PROTECT Our Kids Act

Enumerated powers · raises concerns · severity: significant

Congress relies on the Spending Clause (Article I, Section 8, Clause 1) to attach conditions to federal education funds. However, the condition here—prohibiting funding for schools with any connection to Chinese government-supported cultural or language programs—does not clearly relate to a federal enumerated power such as national security or foreign affairs. The bill's stated purpose of 'eliminating Communist teachings' is not a power delegated to Congress; education is a state and local matter under the Tenth Amendment. While Congress may condition spending, the condition must be unambiguous and germane to the federal interest in the program. Here, the condition targets foreign influence in education, which touches on foreign relations (a federal power), but the means—cutting all funding to schools with any such partnership—is overbroad and not tailored to a legitimate federal objective. The waiver provision does not cure this defect because it grants ED discretion without clear standards, effectively allowing the executive to define the scope of the condition. Therefore, the bill likely exceeds Congress's enumerated powers.

Bill of Rights · raises concerns · severity: significant

The bill penalizes schools for having partnerships with Chinese government-backed cultural institutes (e.g., Confucius Institutes). This implicates the First Amendment rights of schools, teachers, and students to associate with foreign cultural organizations and to receive information from them. The Supreme Court has held that the government may not condition funding on the relinquishment of First Amendment rights unless the condition is narrowly tailored to a compelling government interest (see Agency for Int'l Development v. Alliance for Open Society International, 570 U.S. 205 (2013)). Here, the bill's broad prohibition on any 'support' from Chinese government-affiliated entities, including teaching materials and personnel, could chill protected speech and association. The waiver provision does not adequately protect these rights because it is discretionary and lacks objective criteria. Additionally, the bill's title and stated purpose ('eliminating Communist teachings') suggest viewpoint discrimination, which is presumptively unconstitutional under the First Amendment. The bill also raises concerns under the Fifth Amendment's Due Process Clause (see below).

Individual liberty · raises concerns · severity: significant

The bill restricts the ability of schools—and by extension, students and parents—to choose educational partnerships and curricula that include exposure to Chinese language and culture. While the government has a legitimate interest in protecting national security, the bill's sweeping prohibition on any 'support' from Chinese government-affiliated entities, without requiring a showing of actual harm or threat, imposes a substantial burden on individual and local educational autonomy. The burden is on the government to justify this restriction with a compelling interest and narrow tailoring, which the bill fails to do. The waiver provision does not restore individual sovereignty because it is discretionary and may be denied arbitrarily. This check is failed because the restriction is overbroad and not justified by a compelling constitutional justification.

Decentralization · raises concerns · severity: significant

Applying the four-question test: (1) Could an individual or family handle this without government involvement? No—decisions about school partnerships with foreign cultural institutes are institutional, not individual. (2) Could a local community or county handle this without state involvement? Yes—local school boards could decide whether to partner with Confucius Institutes. (3) Could a state handle this without federal involvement? Yes—states have plenary authority over education and can regulate foreign influence in their schools. (4) Does this action consolidate decision-making at a higher level of government than the minimum necessary? Yes—the bill imposes a federal condition on all schools receiving federal funds, preempting state and local discretion. It fails three of four questions (fails #1, passes #2, passes #3, fails #4), resulting in a grade of C for this check. The Tenth Amendment reserves education to the states, and the federal government's use of spending power to dictate local educational partnerships is a significant consolidation of power upward.

Due process and takings · raises concerns · severity: significant

The bill conditions federal funding on schools severing ties with Chinese government-affiliated entities, but it provides no clear standards for the waiver process. The Department of Education may issue waivers if a school demonstrates that an existing contract 'promotes the security, stability, and economy of the United States,' but this standard is vague and grants ED broad discretion without procedural safeguards. Schools face the loss of federal funding without a meaningful opportunity to be heard or to challenge the denial of a waiver. This raises procedural due process concerns under the Fifth Amendment, as the government may deprive schools of property (federal funding) without fair notice or a fair hearing. Additionally, the bill does not provide for just compensation if schools have already entered into contracts with Chinese government-affiliated entities in reliance on existing law, potentially implicating the Takings Clause. The lack of clear, objective criteria for waivers makes the bill arbitrary and thus violates substantive due process.