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Janresseger: Betsy DeVos: The Second of Her Two Top Accomplishments This Year

Yesterday this blog explored Betsy DeVos’s greatest accomplishment during her first year as U.S. Secretary of Education. DeVos did not invent school choice, and certainly school privatization had been underway through vouchers and the proliferation of charter schools before she was appointed. Her biggest accomplishment during this year, however, has been to use her position to promote privatization and solidify a narrative that undermines confidence in and support for the public schools her federal department is supposed to oversee.

In her second primary accomplishment: By reducing federal rules and regulations, DeVos has diminished the Education Department’s capacity to protect the rights of students in K-12 public schools and college students with federally backed loans.  Cuts to regulations in the Department of Education have been quietly moving forward. 

Here are Education Week‘s David Bloomfield and Alan Aja commenting on what has happened to rules and regulations in DeVos’s Department this year: “Since taking office last February, the U.S. Secretary of Education Betsy DeVos has eliminated dozens of education directives to school officials… The unprecedented cleansing and revisions of Department of Education guidance to states, school districts, and private schools is passed off largely as a response to President Donald Trump’s simplistic Jan. 30 executive order that agencies remove two regulatory documents for every one issued. Even if, as has been reported, large swaths of the documents the department has eliminated so far have been out-of-date or superfluous, other guidance revisions have grave implications for marginalized students. The department’s headline-making withdrawal of Obama-era policy guidance permitting transgender students to use bathrooms and locker rooms that match their gender identities is just one such example.

The Department also relaxed rules intended to protect students who file complaints about sexual assault. On September 22, the Detroit Free Press‘s Todd Spangler reported: “Education Secretary Betsy DeVos today scrapped a six-year-old guidance intended to better protect victims of sexual misconduct on college campuses, replacing it with an interim rule she says is meant to strike a more appropriate balance between those accused of sexual misdeeds and their accusers… In 2011, then-President Barack Obama’s administration issued a guidance to colleges and universities reminding them of their responsibilities to investigate and respond to allegations of sexual misconduct under Title IX… The new Q&A circulated today takes a different tack: While it allows colleges and universities to decide whether to continue using a lesser ‘preponderance of the evidence’ standard in deciding claims, it also permits them to move to a tougher ‘clear and convincing evidence standard’ if they so choose.”  A spokesperson for the National Women’s Law Center is reported worrying: “It will discourage students from reporting assaults, create uncertainty for schools on how to follow the law and make campuses less safe… This misguided directive is a huge step back to a time when sexual assault was a secret that was swept under the rug.”

In mid-December, the NY Times‘ Erica Green reported on a Department of Education proposal to delay and possibly scrap a rule that has “required states to look at districts that had disproportionately high numbers of minority students identified for special education services, segregated in restrictive classroom settings or disciplined at higher rates than their peers… The rule was designed to address concerns about the overrepresentation of minority students in special education.”  DeVos’s staff have claimed that because almost half of the nation’s school districts have a disproportionate number of minority students in special education, enforcing the rule would be too expensive.

In July, POLITICO‘s Caitlin Emma reported that Betsy DeVos had announced she planned to return the Education Department’s Office for Civil Rights “to its role as a neutral, impartial, investigative agency.” Emma quotes DeVos, explaining in a letter to Senator Patty Murray that the Office for Civil Rights during the Obama years “descended into a pattern of overreaching, of setting out to punish or embarrass institutions…”  DeVos explains that the Obama Office for Civil Rights “all too often handled individual complaints as evidence of systematic institutional violations.”  DeVos declares that her department will speed up processing of complaints by examining only the particular circumstances of each complaint but will no longer examine the circumstances to look for patterns of civil rights violation.  For ProPublica, Jessica Huseman and Annie Waldman add that the Obama Office for Civil Rights, by contrast, required civil rights investigators “to obtain three years of complaint data from a specific school or district to assess compliance with civil rights law.”

Many college loans are federally guaranteed, but in recent weeks the Department has proposed new rules that make it harder for students to present claims that their colleges have defrauded them. The first rule DeVos’s Department seeks to change is known as “borrowers’ defense to repayment.” Here is Michael Stratford for POLITICO: “The Trump administration is considering a significantly stricter standard for when federal student loan borrowers defrauded by their colleges can have their debt forgiven. Borrowers applying for loan forgiveness would face a higher burden of proof and have to individually present evidence that their college’s deception was intentional under a draft proposal circulated by the Education Department… The draft proposal, like the Obama-era plan, calls for loan forgiveness when a college engages in misrepresentation. But it would eliminate a category of claims based on a college breaching its contract with a student.”  Stratford quotes Clare McCann, of the New America Foundation: “‘They’ve made it almost impossible for borrowers to meet the misrepresentation standard by requiring them to demonstrate the intent of the school especially when students don’t have the power of discovery’ to examine the inner workings of a school,’ said Clare McCann… ‘They took every dial and dialed to the far extreme. It really tries to make the regulation as useless as possible.'”

DeVos’s attempt to make it harder for student borrowers to pursue claims that they were defrauded under the “borrowers’ defense to repayment rule” is related to the Obama administration’s crackdown on two predatory, for-profit colleges. Two institutions were shut down, and thousands of their students have created a backlog of applications for loan forgiveness. The Washington Post‘s Danielle Douglas-Gabriel reports that several state attorneys general have sued the DeVos’s Department of Education on behalf of thousands of of students whose claims are unresolved: “The Education Department can discharge federal student loans when a college uses illegal tactics to persuade students to borrow money.  The agency acts under a federal statute known as borrower defense to repayment.  The agency has been inundated with applications from former students of defunct for-profit chains Corinthian Colleges and ITT Technical Institutes. Both spent their final days enveloped in state and federal investigations and lawsuits over alleged fraud, deceptive marketing and steering students into predatory loans.”

DeVos has also delayed the implementation of provisions of another rule, known as “the gainful-employment rule,” which was instituted by the Obama administration to penalize mostly for-profit colleges and trade schools whose students graduate with a disproportionate amount of debt upon graduation compared to their likely salaries.  Under the rule, colleges would have to inform prospective students that their earnings would be unlikely to enable them to pay off their loans. Here is the Washington Post‘s Valerie Strauss explaining how the “gainful employment rule” was supposed to work: “Gainful employment requires that action be taken—including possible expulsion from the federal student aid program—against vocational programs whose graduates leave with heavy student loan debt. Ninety-eight percent of the programs that officials found to have failed to meet those standards are offered by for-profit colleges.”

Government regulations are intended to protect the public. The systematic elimination of oversight by the Department of Education is affecting extremely vulnerable students—children who need special education services—students experiencing discrimination because of their race or sexual orientation—students who have been sexually abused—students who have borrowed thousands of dollars for college only to discover that institutions in which they enrolled misrepresented their program—students whose college has been closed and other colleges will not accept credits the students have earned.

Betsy DeVos is undermining the U.S. Department of Education’s capacity to protect the civil rights of children and adolescents at school.  And she is undermining the economic future of young adults who discover they can no longer pursue their claims for loan forgiveness when the colleges they were attending have defrauded them or closed.

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Jan Resseger

Before retiring, Jan Resseger staffed advocacy and programming to support public education justice in the national setting of the United Church of Christ—working ...