Wednesday, May 23, 2018

Betsy DeVos Again Shows That There Is No Level of Knowledge That We Can Assume on Her Part; Yes, Undocumented Students Do Have a Right to Attend School

Devosdearcolleague2

Last week, I wrote that Secretary Betsy DeVos is not nearly as niave as we might want—or desperately need—to believe.  She has an agenda and her moves over the past few weeks and months reveal that she is deadset on wreaking havoc and more than willing to use every ounce of power she has to do it.  What I forgot to emphasize is that she still has a huge competency problem. Her performance on Capitol Hill yesterday showed that there is no baseline of knowledge or competence that we can safely assume on her part.  As one commentator remarked of her performance, Devos "makes Sarah Palin look like a Rhodes scholar."  I generally try to avoid personal attacks of this sort, but it struck me as revealing a painful underlying truth. Screaming about DeVos's flaws or just reporting events does not really do justice to the problem.  It takes comparative analysis with facts and law to appreciate the problem.

But let’s recap her agenda first.  She has claimed that the way to “make education great again in this country” is to let “states set their own high standards” and let “let control” reign free.  But what she really means is that she hates federal power, except when she likes it.  And she likes it more and more when it suits her interests, like when she is evaluating state education plans under the Every Student Succeeds Act.  She called her questionable exercise of power “tough love.” She also likes federal power when it means she can pick and choose which investigations to push and which ones to shut down when they cut too close to her personal interests and agendas.  That's why she effectively shut down investigations into widespread abuses by for-profit colleges, even though the Department of Education may be the only one who can provide meaningful help to victims at the local level.  There is no obvious local control issue here.  It is quite simply a federal job she doesn't want to do.

We could say the same about the Office of English Language Acquisition (OELA).  This office is devoted exclusively to the fastest growing student populations in the country—English Language Learners (ELL).  Public schools enroll more than 5 million ELL students.  English Language Learners hold a unique place in federal education law.  Under federal law, schools owe ELLs, unlike every other student group save those with disabilities, an affirmative obligation. Thus, it is strange that it is here that she wants to use her federal power to close this office and shift its work to another office in the Department of Education.

But then hearings like yesterday happen.  We have to remind ourselves that although she has an agenda, she really doesn’t know what she is doing.  Time and again, she reveals that she has absolutely no grasp of the basic rules of the road on which she is traveling.  She instead makes her way based on gut instincts that are wrong more often than not.  They are wrong because her instincts are grounded in political agendas that do not come close to approximating the law as it stands—the law that is her job to administer and reinforce, not twist and ignore.

In her testimony before the House Education and the Workforce Committee yesterday, she said that local schools can decide for themselves whether to call U.S. Immigration and Customs Enforcement on students whom they suspect as being undocumented.  “That’s a school decision. It’s a local community decision.”

No. Noooo. Noooooo. Not it is not.  In 1982 in Pyler v. Doe, the United States Supreme Court held that public schools cannot exclude undocumented students from public school, discriminate against them, or impede their access to equal education.  The state offered lots of reasons why it should be able to—helping the federal government do its immigration job, preserving resources for lawful residents, protecting itself from an influx of immigrants, and avoiding the waste of resources on students who may not remain in the state--and the Court rejected them all.

[W]hile it is apparent that a State may “not ... reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,” appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State. As the District Court noted, the State failed to offer any “credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.” . . . Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are “basically indistinguishable” from legally resident alien children.

Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State's borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.

This flows from the general principle

that “all persons within the territory of the United States,” including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government. . . . [T]he Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State.

A few years ago, Alabama thought there was wiggle room in Plyler v. Doe’s holding, so it passed legislation that would keep tabs on whether students were documented without actually excluding them.  A quick lawsuit in federal court showed they were wrong.  Alabama agreed to a settlement, under which the state would permanently refrain from “requiring schools to verify the immigration status of newly enrolled K-12 students.”  In 2014, the Departments of Education and Justice issued a Dear Colleague Letter reconfirming this point to school districts.  The letter stated:

Under Federal law, State and local educational agencies (hereinafter “districts”) are required to provide all children with equal access to public education at the elementary and secondary level. Recently, we have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status. These practices contravene Federal law.

At this point, we might ask what's worse: bad policy executed by competent people or bad policy executed by incompetent people.  I often think the former is worse, but then remind myself that competent people, at least those who know the rules of the road (ie the rule of law), don't drive the car off the road into a ditch because they didn't read the warning sign "Dangerous Curve Ahead."  And even when they are running behind for a meeting to terminate benefits for the poor, they realize that they cannot drive through a school zone at 60 miles per hour with the police office watching and still expect to get to work on time. 

We should not have to underline warning signs in red for the Secretary of Education.

http://lawprofessors.typepad.com/education_law/2018/05/betsy-devos-again-shows-that-there-is-no-level-of-knowledge-that-we-can-assume-on-her-part-yes-undoc.html

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