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Betsy DeVos Faces Sharp Questioning on Special Education Policy

Betsy DeVos, the Trump administration's nominee for education secretary, had a lot of work to do in her confirmation hearing Tuesday, including convincing critics that she is not an enemy of public education.

But unlike past education secretaries, she hasn't been a governor, school superintendent, or college president. And sharp exchanges about special education with Sens. Tim Kaine of Virginia and Maggie Hassan of New Hampshire, both Democrats, underscored DeVos' inexperience with that particular portion of education policy. 

Hassan Asks DeVos About Voucher Protections

Hassan, whose son Ben has cerebral palsy, opened her comments by saying he received a quality public education. She then said she was concerned that students with disabilities who receive vouchers often don't receive adequate resources. 

"Do you think that families should have a recourse in the courts?" Hassan asked.

The relevance for this question for DeVos is that she is best known for heading, until her nomination, the American Federation for Children. That organization supports private school vouchers, education savings accounts, and other forms of educational choice.

Students with disabilities who accept vouchers to attend private school are generally required under state law to waive the specific protections they would have under the Individuals with Disabilities Education Act they would have if they were enrolled in public school. In some cases, the parents also must not  have any outstanding disputes with a school district in order to receive a voucher. 

DeVos answered that she would advocate for all families to have the right to choose the right school for their child. Hassan cut this off and repeated her question. DeVos then offered comments about voucher programs that are already operating and are popular with the families who accept them, such as in Florida and Ohio.

Hassan said there is "at least one voucher program that makes students sign away their rights before they can get that voucher. I think that is fundamentally wrong.  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."

DeVos started to praise voucher programs again, but Hassan again cut her off. "With all due respect, you didn't answer my question." 

Kaine Presses the IDEA Question

That line of questioning set up Kaine. Saying he was adhering to the five-minute limit for questions imposed by committee Chairman Lamar Alexander, R-Tenn., he addressed his questions to DeVos in rapid fire.

Kaine: "Should all schools that receive taxpayer funding be required to meet the requirements of the Individuals with Disabilities Education Act?" 

DeVos answered, "I think that is a matter that's best left to the states." 

Kaine's response: "So, some states might be good to kids with disabilities, and other states might not be so good? And then people can, what, just move around the country if they don't like how their kids are being treated?" 

DeVos repeated her answer about states needing to make the final decision.

"What about the federal requirement?" Kaine asked. "It's a federal law." DeVos then said that the issue was "worth discussion." 

Hassan Following Up

Hassan picked up the theme again. Referring to the IDEA, she said, "that's a federal civil rights law. So, do you stand by your statement a few minutes ago that it should be up to the states whether to follow it?" 

DeVos responded that "federal law must be followed when federal dollars are in play."

Hassan then said, "so, were you unaware when I just asked you about the IDEA that it was a federal law?" 

DeVos: "I may have confused it."

Hassan then went on to talk about her concern with vouchers, and said, "I do have to say that I'm concerned that you seem so unfamiliar with [IDEA.]"

DeVos said that if she is confirmed, "I will be very sensitive to the needs of special needs students and the policies surrounding that." 

Hassan responded: "It's not about sensitivity, although that helps. It's about being willing to enforce the law so that my child, and every child, has the same access to high-quality public education." 

What Does IDEA Say About Vouchers? 

I've excerpted these exchanges at length because they touch on a complex portion of an already complex law. 

Some special education advocates seized on these questions as examples of DeVos' unwillingness to support federal law or children with disabilities. But IDEA already states that students who are enrolled in private schools by their parents are not fully covered under its provisions. It doesn't matter, under current law, if the tuition is partially paid for through voucher money.

(There's also the rare circumstance where a student is placed in a private school by the public school district. Those students do have full IDEA protections, but that's a very small group of students.) 

The special education law does include some protections for private school students—I explained private schools and IDEA in this 2005 article written soon after the law's last reauthorization—but those provisions are not as robust as they are for public schools.

To the extent that Hassan and Kaine were asking DeVos to guarantee full special education protections to voucher recipients who attend private schools, they were making a request that goes beyond what IDEA currently requires.

As for traditional public schools and charter schools, students who attend those schools are fully covered under the IDEA's provisions. If states accept federal special education money, enforcement of federal special education law is not a matter than can be left up to their discretion. 

IDEA 'Portability'

One line of questioning that seemed to get less attention was between DeVos and Sen. Susan Collins, a Republican from Maine. Collins asked DeVos whether she could do anything to see if the Education Department could move toward sending more special education dollars to the states. "That is an action that would help every single school district in this country," Collins said. 

(The amount of money that is allotted for special education is primarily the role of Congress, which funds agency budgets.) 

DeVos said that she would commit to looking into the issue if confirmed. She continued, "I actually think this is an area that could be considered for an approach that would be somewhat different, in that maybe the money should follow individual students instead of going directly to the states. I think that's something we could discuss, and I would look forward to discussing with members of this committee." 

Such a change would be a dramatic departure from the way federal money currently flows to states for special education, and the response offers insight into DeVos' priorities. 

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