After barely surviving a contentious confirmation process, Betsy DeVos is now in charge at the Education Department.
She and her fiercest opponents might be surprised by how little power she actually has in the job.
Liberals’ biggest worry about DeVos, aired at the rallies to oppose her and the hundreds of thousands of calls to senators, is that she would “destroy” public education. It will be hard for DeVos to make changes that big on her own. Even a modest school voucher program will face a tough battle to become law.
What she can do is carry out smaller surgical strikes on some of President Obama’s most controversial policies.
Guesses about DeVos’s agenda are, at this point, based more on liberal nightmares and conservative wish lists than anything she’s said in public. So far, DeVos has shown a lot of enthusiasm for her signature cause, vouchers, to the exclusion of much else. In her speech to Education Department employees Wednesday, DeVos praised the department’s “unique role” of keeping students “free from harm.”
But now that she’s officially in power, she’s going to be under pressure to change which students the department prioritizes for protection. The effects might not be obvious to everyone. But they could make schools and colleges a less welcoming place for millions of students — from transgender kids to victims of sexual assault — who have had the federal government in their corner for the past eight years.
DeVos needs Congress to expand school vouchers
The issue: Trump promised a $20 billion federal school voucher program on the campaign trail, and he suggested that he’d get states to kick in enough money to send children living in poverty in the US to private school with vouchers. Picking DeVos, a champion of voucher programs, suggested Trump was serious.
What DeVos can do on her own: Not much. DeVos’s abilities are limited to tinkering around the margins — adjusting existing federal grant programs, for example. But DeVos promised Republican senators she wouldn’t try to force voucher programs on the states, and the amount of money involved in existing grants is small enough that it’s not likely to leverage much change.
A lot of Republicans in Congress support school vouchers, too, and once they’re involved, the options expand. But a national school voucher program is still highly unlikely, even with Republicans dominating the majority of state governments. One of the many hurdles: 38 states have constitutional amendments that block public funding from going to religious schools.
Working with DeVos, Congress could make changes that fall short of a national voucher program. It could pass Trump’s voucher plan, which would turn $20 billion worth of federal education funding into vouchers for kids living in poverty (but wouldn’t, on its own, offer low-income families enough money to pay private school tuition in most places). Republicans could also return to an often-proposed idea to make Title I funding, which goes to schools with a high share of low-income students, into a sort of voucher by allowing the money to “follow” students to any public school they attend.
One conservative idea getting attention in education circles is a federal tax credit scholarship: a tax break for people and businesses that donate to scholarship funds for private schools. Those tax credits, which already exist at the state level, essentially provide federal support to private schools, which eventually benefit from the scholarship funds. Congress could pass them through the tax reform process, though, rather than as part of a more contentious education bill.
DeVos can ease regulations on for-profit colleges
The issue: Michigan, DeVos’s native state, allows for-profit companies to operate charter schools. Combined with DeVos’s past investments in education companies and her support for vouchers, this led critics to argue that she’d get private companies involved in public education in all sorts of ways.
What DeVos can do: Loosen regulations on for-profit colleges (with an assist from Congress).
Most of the conversation around DeVos’s confirmation, from both her backers and opponents, was about K-12 public schools. But the Education Department has more direct authority over higher education.
Under President Obama, the department wrote new rules for for-profit colleges and vocational programs, requiring them to prove they led to jobs that enabled students to pay back their loans. DeVos could delay those regulations or, if Congress blocks them altogether, decline to replace them. (Trump also “paused” regulations that would let students whose colleges defrauded them get out of repaying their student loans, which could meet the same fate.)
DeVos’s answers to questions from Sen. Patty Murray (D-WA) suggested that she doesn’t view scrutiny aimed at for-profits particularly favorably, saying she didn’t want to discriminate “based on tax status.”
