Monday, February 20, 2017
Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time. The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning. States are set to submit their brand new implementation plans for the Every Student Succeeds Act. They have been operating under No Child Left Behind plans since 2002 and are now transitioning to entirely new schemes.
These plans include lots of moving parts and policy choices within a much larger regulatory structure. The people who understand those parts just exited the Department of Education building. New staffers are coming into the building and, as evidenced by the confirmation hearing, their boss does not understand the basic rules that have been in place for decades, much less the new ones.
To make things worse, DeVos just added to the confusion. On February 10, DeVos sent a letter to states telling them that the timeline for submitting their implementation plans remains in place, but everything else is up in the air. In November, the Department enacted final regulations outlining what should be in those plans, but DeVos indicates states should not worry about complying with those regulations. She points to a letter from White House staff and the possibility that Congress might disapprove the regulations. In such case, "these regulations 'shall have no force or effect.'" In other words, turn your state plans in on time, but forget the rules.
This letter creates a host of problems, none of which have anything to do with partisan politics. White House staff cannot repeal or stay regulations once they become final--certainly not with a memo. Final regulations can be repealed through the legislative process, but only if the House, Senate, and President act together. While the House has voted to repeal the regulations, the vote was largely symbolic. During the Obama administration, the House passed several similar resolutions regarding non-education regulations, but the Senate never acted. Senator Lamar Alexander has made rumblings about repealing these regulations, but one has to think they are largely rumblings. Congress recessed last week having taken no action. Quite simply, the Senate has much bigger fish to fry right now: agency confirmations, a Supreme Court Justice, and repealing the Affordable Healthcare Act. The last time Congress debated the ACA it led to nearly a decade-long delay in the reauthorization of the Elementary and Secondary Education Act. In short, my money is on the regulations remaining in effect for some time.
Regardless, repealing the regulations in whole will create a huge vacuum, leaving states with no detailed guidance regarding an entirely new process. Surgically removing some of the regulations is equally problematic because it requires that someone actually understand the regulatory substance and structure. Consider, for instance, just one issue like the difference between student proficiency and student growth. Who is Congress going to ask about regulations that go much deeper than proficiency versus growth? Besty DeVos?
If any of the regulations are repealed, the Department will presumably want to replace them. That takes time--often lots of time. The Department must go through the notice, comment, and finalization process. The regulatory vacuum will persist while this drags out.
Even if time were not an issue, new regulations require a sense of where the Every Student Succeeds Act should go. Betsy DeVos standard line is to let states decide. But states do not want to decide everything. They need some sense of the parameters. More important, so does Congress. While the Every Student Succeeds Act gives states a lot of discretion, Congress did not just pass a 400 page bill so that states would be left with no rules or regulations at all. Congress could have done that in a page.
The current regulations are the law whether the Secretary likes it or not. Secretaries may defer enforcement of certain matters on a case by case basis, but Secretaries lack the authority to skip the entire administrative process through letters that repeal or disregard entire regulatory structures.
These problems make the lower level political appointments at the Department more important than ever. Someone who understands education and administration needs to steer the ship. If someone does not figure this out soon, the Every Student Succeeds Act will be dead on arrival.
As a way of limiting the Secretary’s power, the Act includes a provision that automatically approves state plans if the Secretary does not reject them within 120 days of receiving them. So if Department’s leadership does not figure out the Act quickly, any state plan that comes through the door will be approved. If a state wants to rate schools on how often they clean their windows, and punish those who clean too infrequently with mandatory ice cream breaks on Fridays, those plans will set the course for education reform.