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What Could Betsy DeVos Really Get Done as Education Secretary?

DeVos at Hearing 2.jpg

The prospect of Betsy DeVos as U.S. Secretary of Education has some school choice supporters riding high, while many educators, members of the civil rights community, and disability advocates are taking to the streets in anger, literally.

But what if her nomination is approved? (That looks more likely than not for now, even though a couple of GOP lawmakers said Tuesday they're not sure about the nominee heading into the full Senate vote.) How much could DeVos really do at the U.S. Department of Education without the help of Congress or state policymakers?

The short answer: Maybe not quite as much as you might think.

The new Every Student Succeeds Act seeks to rein in the education secretary significantly—a fact that Sen. Lamar Alexander, R-Tenn., the chairman of the committee, alluded to at the start of DeVos' confirmation hearing. In fact, some civil rights advocates are far more worried about what DeVos wouldn't do, especially when it comes to enforcing civil rights laws and the so-called "guardrails" in ESSA, or the parts aimed at improving low-performing schools and boosting the performance of historically overlooked groups of students. (More on that below.)

DeVos would have some tools at her disposal to champion her school choice agenda, including competitive grants, although money for any big new program will likely be scarce. But it wouldn't be easy for her to push states and districts in significant new directions that local leaders wouldn't want to go in. 

"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 does overreach, lawmakers who complained bitterly about that Obama education secretaries overstepped their bounds will have to call her on her actions, or risk looking like "blatant hypocrites," she added.

DeVos, though, would likely have a tough time making use of one of the few tools left to the secretary in the ESSA era: the bully pulpit.

Many educators and advocacy groups feel that she doesn't have a strong grasp of policy or an understanding of what goes on in public schools, particularly after her bruising confirmation hearing, and wouldn't be eager to take policy suggestions from her, some experts say. It's possible she'd have more luck with GOP state lawmakers, though. (Read on for more information about that.)

Now for some more detailed answers: We took a look at some of the things that folks worry—or eagerly anticipate—DeVos could do, and asked experts how much authority she really has on each of them. 

Could DeVos privatize public education? No, certainly not single-handedly. But, with help from Congress, she could expand private school choice to a lot more students. 

Here are some more details: It would be virtually impossible for DeVos to completely privatize public education. Congress would need to pass legislation allowing all federal funding to flow to both public and private schools. That doesn't seem likely, given that the U.S. Senate already rejected a similar measure in 2015, when Republicans had a bigger majority in the chamber.

What's more, federal funding makes up less than 10 percent of all K-12 funding. So DeVos and her allies would not only have to convince the feds to allow money to go to private schools, they'd have to convince states to go along with it. The 20-odd states that have some kind of school choice program already on the books might be game. But it's hard to imagine deep-blue states, like California and Massachusetts, allowing their own money to go to private schools.

And sending public funds to private schools would involve big changes to state constitutions, many of which have so-called "Blaine amendments" restricting public money from being used for religious purposes. 

DeVos couldn't suddenly use executive action to allow states and districts to start funneling their roughly $15 billion in Title I money for disadvantaged kids to private schools, either. 

It's far more likely that Congress—with encouragement from DeVos—would decide to push private school choice through changes to the tax code, experts say, such as allowing parents to put more money into Coverdell accounts, which can cover private school tuition. Or it could give folks a tax break for donating to nonprofits that give low-income kids scholarships to attend private schools. (More from Andrew and from the Thomas B. Fordham Institute.) 

How might DeVos approach ESSA enforcement? Would there be any recourse if advocates, educators or parents think she's not following the law? State flexibility will likely be the watchword. 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."

That approach to implementation has serious implications for the law's future, in part because portions of ESSA are pretty vague, including on test participation and performance of historically overlooked groups of students. The Trump administration has already put the Obama administration's ESSA accountability regulations on pause, for at least 60 days.

