Old habits die hard. And using the Department of Education to dispense federal mandates in service to an overarching agenda has been habitual practice these past eight years.
Right under the surface of the clickable and contentious clashes between Education Secretary-designate Betsy DeVos and Democrats on the Senate’s Health, Education, Labor and Pensions Committee at her confirmation hearing last week, lay a hunger for more of the same. Senators stayed true to the prevailing mindset: That a good and decent education secretary, as opposed to an unserious oligarch, would enforce a singular vision of best practice as they see it. In other words, Democrats want more feel-good federal mandates to complicate thorny issues in education.
Fighting gun control with grizzly bears?
Well, not quite.
In a widely ridiculed exchange with Connecticut senator Chris Murphy, DeVos invoked a Wyoming school beset by bears to answer the incredulous lawmaker, “You can’t say definitively today that guns shouldn’t be in schools?” Her conjecture—that a school in Wapiti, Wyoming, known for practicing “bear drills” and building a fence to guard children from bear attacks, probably keeps a gun to handy—turned out to be untrue. But the spirit of her response (“that’s best left up to locales and states to decide”) remains: Different states and different districts face different types of dangers. While gang violence is a topmost concern of certain urban schools, and the fear of mass shootings increasingly grips rural and suburban schools once thought to be safe, remote frontier schools face unique challenges of their own.
But for the time being, the only way to institute a ban on all guns from schools would be through federal mandate: a funding-backed guidance from the Education Department, for instance—an unlikely circumvention of a Republican Congress and the authority of state legislatures, the vast majority of which already prohibit guns in schools.
“Equal” accountability?
“If confirmed, will you insist upon equal accountability in any K-12 school or educational program that receives taxpayer funding whether public, public charter or private?” asked Senator Tim Kaine. DeVos repeated the well-known fact that she, a deeply invested school choice advocate in her home state of Michigan, supports accountability—strengthening charter school oversight and including parents in school assessment have been central to her efforts. When pressed to answer whether every school should have the same standards of accountability, she had the gall to tell the truth, “Well they don’t, they are not today.” And there’s a reason for this: Private schools and public charter schools are subject to different regulations from traditional public schools. The first charter schools were founded by frustrated educators wanting to implement new, better methods of classroom teaching—and to escape the confines of one-size-fits-all regulations. Advocates for stricter oversight of charter schools call for equitable standards tailored to different types of schools. Underperforming charter schools, for instance, have to close or restructure after three years of failure—this same accountability method would not work for a remote public school.
In order to give Senator Kaine a positive answer, DeVos would have had to relax her definition of accountability far enough to claim, disingenuously, that accountability practices are “separate but equal”—when in reality, standards for different schools are different. Establishing truly “equal accountability” would not only undermine the spirit of a bipartisan movement to dispell one-size-fits-all reforms but would require an overreach of the department’s authority beyond even the Obama administration’s wildest dreams.
Sometimes it really is up the states.
In one of the hearing’s stranger moments, Minnesota senator Al Franken asked DeVos to weigh in on the debate over how best to measure test scores. Franken advocates measuring improvement over time, aka “growth,” as opposed to comparing students’ proficiency to their peers’ at other schools. Under the Every Student Succeeds Act, now the law of the land, state departments of education determine their own combination of testing metrics. So, it might be worth noting here that the secretary of education will not be in a position to prefer one accountability metric over another. And for her to honor Franken’s stated preference for growth-based accountability would undermine the spirit of a bipartisan reform package that shifted authority away from the federal government.
(Perhaps he knew he’d asked a bum question. When DeVos asked Franken to clarify, he interrupted her, saying “It surprises me that you don’t know this issue,” and plied Committee Chairman Lamar Alexander for more time, without giving DeVos the opportunity to answer more fully.)
Casually reimagining the law…
Senators Tim Kaine and Maggie Hassan of New Hampshire questioned DeVos on the 1975 Individuals with Disabilities in Education Act, targeting her admitted confusion about the federal law, which requires public and charter schools to provide accommodations for disabled students. But Hassan and Kaine pressed DeVos on an element of the law that does not currently exist. The IDEA does not fully extend these rights to students using vouchers to attend private schools. “I want to know whether you will make sure that children with disabilities do not have to sign away their legal rights in order to get a voucher,” Senator Hassan pressed, anticipating Trump’s proposed voucher expansion.
In reality, Congress will have to decide during the law’s next reauthorization whether to require private schools to follow the IDEA to the same extent that public and charter schools must. For DeVos to guarantee that private schools offer full special education protections without consent of Congress would require her department follow their predecessors’ lead—they might, for instance, issue a clarifying guidance that reinterprets current law.
Speaking of a clarifying guidance that reinterprets current law…
Senator Bob Casey of Pennsylvania and Ranking Member Patty Murray both encouraged DeVos to uphold the 2011 Title IX guidance, a controversial federal mandate that colleges and universities process claims of sexual misconduct internally and to a sub-legal standard of proof. Senator Murray said she “was not happy” with DeVos’s position, and Senator Casey requested the secretary-designate “commit to retaining the standard of evidence as is currently the law.” DeVos instead answered that she would examine the law’s interpretation and implementation to make sure that “the intent of the law is actually carried out in a way that recognizes both the rights of victims as well as those who are accused.” This stance, along with a promise to Chairman Alexander to “implement laws as you intend them,” represents a radical departure from the status quo of the last eight years.
Since Tuesday night, DeVos has caught mounting criticism for a repeated refrain—that’s a matter best left to the states—that made her seem, to some, a “deer in the headlights” ignorant of intricate policy issues. Counter to the old habit, DeVos readily admitted that when it comes to the needs of a given family, district or state, she does not know best, and Washington does not know best. This attitude, alarming to Democrats, signals a refreshing change of pace for the federal agency.
