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DeVos Says IDEA, Other Federal Laws Apply to Private Voucher Schools, but No Pledge on LGBT

By Carolyn Phenicie | June 6, 2017

Photo: Getty Images
“Schools receiving federal funds must follow federal laws” was Education Secretary Betsy DeVos’s refrain of the day, going further than she has before in addressing civil rights protections and private school choice.
DeVos, testifying before a Senate subcommittee with jurisdiction over Education Department spending, faced sharp questioning from Democrats over whether federal laws banning discrimination and guaranteeing students with disabilities an appropriate education would apply to a $250 million private school choice plan included in the Trump administration’s 2018 budget.
Under questioning from Sen. Patty Murray, the subcommittee’s senior Democrat, DeVos said the Individuals with Disabilities Education Act would “absolutely” apply to the proposed choice program. That 40-year-old law guarantees a free, appropriate public education, in the least restrictive environment, to students with disabilities. Private schools, unless they’re serving students who couldn’t be served at a public school, are not typically subject to IDEA.
Neal McCluskey, the director of Cato’s Center for Educational Freedom, said DeVos’s answer wasn’t totally clear. If she meant private schools have to pay for all services for children with disabilities the same way public schools do, that would be a huge intrusion and financially impossible, he said via email. But if she meant IDEA students who take vouchers retain their rights, but those rights are only applicable at public schools, “she needs to be clear about that.”
In other areas, DeVos was more assertive in her answers than she has been at previous appearances on Capitol Hill where lawmakers have often been aggressive and DeVos has at times appeared uncertain. At Tuesday’s hearing, she repeatedly said that programs receiving federal funds would have to abide by federal civil rights laws.
Federal law generally doesn’t allow discrimination based on race. There are exemptions for religious organizations in Title IX, which bans discrimination based on sex in education, and in laws prohibiting discrimination based on religious affiliation.
What she didn’t pledge was that the schools would have to accept LGBT students.
(The 74: Some Private Schools That May Benefit From Trump’s Voucher Plan Are Weak on Discrimination Rules)
There is no federal law prohibiting discrimination based on sexual orientation or gender identity in schools. The Obama administration had interpreted Title IX as applying to gender identity as well as biological sex. The Trump administration, reportedly over DeVos’s objections, overturned that interpretation earlier this year.
Oregon Democratic Sen. Jeff Merkley noted that in that area, the law is “murky.”
In areas where federal law is unclear, the Education Department won’t offer its own interpretation, DeVos said.
“On areas where the law is unsettled, this department is not going to be issuing decrees. That is a matter for Congress and the courts,” she said.
Merkley, who in 2013 sponsored a bill that would ban employment discrimination based on sexual orientation and gender identity (with an exemption for religious employers), couldn’t get a solid answer from DeVos on whether existing law would allow discrimination against LGBT students receiving a hypothetical federal voucher.
“I said it before, and I’ll say it again, that schools that receive federal funds must follow federal law,” DeVos reiterated.
The answers were a pivot from her responses to a similar line of questioning last month before a House Appropriations subcommittee. There, she said it would be up to states to set the specific requirements for their own voucher programs.
(The 74: DeVos Clashes With Democrats Over Federal Protections in School Choice Budget Proposals)
There was some support from Republicans for the choice proposals.
Louisiana Republican Sen. John Kennedy said it’s absurd that he can pick from six types of mayonnaise at the grocery store but parents can’t decide where to send their children to school.
He asked DeVos, a Michigan billionaire who has attracted more attention and generated more controversy than perhaps any prior education secretary, if she knew that some people didn’t like her because of her support for school choice policies. She joked that she is “peripherally aware” of it.
“I don’t care what the political cost is,” Kennedy said. “I’m willing to try just about anything to improve elementary and secondary education, including vouchers, including school choice, including charter schools.”
Skepticism of big cuts
The response to the budget overall, in particular its large-scale cuts and outright eliminations of major education programs, was cool at best, from both Democrats and Republicans.
(The 74: Trump Ed Budget Fleshes Out Choice Proposal, Justifies Deep Cuts)
“It’s likely that the kinds of cuts that are proposed in this budget will not occur,” subcommittee chairman Roy Blunt, Republican of Missouri, said within the first minute of the hearing.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the full Appropriations Committee, said the Trump administration budget “displays a fundamental lack of understanding of the role of government of, by, and for the people.”
There was bipartisan concern about the proposed elimination of the 21st Century Community Learning Centers, which funds before- and after-school programs and summer learning opportunities, and cuts to career and technical education and the GEAR UP and TRiO programs that help first-generation, low-income, and special education students prepare for and graduate from college.
Democratic Sen. Jeanne Shaheen of New Hampshire said her state doesn’t have the budget to cover the proposed cuts, particularly to the 21st Century Community Learning Centers program.
“When you eliminate those efforts that are making a difference for those students … they don’t have any other options,” she said. “What are we telling those students, who are going to see their lives changed and disappointed because these are no longer available to them?”
Democratic Sen. Brian Schatz of Hawaii also asked about the proposed elimination of Title II grants that fund teacher training and class-size reduction. West Virginia Sen. Joe Manchin, also a Democrat, asked about the proposition to eliminate the Title IV grants that fund a host of extra K-12 education programs, including drug prevention.
“We are getting pummeled by the opiate addiction that goes on in our state … I don’t know whether you all realize the effect this is having,” Manchin said.
Looking ahead to ESSA
Sen. Chris Murphy of Connecticut emerged as one of the vocal accountability hawks during the debate on what became the Every Student Succeeds Act and congressional efforts to end some Obama-era rules implementing its accountability provisions.
Tuesday he said he has become concerned about some states writing plans that don’t include meaningful interventions to turn around schools that are failing, either broadly or with specific groups of students. He asked DeVos whether she could foresee rejecting state plans with inadequate interventions — say, a state that proposes repainting school walls to improve performance.
(The 74: Student Advocates Sound the Alarm: States’ ESSA Plans Will Fail the Underserved Kids the Law Was Built to Protect)
“I just want to make sure you’re not going to be a rubber stamp for these plans and you’re going to actually hold states to the requirements, especially when it comes to these really vulnerable kids,” he said.
DeVos said she’d judge the plans by whether they follow the law.
“If they follow and address all the parts of the law, as Congress has intended, the plans will have to be approved. Whether I agree with everything in the plans or not, is another question,” she said. “And whether you agree with everything in the plan, whether it’s robust enough or not, that obviously could be a matter for interpretation as well.”
It’s up to the states and local communities to determine what supports they’ll implement, and those efforts will vary from state to state, she said.
“I cannot say that” there are any proposed supports that meet the requirements of ESSA that wouldn’t be approved, she said.
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