The new federal law Every Students Succeeds Act, replacing No Child Left Behind, gutted many powers of the Secretary of Education. In this new legal landscape, the Secretary's greatest and most destructive power thus may be the ability to do nothing on key issues of oversight and educational equity.
Out-going Secretary of Education John King, in his valedictory interview with Politico.com, emphasized that the Education Department is a "civil rights agency." He said: "We have a responsibility to protect the civil rights of students. No matter who the secretary or the president is, that civil rights mission is critical."
Trump nominee Betsy DeVos' failure to share that vision should result in her rejection by the Senate.
Though Congress can change the present arrangement disempowering the Secretary, the betting is that they will retain their prerogative to set the country's education agenda. This leaves DeVos without the power to initiate programs but she will retain great oversight and enforcement authority, with the role of the Department's Office of Civil Rights (OCR) looming large.
As U.S. Senator Elizabeth Warren pointedly asked in her letter to the nominee in advance of DeVos' hearings, "What are your specific plans for ensuring that states and local districts hold schools - particularly for-profit charter schools - accountable if they are discriminating against or failing to educate students? What specific measures will you use to identify discrimination or failure to appropriately educate students?"
This oversight function is crucial to the Department's role in assuring appropriate use of public funds and where DeVos' record falls short. She has never had a managerial role nor has she worked in public education so her ability to handle the responsibility is questionable. More so, as an avowed regulatory opponent, her leadership of what is for the most part a regulatory agency contradicts its mission.
According to the education news website Chalkbeat, she and her husband led opposition to strong oversight of Michigan charter schools, resulting in the conclusion that "state authorities have done little up to now to ensure that charter schools are effectively serving students," an indication that she will bring a weak hand to external regulation consistent with her belief that market forces will somehow do the trick.
Especially troubling is DeVos' disinterest or even antagonism to strong civil rights enforcement. The Obama Administration used OCR to promulgate and enforce a raft of requirements and guidance to equalize school policies and practices for students of color, immigrants and those with learning English, girls, LGBT students, the disabled, and other traditionally marginalized groups.
In addition to the Administration's well-known application of Title IX requiring schools to protect transgender students from violence and to treat them equally, Obama exposed racial disparities and extremes in school discipline requiring state reporting of suspension data, put forward guidance to encourage diverse enrollments, actively sought solutions to school and cyber-bullying, and took on gender discrimination in extracurricular activities, charter schools, sexual violence, pregnant and parenting students, and other areas of potential inequity.
The Leadership Conference on Civil and Human Rights (and similar advocacy organizations) have cited DeVos' affiliation with groups hostile to affirmative action, LGBT rights, concerted action in response to sexual violence, and the separation of church and state. At least as troubling, like much in her record, is the absence of civil rights advocacy. Related to these reservations is the record of U.S. Senator Jeff Sessions, Trump's nominee for Attorney General, since OCR often works in tandem with the Justice Department's Civil Right Division in enforcement of student civil rights.
If DeVos is confirmed, she will bring to the job not just a spotty record but one that raises serious doubts about her commitment to the job. The Department of Education must enforce requirements of the Constitution, the Civil Rights Act, the Individuals with Disabilities Education Act, Elementary and Secondary Education Act, Title IX, the Rehabilitation Act, and many more. So unless the Constitution and underlying statutes are substantially rewritten, the Secretary will be responsible for carrying them out, as the Cabinet Secretary's oath demands, "without . . . purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter."
It is up to the Senate in its questioning to resolve these doubts or deny confirmation. Though likely to conclude with consent, this should not be a scripted outcome. Soft soap won't wash. DeVos needs to demonstrate an active commitment to the Secretary's duties. An intention to do nothing is unacceptable.
David C. Bloomfield is Professor of Education Leadership, Law, and Policy at The CUNY Graduate Center and Brooklyn College. He is the author of American Public Education Law, 3rd edition (2016).