Secretary of Education Betsy DeVos loves rolling stuff back. Whether we’re talking about guidelines for making bathrooms accessible to transgendered students; directives for conducting civil rights investigations; or Title IX guidelines for investigation of sexual assault on campus, DeVos just can’t get enough of deregulation.
Behold her newest target: students with disabilities. In October of 2017, DeVos issued a statement indicating that she’d axed seventy-two guidelines advising schools on how to manage their obligation under the Individuals with Disabilities Education Act (IDEA). Her Department identified these directives as “outdated, unnecessary, or inefficient.”
These guidelines were not particularly onerous nor were they intrusive on the rights of schools to manage their obligations to students with special needs. They were, instead, a spectrum of informational resources designed to improve the ability of schools to manage these special needs with care, compassion, and effectiveness. The value and need for these guidelines was in the clarity they provided to states, districts, schools, parents, educators, students, lawmakers, attorneys, and anybody else with a vested interest in better understanding the subject.
DeVos should count herself among them.
Indeed, based on the Secretary’s brief public history on this issue, the best we can figure is that she couldn’t understand the guidelines, so she just jammed them in a paper-shredder. We’re not saying this to be insulting or glib. It’s just that, for the life of us, we can’t really see the benefit of rescinding these guidelines. Moreover, it’s pretty easy to see who it would hurt.
And when you cast all of that in the light of DeVos’s revealing comments during her confirmation hearing back in January — which suggested beyond a reasonable doubt that she was neither familiar with nor fully comprehended IDEA — it’s hard to come up with another explanation for this decision.
It may take some time to see how the removal of these guidelines really impacts districts, schools, and students with special needs. At the moment though, we are left to consider both the intent of these rollbacks and the content of the guidelines which have been chucked to the wastebasket. However you approach it, the net effect of this decision will be poorer distribution of resources, diminished access to equal opportunity, and less clarity in discussions about our collective responsibility to our most vulnerable children.
On the bright side, if you hate poring over long legal documents, the IDEA is now a shorter read.
Betsy DeVos Has No IDEA
Before we can consider the intent of the rescinded guidelines, let’s take a look back at the Secretary’s exceedingly brief history with IDEA. Remember, DeVos came into this role without any experience in education, administration, or policy development. Her only real background has been as a lobbyist for private and charter schools, and a staunch contributor to GOP causes in her home state of Michigan. One of the most stark reminders of both her inexperience and her private affiliations bubbled to the surface during her confirmation hearing when Tim Kaine, the Democratic Senator from Virginia, raised the issue of IDEA.
If this is the first you’re learning about IDEA, you can be forgiven. After all, it’s not like you are sitting for confirmation as the headmaster of education in America. However, it’s not as easy to forgive Betsy DeVos for the following exchange with Senator Kaine. (You can also watch the dialogue here.)
Kaine: Should all K–12 schools receiving governmental funding be required to meet the requirements of the Individuals with Disabilities Education Act?
DeVos: I think they already are.
Kaine: But I’m asking you a “should” question. Whether they are or not, we’ll get into that later. Should all schools that receive taxpayer funding be required to meet the requirements of the Individuals with Disabilities Education Act?
DeVos: I think that is a matter that’s best left to the states.
Kaine: So some states might be good to kids with disabilities, and other states might not be so good — and then what? People can just move around the country if they don’t like how their kids are being treated?
DeVos: I think that’s an issue best left to the states.
Kaine: What about the federal requirement? It’s a federal law, the Individuals with Disabilities Education Act. Let’s limit it to federal funding: if schools receive federal funding should they be required to follow federal law — whether they are public, public charter, or private?
DeVos: As the Senator referred to —
Kaine: Just yes or no — I’ve only got one more question.
DeVos: There’s a Florida program. There are many parents that are very happy with the program there.
Kaine: Let me state this: I think all schools that receive federal funding — public, public charter, or private — should be required to meet the conditions of the Individuals with Disabilities Education Act. Do you agree with me or not?
DeVos: I think that is certainly worth discussion and I would look forward to —
Kaine: So you cannot yet agree with me.
