Thursday, January 19, 2017

Betsy DeVos May Be in the Top One Percent in One Category, But She Is in the Bottom Half in Another and That Makes Her a Hard Sell

When I first read the exchange between Betsy Devos and two senators on the Individuals with Disabilities in Education Act (IDEA), I was speechless.  As a professor, this is a relatively rare occurrence.  Once I came to my senses, a few potentially poignant ideas came to me, but before I share them, I will give you an opportunity at speechlessness.  Here is the exchange:

Sen. Tim Kaine (D-Va.) asked DeVos if all schools that receive federal funding should meet the requirements of IDEA.

DeVos: “I think they already are.”

Kaine: “But I’m asking you a should question. Whether they are or not, we’ll get into that later.” He then repeated his question.

DeVos said: “I think that is a matter that is best left to the states.”

Kaine responded: “So some states might be good to kids with disabilities and other states might not be so good and, what then, people can just move around the country if they don’t like how kids are being treated?”

Devos repeated: “I think that’s an issue that’s best left to the states.”

Kaine said: “What about the federal requirement? It’s a federal law, the Individuals With Disabilities Education Act.”  He repeated his initial question again.

DeVos then offered an anecdote about a Florida voucher program for students with disabilities.

Kaine interrupted her: “Just yes or no. I think all schools that receive federal funding — public, public charter, private — should be required to meet the conditions” of IDEA. He asked if she agreed.

DeVos: “I think that is certainly worth discussion.”

Kaine: “So you cannot yet agree with me.”

[Later]

Sen. Maggie Hassan (D-N.H.) explained that the IDEA is a federal civil rights law that must be followed. She asked DeVos if she stood by her statement that it was up to the states to follow it.

DeVos: “Federal law must be followed where federal dollars are in play.”

Hassan: “So were you unaware when I just asked you bout the IDEA that it was a federal law?”

Devos: “I may have confused it.”

My guess is that if you are reading this post, you already knew what the IDEA is and, if so, that makes you more qualified to serve as Secretary of Education than Betsy DeVos.  You may also know the following, but I offer it for the good of the order.  Students with disabilities typically make up roughly 10 or 11 percent of the public school population.  In some schools, it dips to around 8 percent.  In others, it is around 14 percent.  It is the second largest chunk of funding that the federal government spends on public education.  Title I funds, directed at low-income students, are the biggest chunk at around $14 billion.  IDEA funds are a close second at $12.5 billion.  Nothing else comes close.  

The Office for Civil Right at the Department of Education is charged with investigating discrimination complaints in education.  It protects against race, gender, disability, language status, and age.  Of all the complaints it receives, 39% are in regard to disability.

How any Senator could deem a person qualified who is not sure of, misunderstands, or thinks that the most (or second most) important law she will be charged with enforcing is voluntary is . . . .  Well, I just cannot find the word to finish that sentence.  Is it shocking, astonishing, unbelievable, or maybe just the new world order where basic knowledge and facts do not matter.

Then a snarky light went off.  Betsy DeVos may be part of the top one percent in terms of wealth and that may qualify her to do a lot of things.  It may have offered her a lot of skills. But on education, she may very well be in the bottom half in terms of knowledge.  Owning charter schools is a lot different than knowing something about education.  I own several stocks and I know very little about any of them.  I own a couple of cars--one for a decade and I still cannot manage to get the driver's seat to return to its original position as I am told it is supposed to when I get in.  Nor can I sync my garage door opener to my car.  And I have read the owner's manual on these topics a couple of times.  And I am generally a pretty hand person.

But, of course, no one is nominating you to be Secretary of Education and no one is asking me to fix their car or offer stock advice, so those are not really accurate points of comparison.  If we compared DeVos to those who actually follow public education, either closely or casually, I would venture to say she is, at best, in the bottom 25% in terms of knowledge.  Now, let's get serious.  Is this someone any Senator should confirm as the Secretary of Education?

http://lawprofessors.typepad.com/education_law/2017/01/betsy-devos-may-be-in-the-top-one-percent-in-one-category-but-she-is-in-the-bottom-half-in-another-a.html

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Comments

I have no particular brief for Ms DeVos. But IDEA is a spending-power statute, is it not? So isn't it true that "Federal law must be followed where federal dollars are in play,” as Ms DeVos testified? States could elect not to receive the relevant federal funds and a state that did not accept those funds would have no IDEA obligations.

Sens. Kaine and Hassan are correct that IDEA is a "federal law" and therefore "must be followed" - that's the Supremacy Clause. But it imposes no obligations upon states where "federal dollars are not in play."

Or am I misunderstanding?

Posted by: Aaron Saiger | Jan 23, 2017 5:22:41 PM

Isn't Ms DeVos also correct to reject Senator Kaine's suggestion that "private schools" that "receive federal funds" have duties under the IDEA? If Private School X agrees to educate Y and give Y FAPE, and the state remunerates School X for doing so, then School X receives federal funds. But I don't think that School X, having agreed to educate Y in a particular way and to accept federal money for doing so, in this way incurs any duty under IDEA to give some other student Z FAPE, even if Z is enrolled in X. Similarly, X need not provide Z with a least restrictive environment. And so on. Or have I misunderstood the IDEA?

P.1 of this DoEd manual says that many disabled students will receive no IDEA services in private schools. https://www2.ed.gov/admins/lead/speced/privateschools/idea.pdf

Posted by: Aaron Saiger | Jan 23, 2017 5:34:20 PM

Aaron, if I follow you correctly, I believe you are correct. Or to state it more directly, IDEA does not operate like Title VI. A private school that received any federal dollars of any sort would have to comply with Title VI. This is not true with IDEA. It is not a generally applicable statute. A school only becomes subject to it by receiving IDEA funds (I believe), although Eloise Pasachoff could probably give a more definite statement off the top of her head.

Posted by: Derek Black | Jan 25, 2017 5:02:23 AM

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