Betsy DeVos is Not the Schoolpocalypse

The past few weeks, I’ve been forced to spend a lot of time playing the game “Not That Bad.”

The rules of this game are simple: President Trump implements a bad policy, makes a bad decision, or says a bad thing, which is worthy of condemnation. The Cathedral then reacts by describing that policy, decision, or quote in apocalyptic terms, becomes hysterical, and then questions not the wisdom of the policy but its very legitimacy–its legality, its authority, and its membership in the set of things that may be reasonably discussed by reasonable people. In most cases, this overreaction is (in my opinion as a hardcore Rule-of-Law guy) more dangerous to the American system of government than the actual bad things Trump is doing. So then I need to stand up and say, “Hey, guys, it’s Not That Bad,” explain why it’s Not That Bad, and then remember to still mention somewhere that it’s still bad, because the last thing I want is for people to think I’ve turned into a pro-Trumper (or even an anti-anti-Trumper).

This overreaction to Trump’s policies should not surprise me as much as it does, since we saw something similar in the right-wing fever swamps whenever Pres. Obama did… well, just about anything. Indeed, the birther controversy, which was exploited by our new President, rapidly devolved into nothing but a blanket assault on Pres. Obama’s legitimacy. However, the right-wing fever swamps do not control the commanding heights of culture the way, say, Joss Whedon does, so the Trump Freakouts are more dangerous than the Obama Freakouts. Besides, if the election taught me anything, it’s that I substantially underestimated the threat of Obama Freakouts (and the concomitant crisis of truth in conservatism), and should have done more to stand up against them at the time.

So, onto today’s Trump Freakout, about something that is Not That Bad.

Even after everything I’ve seen the past few weeks, I’m still taken aback by the amount of sturm und drang I’m seeing the confirmation of Betsy DeVos as Secretary of Education. A representative comment I just saw:

“This is great. Now I can feel secure my future children will be force-fed Creationism, even though I’m a Jew. And they can forego…let’s see…..math. Perfect.”

Another:

“I am a public school teacher. I am sitting at my desk, which is in a classroom in a public school full of minorities and SpEd students, and I am weeping. I have about 9 minutes left on my lunch break, and I don’t know that I can pull it together in time. I am crushed, absolutely gutted. I am afraid for my students, I am afraid for myself, and I am afraid for this country.”

Granted, those are from Jezebel, not known for its level-headedness, but I’m seeing surprisingly similar sentiments on my Facebook and Twitter news feeds, including from friends. A great many people seem to have this mistaken idea that the Education Secretary is King of Schools, and that America’s schools must now cater to Secretary DeVos’s every whim. Since Secretary DeVos desires the destruction of all public schools (a debatable proposition in itself), the American education system is now pretty much doomed for the next four years. Thus, time for a Trump Freakout.

Now, I don’t know much about DeVos, other than that she should know more about growth versus proficiency, doesn’t have the kind of experience I’d look for in an EdSec nominee’s résumé, yet still made good noises about giving schools more freedom.

I do know a few things about the American system of government.

In reality, the Secretary of Education is about as far from King of Schools as you can get. The Constitution assigns primary responsibility over education to the “states respectively, or to the People.” The federal government has no explicit Constitutional authority over schools. Therefore, Congress can only interfere with education in limited contexts, when justified by another constitutional power.

For her part, the Secretary of Education can only interfere with education in even more limited contexts where Congress has expressly authorized her to do so. That’s not a huge grant of power, and it’s not likely to get bigger in the near future, either: Congressional Democrats are currently in the minority in both houses, but they hold a filibustering minority in the Senate. This means they can block any legislation to grant Secretary DeVos more power unless a large portion of Democrats think it’s a good idea.

So, practically speaking, Betsy DeVos’s job responsibilities are:

• Continue the implementation of the Every Student Succeeds Act (a bipartisan law that replaced No Child Left Behind and reduces federal standardized testing)

• Keep the federal student loan program functioning as-is.

• Distribute various grants, authorized by Congress, to schools deemed eligible.

