When it Comes to Education, the Federal Government is in Charge of ... Um, What?

Judging by her Senate confirmation process, Secretary of Education Betsy DeVos is one of the most controversial members of President Donald Trump’s cabinet. She was the only nominee to receive two “no” votes from members of her own party, Senators Susan Collins of Maine and Lisa Murkowski of Alaska. On the eve of her confirmation vote, Democrats staged an all-night vigil in which they denounced her from the Senate floor. Following a 50–50 vote, Vice President Mike Pence was summoned in his capacity as president of the Senate to break the tie for DeVos — a first in the Senate’s 228-year history of giving “advice and consent” to presidential cabinet nominees.

Now that DeVos is several months into her tenure as the 11th secretary of education, both her supporters and detractors are paying close attention to the policies she is beginning to implement and how they will change the nation’s public schools. Even for veteran education watchers, however, this is difficult, not only because the Trump administration’s budget and policy proposals are more skeletal than those put forward by previous administrations, but because the Department of Education does not directly oversee the nation’s 100,000 public schools. States have some oversight, but individual municipalities, are, in most cases, the legal entities responsible for running schools and for providing the large majority of funding through local tax dollars.

Still, the federal government uses a complex system of funding mechanisms, policy directives, and the soft but considerable power of the presidential bully pulpit to shape what, how, and where students learn. Anyone hoping to understand the impact of DeVos’ tenure as secretary of education first needs to grasp some core basics: what the federal government controls, how it controls it, and how that balance does (and doesn’t) change from administration to administration.

This policy landscape is the subject of an Ed School course, A-129, The Federal Government and Schools, taught by Lecturer Laura Schifter, Ed.M.'07, Ed.D.'14,, a former senior adviser to Congressman George Miller (D-CA). Schifter has noticed that even for students who have worked in public schools, understanding the federal government’s current role in education can be complicated.

“Students frequently need a refresher on things like understanding the nature of the relationship between the federal government and the states, and what federalism is,” she says. With that in mind, the course begins with a civics review, especially the complicated politics of federalism, then moves on to a history lesson in federal education legislation since the Elementary and Secondary Education Act of 1965, and finally to an overview of the actual policy mechanisms through which the federal government enforces and implements the law. Throughout, students “read statutes, they read regulations, they read court decisions,” Schifter says — activities she believes are essential since there is no better way for educators to understand the law than to consult it themselves.

The civics and history lessons required to understand the federal government’s role in education are of course deeply intertwined and begin, as with so many things American, with the Constitution. That document makes no mention of education. It does state in the 10th Amendment that “the powers not delegated to the United States by the Constitution … are reserved to the States respectively.” This might seem to preclude any federal oversight of education, except that the 14th Amendment requires all states to provide “any person within its jurisdiction the equal protection of the laws.”

At least since the Supreme Court’s Brown v. Board of Education decision in 1954, this has been interpreted to give the federal government the power to intervene in cases of legally sanctioned discrimination, like the segregation of public schools across the country; to mandate equal access to education for students with disabilities; and, according to some arguments, to correct for persistently unequal access to resources across states and districts of different income levels. According to Associate Professor Martin West, the government’s historical and current role in education reflects the conflicts inherent in these two central tenets of the nation’s charter.

Before 1965, the 10th Amendment seemed to prevail over the 14th, and federal involvement in K–12 education was minimal. Beginning with Horace Mann in Massachusetts, in the 1830s, states implemented reforms aimed at establishing a free, nonsectarian education system, but most national legislation was aimed at higher education. For example, the 1862 Morrill Act used proceeds from the sale of public lands to establish “land-grant” colleges focused on agriculture and engineering. (Many public universities, like Michigan State and historically black colleges like Tuskegee University, are land-grant institutions.)

And then, in the late 1860s, the first federal Department of Education under President Andrew Johnson was established to track education statistics. It was quickly demoted to “Office” and was not part of the president’s cabinet. It wasn’t until the mid-1960s that the federal government took a more robust role in K–12 education.

The impetus for the change was twofold. The Supreme Court’s 1954 Brown v. Board of Education decision, which mandated the desegregation of public schools, gave the executive branch a legal precedent for enforcing equal access to education. At the same time, the launch of the Soviet satellite Sputnik I (and the technological brinksmanship of the Cold War more generally) created an anxiety that the nation’s schools were falling behind.