DeVos' signals on ESSA have some civil rights advocates worried. "The deference to states is our biggest concern at the moment," said Kati Haycock, the president of the Education Trust, which advocates for poor and minority kids. "The kids we work on behalf of can't afford a secretary who doesn't have their back." That can be a problem Haycock said, in both red and blue states. She noted for example, that California didn't provide student achievement data for years.

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

"Congress isn't really going to be your fallback here," Mann said. "The courts, the judiciary system is going to be your fallback. I think the courts are going to be where they are going to be looking."

Could DeVos offer states flexibility—like not requiring standardized testing—in exchange for adopting school choice? No, ESSA experts say. The new law prohibits the education secretary from offering "conditional waivers" the way that former Secretary of Education Arne Duncan did. That means the department can't let states get out of one of requirement in exchange for doing something else.

The law puts specific restrictions on the areas that Duncan chose to prioritize when he gave nearly all states leeway from the No Child Left Behind Act through waivers, such as standards. But placing other conditions on flexibility would be tough, given the "overall tenor" of the restrictions, said Reg Leichty, a founding partner at Foresight Law+Policy, a law firm.

Could DeVos use competitive grants to push for vouchers, the same way the Obama administration used Race to the Top funds to encourage states to adopt teacher evaluation through student outcomes and rigorous standards?

Yes, but in order for the program to be large enough to really be meaningful, Congress would have to provide new funding, Leichty said. Any program DeVos sought to create on her own, using some of the department's discretionary funding, would be pretty tiny.

Again, most experts say Congress is far more likely to push expanded private school choice through the tax code than to create a competitive-grant program for it, at least initially. That's partly because it would be easier to pass a tax credit without Democratic votes, and partly because it doesn't look like the Trump administration is eager to pour money into K-12 education. (The president said in his inaugural address that American schools are "flush with cash, but deprive our young and beautiful students of all knowledge.")

DeVos could, however, put a school choice stamp on some existing grant programs. For instance, she could give school districts, nonprofits, and even for-profits seeking grants under the Education Innovation and Research program a leg up if they propose a school-choice based program.

Could DeVos get rid of the Common Core State Standards or tell states which tests to use?

No. In fact, ESSA specifically prohibits DeVos from doing that, even though it was one of President Donald Trump's explicit campaign promises. DeVos herself admitted to Sen. Patty Murray, D-Wash., that this was a no-go. That doesn't mean DeVos—and Trump—can't say mean things about the common core. And their opposition could sour some GOP governors on the standards.

Could DeVos stop enforcing the Individuals with Disabilities Education Act?

Only if she were looking to get hit with a lawsuit. But laws, including IDEA, have gray areas. "She might give the benefit of the doubt to a state or district," Leichty said. 

For her part, DeVos wrote a letter last month saying that she intends to protect the "hard won" rights of students with disabilities. She came under fire for her comments on special education after she appeared confused on the law during her confirmation hearing.

Would DeVos be able to get school districts and states to do what she wants? In the ESSA era, the bully pulpit became one of the education secretary's most important tools. (Witness former Secretary John B. King Jr.'s barnstorming on the importance of giving all students access to an equitable education, in the wake of the ESSA's passage.)

DeVos' passion is obviously choice. And there are plenty of instances where she can use ESSA to encourage states to expand educational options for students.

But, particularly after a rough confirmation process, DeVos may not have much political capital to champion her agenda, said Maria Ferguson, the president of the Center on Education Policy, who worked in the Education Department during President Bill Clinton's administration.

"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 that manner," she said.

But Mike Petrilli, who served in the department under President George W. Bush and is now the president of the Thomas B. Fordham Institute, noted that DeVos, a GOP mega-donor, already has a line of access to a pretty important group of people: Republican state lawmakers who hold the reins of power in most states.

"She may not have educators," he said. "But she's got Republican legislatures and Republican governors." And many of them have faced the same criticisms DeVos is facing now, and may be sympathetic. And on school choice? "They can do a lot," he said. 


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