• Enforce FERPA, a federal law protecting student records.

• Grant regulatory waivers to states that decide they want to try other things, within limits prescribed by Congress.

• Step in to enforce civil rights and disability rights in schools, as mandated by federal law… if states fail to do so on their own.

Compared to the Secretary of State, who can pretty much start a war if he wants to, or the Secretary of Health and Human Services, who has vast powers to transform the national medical insurance market, the Secretary of Education just… isn’t all that big a deal. The best EdSec in the world can’t save a failing school system on his own; the worst would be hard-pressed to destroy a healthy one.

After all, K-12 education in this country is more than 90% funded at the state and local level. The entire federal contribution to the K-12 education system is less than 10%… and a whole lot of that is non-discretionary funding, meaning Secretary DeVos can’t do anything about it. Moreover, the Department of Education is expressly forbidden by federal law from creating or imposing a national curriculum (Common Core’s implementation was legally sketchy for that reason), so you don’t need to worry about Creationism in schools. Besides, DeVos is on record as wanting more state/local control, not less.

So, even if Secretary DeVos wanted to go to war with public schools (she doesn’t), and even if Congress authorized her to do so (they haven’t), there’s really just not that much she can do, given the limited influence of the federal government over education. Even if there were, assuming Secretary DeVos is as unqualified as many of her opponents believe, then she wouldn’t be able to harness the fearsome DoE bureaucracy to do her bidding in the first place. The narrow regulatory windows through which Washington is able to affect education policy are hard to navigate even with a full team of lawyers and bureaucrats in your corner; working against them is not easy at all.

DeVos’s confirmation as EdSec is not that bad.

(Now for the part where I acknowledge what is bad.)

None of this is to say, “Oh, that Betsy DeVos is going to be a terrific EdSec!” (Heck, I don’t even know what a terrific EdSec would look like.) I’m not saying she can’t do bad things.

Heck, I’m quite certain she is going to do things I think are bad. Joy Pullmann at The Federalist has done yeomen’s work documenting the large gaps in DeVos’s record as a true decentralizer, placed DeVos’s idea of school choice under scrutiny, and has repeatedly called attention to DeVos’s support for the Common Core implementation, which I thought was a travesty for federalism. I thought her confirmation hearings went much less badly than most people believed, but Pullmann is right that a lot important questions weren’t even asked at those hearings.  And, hey, as with any Secretary of Education, DeVos’s discretionary power over grants and waivers is hard to use for good, but easy to use for evil. (Hey, Congress, maybe we should stop ceding discretionary power over billions of dollars in funding from Congress to a bunch of unelected officials? Because that whole “power of the purse” thing is there for a reason? Just saying.)

DeVos will also surely do some things I think are good but which other people think are bad. She’ll probably rescind the notorious Obama-era “Dear Colleague” letters, which (even without discussing the policies they embodied) were a travesty of law and federalism based on transparently unsupportable interpretations of Title IX and defended only by the imperial power of an unchecked Executive Branch. But the “Dear Colleague” letters were considered huge victories by feminists and transsexual activists, who strongly supported the underlying policies.

Likewise, if your state or city is bad, you might not want more state/local control of schools. There are people close to me who are gravely concerned about whether their home states will protect their disabled children’s federal rights under the IDEA Act if the federal government isn’t supervising them as closely anymore. Fair enough: disabled kids rule, and deserve the highest standard of care.

So, yeah, Betsy DeVos might be bad, and she might be worth opposing, particularly if you’re a liberal Democrat; I’m not going to dispute that.

But, at the same time, if you’re worried about your local school, the federal Secretary of Education is not even in the Top 20 most important people who shape the day-to-day of your district. There’s no need to weep at your desk. It makes me sad to see people treating a relatively minor federal department like it’s King of Schools. (Among other things, it points to an alarming deficit in our national civics literacy.)

It’s just Not That Bad.

Next time on Not That Bad: James explains why we need to stop having Giant Freakouts about proposed bills, like the one that would withdraw the U.S. from the U.N., that are never in a million years going to get passed into law.