For-profit colleges were in the spotlight because their students tend to take out big student loans and struggle to repay them. In some cases, colleges lied about job placement rates and used coercive techniques to get students to enroll. Enrollments dropped precipitously during the later years of Obama’s presidency, and federal policy wasn’t the only cause — the improving economy and the bad publicity likely played a role as well. DeVos probably can’t revive them single-handedly, but she can at least offer a friendlier regulatory environment.
DeVos can’t eliminate protections for students with disabilities, but she can be less aggressive
The issue: The most worrisome part of DeVos’s hearing, to many senators, was when she seemed confused about the Individuals With Disabilities Education Act (IDEA), the federal law guaranteeing an education to students with disabilities, saying it should be “left up to the states.” She also spoke approvingly about a Florida voucher program for students with disabilities.
What DeVos can do on her own: She could ease up on how strict the Education Department is on IDEA enforcement.
DeVos promised senators she’d keep enforcing IDEA. And if she didn’t, she’d almost certainly be sued. Still, there’s some leeway in how aggressively the Education Department gets with schools on civil rights, including the rights of students with disabilities. When complaints are filed, Ed can go easy on schools accused of violating rights to get through the investigations quickly, or it can insist on total compliance with the law — or team up with the Justice Department to sue schools if the resolution process doesn’t work.
DeVos can’t choose not to enforce the law, but she can ease up on the messages the department sends about how strict it intends to be. Many conservatives are skeptical of the federal Education Department telling local schools what to do, even if they support the underlying goals. The team she appoints to work on special education and civil rights issues will be key.
DeVos can roll back protections for transgender students
The issue: DeVos’s position on LGBTQ rights was a surprisingly contentious issue during her confirmation process — contentious because of her family’s history of donations to anti-LGBTQ groups, and surprising because… well, imagine telling someone in 2005 that the Republican education secretary nominee’s vulnerability in 2017 would be her stance on gay rights. But there’s also specific policy relevance here. Under Obama, the Education Department pushed schools to protect gay and transgender students, changes that conservatives see as federal overreach.
What DeVos can do on her own: Walk back protections for LGBTQ students and take the spotlight off colleges that seek to discriminate against them for religious reasons.
The Obama administration’s guidelines on trans students have stirred up consternation on the right. The Education Department directed schools to let students use the facilities that match their gender identity; DeVos could reverse that guidance. (The Supreme Court is also hearing a case on a trans boy’s right to use the boys’ bathroom at a school in Virginia.)
The Education Department, under pressure from LGBTQ activists, also released the list of colleges that got exemptions from Title IX on religious grounds — essentially a license to discriminate based, in many cases, on sexual orientation and gender identity. Colleges protested that the list, and the release of the paperwork colleges filed to get that exemption, was a way to publicly pressure or shame them. DeVos could easily end that practice.
And, as with students with disabilities, the department has leeway on how ferociously it pursues allegations of discrimination. Even when complaints haven’t been officially filed, the Office for Civil Rights can open a “compliance review.” The Obama administration did this in Yakima, Washington, after reports of anti-LGBTQ bullying, requiring the school district to do more to prevent harassment. Republicans who dislike the idea of a federal agency telling schools what to do would welcome a less aggressive posture on issues like these.
The big question is whether DeVos wants to do any of this: A New York Times story painted her as a longstanding supporter of LGBTQ rights, and her responses to questions from Sen. Murray on LGBTQ students’ civil rights parroted language from Obama’s Education Department about students learning in “safe, supportive environments.” This was widely reported as plagiarism, but the more intriguing possibility was that DeVos wasn’t ready to propose a big shift on these policies. As on other issues, DeVos’s assistant secretaries’ views are likely to be crucial.
DeVos could change sexual assault policy to emphasize fairness for accused students
The issue: The Obama administration pushed colleges to do more to confront sexual assault on campus, including a letter in 2011 that directed them to use a lower standard of proof (“the preponderance of the evidence,” the standard in civil cases) to hold students responsible in disciplinary proceedings. Libertarian groups, law professors, and journalists argued colleges are now going too far, but many advocates for victims of sexual assault say the federal pressure is crucial.
