext: Statutory Vesting, the Administrative Procedure Act, and Disability Rights Enforcement

Publisher: Real Safety AI Foundation

Working paper. Not peer reviewed.

Written
June 2026
Version
v0.3
Pages
18
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Abstract

On June 16, 2026, the Department of Education announced that it would move the Office of Special Education and Rehabilitative Services to the Department of Health and Human Services and the Office for Civil Rights to the Department of Justice. The administration called these moves partnerships and framed them as routine internal housekeeping that would change no substantive rights. This Article argues that the relocations are unlawful under the Administrative Procedure Act and that the partnership label is the legal defect, not the cure. Congress did not merely permit these offices to sit inside the Department of Education. It commanded it. The Individuals with Disabilities Education Act requires that the special education office exist within the Department of Education, and the Department of Education Organization Act of 1979 placed the Office for Civil Rights inside the Department by statute. An agency may act only within the authority Congress confers, and the executive holds no freestanding power to relocate statutory functions across cabinet departments without congressional consent. The agreements concede the point on their face: the Department must retain management and leadership of these programs because the law requires it. That concession converts the housekeeping defense into an admission. The relocations are therefore reviewable as action in excess of statutory authority and as arbitrary and capricious action resting on a pretextual rationale, the latter governed by Department of Commerce v. New York. The Article further shows that the circumstantial record, the simultaneous bundling of the two moves, the routing of disability functions to the destinations least suited to enforce them, and a published blueprint to convert the disability entitlement into

Keywords

  • Administrative Procedure Act
  • ultra vires
  • 20 U.S.C. 1402
  • Department of Education Organization Act
  • Office for Civil Rights
  • pretext
  • Department of Commerce v. New York
  • Village of Arlington Heights
  • Section 504
  • ADA Title II
  • IDEA

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Suggested citation

Gilly, Travis. "The Partnership Pretext: Statutory Vesting, the Administrative Procedure Act, and Disability Rights Enforcement." Real Safety AI Foundation Working Paper, June 2026. https://realsafetyai.org/research/8t99n6/

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References (29)

This paper cites its sources in footnotes. Each authority is listed once, where it is first cited, with its footnote number.

  1. Footnote 1.Jonaki Mehta & Cory Turner, Trump Further Guts Education Dept. by Shifting Oversight of Special Ed, Civil Rights, NPR (June 16, 2026), https://www.npr.org/2026/06/16/nx-s1-5717030/special-ed-civil-rights-education-department.
  2. Footnote 4.20 U.S.C. §1402(a) (“There shall be, within the Office of Special Education and Rehabilitative Services in the Department of Education, an Office of Special Education Programs, which shall be the principal agency in the Department for administering and carrying out this chapter …concerning the education of children with disabilities.”).
  3. Footnote 4.The Office of Special Education and Rehabilitative Services itself is established within the Department by 20 U.S.C. §3417.
  4. Footnote 5.20 U.S.C. §3413(a) (“There shall be in the Department an Office for Civil Rights, to be administered by the Assistant Secretary for Civil Rights ….”)
  5. Footnote 5.Department of Education Organization Act of 1979, Pub. L. No. 96-88, §203, 93 Stat. 668, 673.
  6. Footnote 6.La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act …unless and until Congress confers power upon it.”).
  7. Footnote 7.5 U.S.C. ch. 9 (§§901–912)
  8. Footnote 17.The Heritage Foundation, Mandate for Leadership: The Conservative Promise (2023) (Project 2025)
  9. Footnote 19.20 U.S.C. §3417.
  10. Footnote 24.Protecting Students with Disabilities Act, H.R. 2333, 119th Cong. (2025–2026) (findings) (“Section 1402 of the Individuals with Disabilities Education Act explicitly states that the Office of Special Education Programs shall be housed within the Department of Education …. The executive branch does not have the unilateral authority to alter this statutory framework.”).
  11. Footnote 25.5 U.S.C. §905(b)
  12. Footnote 25.Cong. Rsch. Serv., R48763, Presidential Reorganization Authority (2025).
  13. Footnote 26.5 U.S.C. §905(a)(1), (4).
  14. Footnote 27.FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000).
  15. Footnote 28.U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565–68 (D.C. Cir. 2004).
  16. Footnote 29.Stephen Migala, Delegation Inside the Executive Branch, 24 Nev. L.J. 147 (2024)
  17. Footnote 29.Matthew C. Stephenson, When and Why Agencies Must Decide for Themselves: Judge Williams’s Restrictive Approach to Administrative Subdelegation, 38 Yale J. on Reg. 752 (2021).
  18. Footnote 30.5 U.S.C. §706(2)(C).
  19. Footnote 31.20 U.S.C. §§1402(a), 3413(a), 3417.
  20. Footnote 32.5 U.S.C. §706(2)(A).
  21. Footnote 33.Dep’t of Commerce v. New York, 588 U.S. 752, 785 (2019) (the reasoned-explanation requirement “is meant to ensure that agencies offer genuine justifications for important decisions,” and “[a]ccepting contrived reasons would defeat the purpose of the enterprise”; setting the action aside on a “significant mismatch between the decision the [agency] made and the rationale [it] provided”).
  22. Footnote 34.Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020).
  23. Footnote 37.Attorney General Pam Bondi Out at DOJ, NPR (Apr. 2, 2026), https://www.npr.org/2026/04/02/g-s1-115077/trump-bondi-attorney-general-departure.
  24. Footnote 40.West Virginia v. EPA, 597 U.S. 697, 723 (2022) (an agency claiming power over a question of “vast economic and political significance” must point to “clear congressional authorization”).
  25. Footnote 42.Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977).
  26. Footnote 45.Alexander v. Choate, 469 U.S. 287, 295–97 (1985) (discrimination against persons with disabilities is “most often the product, not of invidious animus, but rather of thoughtlessness and indifference”)
  27. Footnote 45.29 U.S.C. §794
  28. Footnote 45.28 C.F.R. §35.130(b)(3).
  29. Footnote 46.Massachusetts v. EPA, 549 U.S. 497, 518–20 (2007) (States are entitled to “special solicitude” in the standing analysis).

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