Tuesday, December 13, 2016
Two big challenges will face advocates in dealing with the Department of Education in the coming years: 1) insisting that it enforces civil rights law and 2) stopping it from excesses of power. Advocates will have relatively few tools in their bag to force the Department to do its civil rights job, but they will have clear statutory language and powerful precedent on its side to stop the Department from going beyond its job. On this second point, one need look back no further than the recent controversies surrounding the No Child Left Behind Act (NCLB).
In the process of writing Federalizing Education by Waiver?, I spent a good deal of time worrying about whether I was being fair in my assessment that Secretary Duncan had exceeded his power in imposing various conditions on the statutory waivers he began granted under NCLB. To be honest, when he initially rolled the waiver process out in 2012, I paid almost no attention. The process was bureaucratic, something had to be done to avoid the sanctions that NCLB would have required, and almost anything seemed better than the decade of high stakes testing our schools had endured. I saw little need to crack open the statute and seriously consider the matter.
Common Core, as a matter of substance, did not pique my interest either. Lesson plans and what is actually taught in K-12 curriculum goes beyond my expertise. I found the new teacher evaluation systems curious primarily because they relied so heavily on the standardized tests everyone had railed against for years, but the systems were so complex that, again, I did not dig deeper. It was really only the growing power of the Secretary between 2012 and 2014 and the sense that he might just do anything he wanted in elementary and secondary education that finally gave me pause. And it was because I was generally neutral as to the substance of his policies that I reassured myself that my conclusions were sound and I was not simply crying foul because I disliked his policies.
My conclusions in Federalizing Education by Waiver? and proscriptions for the future seem all the more valid and important now. The point of the article was to take executive power seriously, even when your friends are the ones exercising it, because some day some one other than your friends may exercise it. And the best way to maintain credibility in calling out those with whom you disagree is to call out your friends for the same thing. So while the NCLB waiver process and the legal issues it raised seemed to fade into nothing last year when Congress replaced NCLB with the Every Student Succeeds Act, I am glad I wrote the article (and later testified against the department). And the importance of statutory text and the limits it places on executive power remain crucially important to those who may disagree with the privatization model that Trump administration intends to pursue.
As I wrote yesterday, it is not clear that Betsy DeVos really knows what her job is and what its limits will entail. Should she secure the job, I hope that her general counsel will read the Every Student Succeeds Act carefully and advise her as to what it makes abundantly clear: the Secretary now has very limited power and will serve more as a figure head and paper pusher than anything else. If she attempts more than this, Republicans should challenge her use of executive power as forcefully as they did that of the prior administration. Surely, Democrats will be right beside them.
This time around, I clearly disagree with the substance of the policies the administration is proposing. But if DeVos, or any one else, seeks to impose or cajole them through the Every Student Succeeds Act, I will oppose them because they are beyond the Department's power.