What DeVos can do on her own: Give more weight to the rights of accused students.
At her confirmation hearing, DeVos indicated that she knew the sexual assault guidance was controversial and didn’t commit to continuing it. As with other civil rights issues, there are several options here. The Education Department could issue new guidance calling for a higher standard of proof, such as “clear and convincing evidence.” It could also back off from the Obama administration’s guidance more quietly, giving colleges more leeway to set their own standards.
The federal government has to investigate complaints about mishandled sexual assault. But, as with other civil rights issues, the Office for Civil Rights could be less aggressive about looking into colleges where no complaints have been filed. It could also put more focus on allegations that colleges are violating the rights of the accused. There’s some precedent here: Obama’s Education Department found in 2016 that Wesley College had violated the rights of an accused student in sexual assault proceedings.
But the sexual assault activism of the past six years wasn’t just about the federal government. It was also about changing the culture on college campuses. The public spotlight and activism will make it harder for colleges to go back to their longstanding position of sweeping these issues under the rug, even without the Education Department looking over their shoulder.
DeVos could make some symbolic gestures toward Christian colleges
The issue: The interplay between DeVos’s religious views and her preferred policies stirred up controversy, including a remark she’d once made that education reform should “advance God’s kingdom” (a remark some say was misinterpreted). Evangelical voters have been enthusiastic about vouchers for decades. But the Education Department has more power over religious schooling in higher education, not K-12, because religious colleges where students get Pell Grants and federal loans fall under the department’s oversight. Jerry Falwell Jr., the president of the evangelical Liberty University, will be heading up a task force on higher education regulation.
What DeVos can do on her own: Vouchers are the big prize here, and they’d require Congress, but DeVos could make policy gestures toward Christian colleges.
The Obama administration’s big clashes with religious colleges were around the Affordable Care Act’s contraception mandate, which isn’t the Education Department’s responsibility. DeVos hasn’t mentioned the issue. But aside from the issue of LGBTQ rights, it’s possible that, for example, her Education Department could spend more time investigating and highlighting allegations of religious discrimination against Christians at secular schools, much as the Justice Department under President George W. Bush pursued cases focused on the civil rights of white men.
DeVos can’t change Common Core
The issue: Trump, on the campaign trail, repeatedly promised to get rid of Common Core, the set of shared language arts and math standards that the Obama administration pressured states to adopt. DeVos’s opinions on Common Core when she was nominated were murky, but she later released a statement saying she didn’t support the standards.
What DeVos can do: Nothing.
After Education Secretary Arne Duncan used federal grants and waivers to push states to adopt shared standards and tests, Congress prohibited future secretaries of education from messing around with states’ standards.
DeVos could get rid of an emphasis on the role of race in school discipline
The issue: The Obama administration pushed to eliminate racial disparities in discipline. Students of color are far more likely to be disciplined than their white peers, regardless of behavior, contributing to the phenomenon known as the school-to-prison pipeline: Black students are disproportionately likely to be suspended, expelled, and referred to the juvenile justice system.
This issue didn’t come up much in DeVos’s hearings, or in the debate surrounding her nomination, because it didn’t get the widespread attention that actions on sexual assault and LGBTQ rights did. But the notion that the Obama administration pushed schools to go easy on students of color got a massive amount of critical coverage in conservative media.
What DeVos can do: Take away the federal spotlight on race and discipline.
As with other civil rights issues, DeVos has a lot of leeway here. And she’s likely to face pressure within the administration to ratchet down the focus on racial disparities. (Breitbart, whose publisher Steve Bannon is now a trusted Trump adviser, covered the issue frequently, but conservatives closer to the center also were also critical.) DeVos wouldn’t even need to change her messaging. She committed to keeping students “safe from harm,” and critics of the discipline policies argue that the Education Department prioritized racial justice over keeping order in the classroom.