Those threads came together in the Elementary and Secondary Education Act (ESEA) of 1965, a bill designed in part by Francis Keppel, then the commissioner of education (the pre-cabinet-level equivalent of secretary of education) and a transformative dean at the Ed School. The bill was a key part of Lyndon Johnson’s War on Poverty and has set the basic terms of the federal government’s involvement in education ever since.

Rather than mandating direct federal oversight of schools — telling states what to do — ESEA offered states funding for education programs on a conditional basis. In other words, states could receive federal funding provided they met the requirements outlined in certain sections, or titles, of the act.

Title I provides funds to schools with a large percentage of low-income students. Title VI provides aid for disabled children. Title VII allots funds for bilingual education. The amount of funding provided by esea was small at first — around 2 or 3 percent of a district’s budget, according to education historian and former Ed School dean Patricia Albjerg Graham — but too large for states to pass up. The incentives-with-caveats formula allowed the federal government to work around the 10th Amendment and have a greater hand in enforcing the 14th. It provided, in Graham’s words, both the carrot of federal funds and the stick of their withdrawal.

Every major education initiative since 1965 has been about recalibrating the balance first struck by esea. Until 1980, the program was reauthorized every three years, each time with more specific guidelines about how federal funds were to be used (Title I money has to add to rather than replace locally provided education funding, for example). In 1975, the Education for All Handicapped Children Act (now IDEA) ensured that students with disabilities are provided a free appropriate public education to meet their needs. This initial flurry of expansion culminated in 1979, under President Jimmy Carter, with the establishment of the federal Department of Education as a separate, cabinet-level government agency that would coordinate what West calls the “alphabet soup” of the federal government’s various initiatives and requirements.

The Reagan administration briefly rolled back many ESEA provisions, but following the release of the 1983 A Nation at Risk report, which pointed out persistent inequalities in the education system and made unfavorable comparisons between U.S. students and those in other nations, old requirements were restored and new ones added.

The 2001 No Child Left Behind Act (NCLB) marked a new level of federal oversight by requiring states to set more rigorous student evaluation standards and, through testing, demonstrate “adequate yearly progress” in how those standards were met. Flaws in the law quickly surfaced. Standards did not take into account the differences between student populations, and so, according to West, the Department of Education often ended up “evaluating schools as much on the students they serve as opposed to their effectiveness in serving them.”

When the Obama administration came to office, it faced a legislative logjam on education. NCLB expired in 2007, but there was no Congressional consensus about the terms of its reauthorization. The administration responded by issuing waivers to states that did not meet nclb standards, provided they adopted other policies the administration favored, like the Common Core standards. At the same time, the Race to the Top program offered competitive grants that awarded points to states based on their implementation of policies like performance-based evaluations. The two programs were seen by many conservatives as executive overreach, and when ESEA was reauthorized in 2015 as the Every Student Succeeds Act (ESSA), NCLB standardized testing requirements were kept, but the evaluation and accountability systems meant to respond to the results of those tests became the responsibility of individual states. When DeVos was testifying before the Senate in January 2017, the federal government still had a greater hand in public education than it did at any point before No Child Left Behind, but it had also recently experienced the greatest rollback in its oversight since an era of almost continual expansion that began in 1965.

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Back in Schifter’s class, students grapple with simulated versions of the actual dilemma now facing the Trump administration: how to design and implement policy. For Schifter’s students, that means choosing between two final projects: a mock Congressional markup on an education-related bill or a mock grant proposal similar to Race to the Top. For Trump, it means navigating how education policy is shaped by all three branches of government.

Congress has the ability to write statute and distribute funds. If, for example, it releases funds as formula grants, which are distributed to all states on the same basis, it can ensure universal adoption of programs like Title I. Competitive grants like Race to the Top arguably make policy implementation more efficient: the executive branch can regulate, clarify, and be selective about its enforcement of the law. And judicial rulings can redefine what qualifies as implementation of policy, as the Supreme Court did in its 2017 Endrew F. v. Douglas County School Dist. RE-1 ruling, a unanimous decision that interpreted idea as requiring that a disabled student’s “educational program must be appropriately ambitious in light of his circumstances.”

