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Op-Ed: Betsy DeVos Is Our New Education Secretary. Now What? 4 Ways ESSA Protects Against Your Worst Fears

Betsy DeVos, one of Donald Trump's most controversial cabinet appointments has narrowly been confirmed as the country's next secretary of education.

In fact, it doesn't get much more "narrowly" than what happened during DeVos' confirmation vote yesterday. After two Republican senators decided to listen to their constituents and break with their party to oppose DeVos, the Senate was left with a 50-50 tied vote. In a historic moment, the vice president was called upon for the first time in history to break a tied vote for a president's cabinet nominee; Vice President Pence voted in favor of DeVos' confirmation.

The confirmation came as a shock to the staunch opponents of DeVos, a group that was further energized after DeVos gave a mediocre performance during her confirmation hearing, unable to give strong answers to the questions asked by Democrats angered by the lack of time allotted to ask said questions.

Opponents remain concerned that DeVos' wealthy background, inexperience working in or dealing with public schools, and her support for controversial school reform ideals not yet fully supported by research will result in her effectively ruining education, especially public education, for years to come.

Here's some relief from opponents who are fearful that DeVos' untraditional background coupled with her high position of power will mean the end of progress in education as we know it. Here are four reasons why your very worst fears about DeVos' influence on education will not come true thanks to the protections included in ESSA.

1. The Every Student Succeeds Act Significantly Limits the Education Secretary's Power

The No Child Left Behind era demonstrated what happens when the federal government exerts too much control in education; this legislation was widely criticized and despite good intentions failed to meet its goals of improving low-performing schools and while it identified disadvantaged students failed to help them better succeed.

In response to this era of heavy-handed federal oversight, lawmakers came together and created the Every Student Succeeds Act (ESSA), a reauthorization of the Elementary and Secondary Education Act (ESEA) designed specifically to give more power back to the states and local governments.

Under ESSA, the secretary of education no longer has the power to incentivize states to adopt a particular set of standards or have the discretion to reject state plans that are in compliance with the federal law. In other words, so long as state plans include standards aligned to college coursework, implement assessments that have been reviewed and approved as defined by ESSA's parameters and include indicators for each subgroup of students, there is nothing the education secretary can do to incite change.

This includes promoting or even incentivizing school choice or voucher programs for states that do not wish to adopt them. "The Secretary may not 'promulgate any rule . . . that would add new requirements [or new criteria] that are inconsistent with or outside the scope of the law," ESSA declares.

If DeVos were appointed to education secretary during a different time, she'd have access to a much larger number of powers that would allow her to change education according to her beliefs. And given the fact that she has said she will interpret ESSA as Congress intended, standing-by its desire to transfer power back to local control, there's no indication yet that she will try to do otherwise.

2. School Choice Was Specifically Excluded from ESSA. See: Title I Portability

For those still concerned that school choice through voucher programs and consequentially the mandated siphoning of money from public schools will be a reality for their state in the near future, there is once again solace to be found in ESSA.

As Ed Choice points out, provisions potentially allowing for federal support of school choice were purposely excluded from ESSA during its creation:

"During the summer of 2015, an amendment to the House version of ESSA (H.R. 5) would have allowed for complete portability of Title I funds, including the ability of students in states that opted-in to have their funds follow them to private schools of choice. But the original amendment including portability to private schools was tabled, and a subsequent watered-down version, which did not include private schools, was considered. Even that weaker option, which would have allowed portability only to public schools and public charter schools, failed to make the final bill. ESSA, as signed into law, allows for no Title 1 portability whatsoever."

In other words, once again, school choice and what comes with it are decisions that must be determined by state governments, not a federal one managed by DeVos.

3. ESSA Requires States to Identify Students by Subgroups, Tell Parents

Even if DeVos' lack of experience results in her being ill-equipped to take on the huge task of overseeing an office designed to protect the civil rights of America's students, at the very least ESSA has included several provisions that will protect America's disadvantaged students.

All schools must report student achievement in subgroups that include the performance of students in special education, minorities, those in poverty and those learning English. While this was also required under NCLB, ESSA now requires that schools make this information public by reporting it directly to parents. This provides parents, who are many of the individuals concerned about DeVos' leadership, the opportunity to take matters into their own hands somewhat.

Also for the first time, ESSA requires that the federal government aggregate data on youth living in homelessness, foster youth and military youth to determine how to best protect their rights going forward.

4. Educators Allowed More Liberties with ESSA's Support of Personalized Learning

For educators concerned that DeVos, a woman who has never taught and has very minimal experience within schools, will be too far removed to understand their needs, there is some peace of mind to be found in ESSA.

ESSA does away with trying to define what a "highly qualified" teacher is as NCLB did in a severely limiting fashion. ESSA provides support for principals and school leaders, and allows states flexibility when it comes to developing assessments, offering certain student services and more.

There, Of Course, Are Still Reasons to Worry

While ESSA prevents against the doomsday-outlook that many DeVos' opponents have in mind when thinking about the future of education, there are still some reasons to be concerned if you don't agree with her ideals.

Yes, DeVos will be subjected to limited power thanks to ESSA. However, she will still have plenty of power in her role to influence education on a national level according to her beliefs. According to KnowledgeWorks, under ESSA the education secretary has the power to do things like:

  • award grants to entities to create, develop, implement, replicate, or take to scale entrepreneurial, evidence-based, field-initiated innovations to improve student achievement and attainment for high-need students
  • award grants to entities to "improve the academic and developmental outcomes of children living in the most distressed communities of the United States"
  • award grants for "the planning, implementation, and operation of full-service community schools that improve the coordination and integration, accessibility, and effectiveness of services for children and families, particularly for children attending high-poverty schools, including high-poverty rural schools.”

Just these powers alone give an idea for the kinds of discretionary decisions DeVos will soon be making.

Further, while ESSA attempts to continue to hold states accountable for disadvantaged students, many civil rights groups will tell you that these provisions aren't perfect. Take, for instance, The Advocacy Institute's assessment of ESSA and its protections for students with disabilities:

"...every element has important application to students with disabilities! Students with disabilities are disproportionately poor, taught by ineffective or out-of-field teachers, subject to bullying and harassment, experience much higher rates of suspension and expulsion, and criminalization of their behavior and referral to the juvenile justice system, retention in grade, dropping out, and placement in foster care. Therefore, each of these provisions within a State plan should include specific information about students with disabilities, not simply broad generalities,” it says.

Given that DeVos made it clear during her hearing that she has little understanding of what kind of protections students with disabilities need, it could be a reasonable concern that she might not assume the role of becoming the champion that disadvantaged students need.

Regardless, not much will be known about DeVos' Department of Education until her choices for deputy secretary and similar positions are announced.

Nicole Gorman, Senior Education World Contributor

2/8/2017

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