News, Trump Administration

How controversy, and federal law, could limit Betsy DeVos if confirmed

President Trump and his nominee for U.S. education secretary, Betsy DeVos

Education Week has offered up a thought-provoking examination into how controversy, and a new state-friendly federal education law, could limit the powers of controversial education secretary nominee Betsy DeVos even if she does survive a U.S. Senate confirmation vote this week.

DeVos, whose nomination is expected to be up for a tight vote Tuesday, is an influential GOP donor and school choice advocate from Michigan who received President Trump’s pick for the top public schools post, but has provoked a wave of opposition from Democrats and the nation’s top public school backers.  

She’s been criticized for, among other things, a lack of professional experience in public schools, alleged plagiarism on a Senate confirmation questionnaire and a shaky performance during her confirmation hearing.

Meanwhile, senators supporting the Trump nominee, including North Carolina’s own Richard Burr, have been castigated for voting on a frequent campaign contributor like DeVos.

Given the expectation that the DeVos vote will end in a 50-50 tie, Vice President Mike Pence could be called upon to cast the tie-breaking vote, a sure bet for the Trump nominee.

Still, as Education Week reports, DeVos could still face major obstacles to her agenda going forward.

From Education Week:

The litany of prohibitions on the secretary’s role in the year-old Every Student Succeeds Act means DeVos would take office with far less executive firepower than such predecessors as Arne Duncan and Margaret Spellings, who used waivers and pilot programs to reimagine implementation of the No Child Left Behind Act, the law’s previous version.

For instance, language in ESSA prohibiting the department from attempting to sway states over academic standards means DeVos would have trouble delivering on Trump’s campaign promise to scrap the Common Core State Standards, which are in place in 36 states and the District of Columbia. DeVos acknowledged as much in a written answer to questions from Sen. Patty Murray, D-Wash., the ranking member of the Senate education committee.

And DeVos—who is best known for chairing the American Federation for Children, an advocacy organization that supports school choice—would not be assured of big new money for competitive-grant programs to push her agenda, given the president’s assertion in his inaugural address that schools are already “flush with cash,” but not getting results for students.

Even as he championed DeVos’ nomination, Sen. Lamar Alexander, R-Tenn., the chairman of the education committee, made it clear that the votes in Congress aren’t there for the $20 billion voucher program Trump pitched on the campaign trail—although Congress may have an easier time expanding school choice through the tax code.

On top of such institutional constraints, it’s unclear how much credibility DeVos would have with educators upon taking the secretary’s post. The nominee’s apparent confusion about special education laws during her January confirmation hearing and her comment that some schools might need guns to protect against “potential grizzlies,” as one example, had even some Republican teachers who voted for Trump questioning whether she could do the job effectively.

“I totally don’t support her; I think she’s the wrong pick,” said Lindsey Barnes, an elementary school instructional coach in the Kansas City, Mo. district. “When you don’t have a basic understanding of ‘title’ funds [such as special education] that’s troubling to me.”

Christopher T. Cross, who served in the U.S. Department of Education during President George H.W. Bush’s administration, said the controversy surrounding DeVos would “make it hard, no question” for her to enact her agenda.

But, Cross added, “whether it makes it impossible, I think, depends on her.”

“She’s a very smart woman,” he said. “She’s not immune to listening to what’s being said. She could turn the opinion of her at least to neutral”—although, he said, “she’s not going to turn it around” completely.

The report goes on to explain federal law’s complicating factor, as 2015’s Every Student Succeeds Act (ESSA) would seem to shuttle the new education secretary’s powers down to the states.

From Education Week:

As education secretary, DeVos would have a hard time pushing states and districts in significant new directions that local leaders wouldn’t want to take, in part because of the restrictions in ESSA, the latest edition of the Elementary and Secondary Education Act.

“Expanding the [secretary’s role] would fly directly in the face of the most recent legislation,” said Elizabeth Mann, a fellow at the Brown Center on Education Policy at the Brookings Institution. And if DeVos did overreach, lawmakers who complained bitterly that Obama education secretaries overstepped their bounds would have to call her on her actions, or risk looking like “blatant hypocrites,” Mann added.

At least two Republican senators—Nebraska’s Deb Fischer and Kansas’ Jerry Moran—extracted promises from DeVos that she would respect state authority, including no federal voucher mandates, before agreeing to vote for her, according to statements from their offices.

Some civil rights advocates worried more about what DeVos wouldn’t do than what she would, especially when it comes to enforcing civil rights laws and the parts of ESSA aimed at improving low-performing schools and boosting the performance of historically overlooked groups of students, such as English-learners and those in special education.

“The deference to states is our biggest concern at the moment,” said Kati Haycock, who announced she was planning to step down from the helm of the Education Trust, which advocates for poor and minority children. “The kids we work on behalf of can’t afford a secretary who doesn’t have their back.”

If advocates were to decide DeVos wasn’t properly enforcing ESSA and laws protecting civil rights in education, Congress perhaps would not be the right referee for concerned civil rights groups, Mann said. That’s because Republican lawmakers might not want to rebuke a GOP administration for weak enforcement of civil rights. But the courts could help.

For her part, DeVos said during her confirmation hearing that she would approach ESSA enforcement “as Congress intended, with local communities freed from burdensome regulations from Washington.”

DeVos, though, might find it tough to use of one of the few tools left to the secretary in the ESSA era: the megaphone of her office.

“In order to effectively use the bully pulpit granted to the secretary of education, she will need to both inspire and lead disparate parties with competing agendas. From where I sit, most billionaires don’t operate in that manner,” said Maria Ferguson, the president of the Center on Education Policy, who worked in the Education Department during President Bill Clinton’s administration.

But Michael Petrilli, who served in the department under President George W. Bush and is now the president of the Thomas B. Fordham Institute, said DeVos, as a longtime GOP mega-donor, has a line of access to Republican state lawmakers who hold the reins of power in most states.

“She may not have educators,” said Petrilli. “But she’s got Republican legislators and Republican governors.” And many of them have faced the same criticisms DeVos is facing now and may be sympathetic to her, he said.

And on school choice? “They can do a lot,” he said.


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