It seems the Department of Education’s approach under DeVos is still taking shape. Some of its actions have been swift and decisive. In February, the Departments of Justice and Education jointly announced they were rescinding the Obama-era guidance protecting transgender students’ right to use a bathroom corresponding with their gender identity.

In other areas, however, the department’s positions have been vague. On Inauguration Day, the administration ordered a freeze on state evaluation and accountability plans for schools, which under essa must be federally approved. In a February 10 letter to chief state school officers, however, DeVos said states should proceed with their proposals. If the department is lenient in its evaluation of these plans, it would amount to a de facto rollback in federal oversight because the Department of Education would be choosing not to exercise its powers to the full extent permitted by law.

Similarly, while there was much talk during DeVos’ confirmation hearings about the extent to which she would advocate for school choice and voucher programs, and while Trump praised school choice during an address to a joint session of Congress, it is still unclear what forms this advocacy will take. Many people had expected the administration’s tax plan to include a tax credit for donations to private school scholarship foundations.

The administration’s proposed budget, released in May under the title “A New Foundation for American Greatness,” calls for $500 million dollars in new charter school funding — a 50 percent increase over current levels, but less than the $759 million authorized over the first two years of the George W. Bush administration. The budget also allots an additional $1 billion in “portable” Title I funding, meaning the money would follow students who opt to attend charter or magnet schools (currently it stays in their home districts). Under ESSA, however, much of what was once overseen by the Department of Education has now reverted to the states.

“Ironically, we will see an administration that will be reluctant to dictate specific policies,” says Professor Paul Reville, the Massachusetts Secretary of Education under former Governor Deval Patrick. This doesn’t mean, of course, that the Department of Education and the administration are unable to exert influence, but it appears they are planning to do so through cutbacks rather than new initiatives. Trump’s budget proposes a 13.5 percent cut in the Education Department’s 2018 budget, including a $2.3 billion cut that would eliminate Supporting Effective Instruction States Grants, which fund teacher training and development.

And cutbacks in other areas could also affect students, since not all federal funding for schools comes from the Department of Education. For example, money for the Healthy Hunger-Free Kids Act, whose school lunch nutritional guidelines were recently loosened by an executive order, comes through the Department of Agriculture. Public school employees like occupational and physical therapists bill much of their work through Medicaid, which also provides dental, vision, hearing, and mental health services. Programs like this are at risk in part because the administration’s proposed budget cuts Medicaid by $800 billion dollars.

Beyond the budget specifics, there is also the power of the presidential bully pulpit. Reville cites evidence that the administration’s rhetoric on charter schools and vouchers has already put conservative state governments “on the move, emboldened by the new federal stance on choice.”

The administration’s budget is only, however, a wish list. The actual power to determine federal expenditures rests in the House and the Senate, and even in years of less drastic proposals, legislators often pass a federal budget that looks quite different from the one suggested by the president. Trump’s budget has received pushback, and for some education-minded conservatives, the administration’s advocacy on their behalf is unwelcome. Frederick Hess, Ed.M.'90, director of education policy studies at the American Enterprise Institute, believes in school choice — but worries what will happen if Trump pushes for it.

“The last thing we want,” Hess says of school choice, “is for the least popular, most maladroit leader in memory to become the advocate for an otherwise popular idea.”

Not everyone agrees with Hess’ assessment of the president, of course, but his concerns do illustrate a basic idea about policymaking that Schifter has borrowed from political scientist John Kingdon and tries to pass on to her students. For any given idea to become a legal reality, the theory goes, policy proposals are only one part of a triangle. Politicians must also effectively prove the existence of the problem, and they must do so at a moment in history when the fix they are proposing is politically possible. For Lyndon Johnson in 1965, the problem was that the nation’s schools were not serving all students equally. The solution was for the federal government to distribute funds in a way that would correct the balance. The political moment was when both Cold War anxieties and newly robust understandings of the 14th Amendment made the changes possible. The result was a new relationship between the federal government and the states on education policy.

Although the Trump administration has outlined some first principles, both its ability to make its case to the American people and the possibilities of this unprecedented political moment remain to be seen.

Brendan Pelsue is a writer whose last piece in Ed. looked at gap year programs.

Illustrations by Simone Massoni