Monday, December 12, 2016

Betsy DeVos Won't Be Doing Too Much As Secretary of Education, But It Is Not Clear She Knows That

It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education or if she is just blowing smoke like the person who nominated her.  She is telling news sources that she will put the brakes on the Common Core.  “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.”

The truth is that Congress has already gutted the Common Core and shifted enormous control back to states and districts.  The Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core.  The Act is so anti-Common Core and anti-federal standards that I could imagine DeVos and her staffers getting in trouble if they even brought the subject up.  The Act prohibits the Department from engaging states on their academic standards altogether, allowing states to submit a self-attested letter to the Department that their standards are challenging. The point is to prevent the Secretary from monkeying with academic standards in any respect.

The limits on the Secretary and the Department, however, go much deeper than this.  As I write in the introduction to Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (forthcoming),

On December 10, 2015, the [Elementary and Secondary Education Act (ESEA)] lost its historic way. Congress reauthorized the [ESEA] under the popularly titled bill the Every Student Succeeds Act (ESSA). To the delight of most, the ESSA eliminated the punitive testing and accountability measures previously dictated by the No Child Left Behind Act (NCLB). But in the fervor to end NCLB, few stopped to seriously consider the wisdom of what would replace it. The new Act, ESSA, moves education in a direction that would have been unthinkable just a few short years ago: no definite equity provisions, no demands for specific student achievement, and no enforcement mechanism to prompt states to consistently pursue equity or achievement themselves.

The ESSA reverses the federal role in education and returns nearly full discretion to states. Although state discretion in some contexts ensures an appropriate balance of state and federal power, state discretion on issues of educational equality for disadvantaged students has proven particularly corrosive in the past. Most prominently, states and local districts vigorously resisted school integration for two decades, and sometimes longer, following Brown v. Board of Education. In fact, it was this resistance that made passing the Elementary and Secondary Education Act necessary in 1965. State resistance to equality, however, is not limited to desegregation, nor a remnant of the past. Over the last decade, states have made large cuts to education funding and refused to reinstate funding even as their economies improved. The effects of these cuts have often hit low-income and minority school districts hardest. This regression marks a troubling new era in which states are willing to flaunt their state constitutional duties to deliver adequate and equal educational opportunities.

Although the ability for states to adapt solutions to local needs is important, complete discretion also opens the door to ignoring the Education Act’s historical mission of equal opportunity and supplemental resources for low-income students. The ESSA’s framework will, in effect, reduce equal educational opportunity to a random occurrence rather than a legal guarantee. First, the ESSA grants states near unfettered discretion in creating school performance systems and setting goals. States are free to assign almost any weight they see fit to test results, as well as consider any number of other soft variables to counterbalance the weight of tests. With this discretion, as many as fifty disparate state systems could follow. Second, even assuming states adopt reasonable performance systems, the ESSA does not specify the remedies or interventions that states must implement when districts and schools underperform. Third, the ESSA undermines several principles that have long stood at the center of the Act’s mission to ensure equal and adequate access to resources. In particular, the ESSA weakens two major equity standards and leaves a major loophole in a third one that, in effect, exempts 80 percent of school expenditures from equity analysis. To make matters worse, Congress left federal funding flat and afforded states more discretion in spending existing funds.

In other words, what DeVos and Trump claim they want to do in education has already been done.  And because the Secretary is so weakened under the Every Student Succeeds Act, all the other stuff they want to do is beyond their power.  Moreover, there with be no waiver process this time around that allows the Secretary to impose new conditions or policy items on states.  Congress made sure of that when it revised the Act.  So if DeVos and Trump want to push more charters and vouchers, they are going to have to get Congress to pay for it through new legislation.  That means selling an idea that works, not exercising the existing power of the Department.

Get my full analysis of the Act here.

http://lawprofessors.typepad.com/education_law/2016/12/betsy-devos-wont-be-doing-too-much-as-secretary-of-education-but-it-is-not-clear-she-knows-that.html

ESEA/NCLB, Federal policy | Permalink

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