Senator Maggie Hassan, the Democrat from New Hampshire, raised the issue again later in the hearing. Hassan explained to DeVos that IDEA is a federal civil rights law and that it is not up to states to decide whether or how to follow its conditions. This exchange followed (watch the dialogue here):
DeVos: Federal law must be followed where federal dollars are in play.
Hassan: So were you unaware, when I just asked you about the IDEA, that it was a federal law?
DeVos: I may have confused it.
Senator Hassan, who is the parent of a disabled child, expressed her deep concern that the woman who would become Secretary of Education was unfamiliar with such a critical federal policy.
DeVos promised that she would be “very sensitive” to the needs of disabled students.
Groups advocating for the rights of disabled students were skeptical:
The mission of the Department of Education must be to advance a national system of quality public education and protect the rights of all children, including children with disabilities, within that system. Ms. DeVos’ testimony during her confirmation hearing, together with her lengthy record of supporting the diversion of public tax dollars to private schools that limit the rights of students with disabilities, indicate that as Secretary she would undermine that critical mission.
In a statement from the Council of Parent Attorneys and Advocates (COPAA), executive director Denise Marshall said:
It’s clear that Betsy DeVos is not, nor has ever been an advocate for children with disabilities. The fact that she didn’t understand the basics about education concepts or the three essential federal education laws is embarrassing and her lack of knowledge on the Individuals with Disabilities Education Act (IDEA) is appalling. We are alarmingly concerned. Furthermore, she advocates for vouchers writ large — as if they can solve every family’s dilemma.
As you know by now, none of that stopped DeVos from ascending to office. At about the same time the DeVos was getting settled into her new role in February, Donald Trump was signing a purposefully vague and far-reaching executive order on “Enforcing the Regulatory Reform Agenda.” The order was designed to give the executive branch far-reaching authority in rolling back federal regulations in all aspects of government. Indeed, it has been the policy foundation for much of what DeVos has accomplished since arriving at the Department of Education.
Ok. That more or less brings us up to speed on that.
The Department of Education’s most recent action suggests that the fears of disability advocates have been well-founded.
Indeed, DeVos essentially rescinded these guidelines in the cover of night. Though she revealed the decision in late October, she was in fact reporting on actions that she had quietly taken three weeks prior. No one told us, but we’ve been flying blind on the subject for weeks, to say nothing of the outages that have plagued the Department of Ed’s IDEA resource webpage since the start of the DeVos era.
This action was the culmination of process that began over the summer, when the Department courted public comment on “regulations that may be appropriate for repeal, replacement, or modification.”
This immediately raised alarms for advocates of students with disabilities. In response to the Trump Administration’s call for comments, Mikki Garcia, president of the Council for Exceptional Children stated:
The IDEA regulations and guidance identified by the Regulatory Reform Task Force for possible repeal, replacement or modification have been established through a comprehensive process as prescribed by the Administrative Procedure Act . . . The evaluation of existing regulations and guidance for the purpose of repeal, replacement, or modification is unconventional and ill-advised.”
Still, this unconventional and ill-advised initiative ultimately informed the removal of seventy-two specific guidelines — sixty-three pertaining to the Office of Special Education Programs (OSEP) and nine relating to the Rehabilitation Services Administration (RSA).
Here are just a few of the important guidelines that were just axed:
- Employment Goal for an Individual with a Disability
- Guidance on Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities.
- Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools
- Obligations of States and Local Educational Agencies to Parentally-Placed Private School Children with Disabilities
- Guidance on including Students with Disabilities in Assessments
- Clarification on State Eligibility and Public Participation
- Joint DCL including Students with Disabilities in All Educational Reform Activities
- Provision of Services to Native American Children Aged Birth through Five Residing on Reservations
- Guidelines for Implementing Community-Based Educational Programs for Students with Disabilities
- Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting From Federal Financial Assistance; and Assistance to States for Education of Handicapped Children
Is There a Policy Impact?
We recommend taking a look at the full list of the guidelines that have been removed [PDF].
But you kind of get the picture from the highlights above. The point of each of these guidelines was not to create obligation. That obligation already exists under the terms of IDEA. The goal of each of these guidelines was to create greater clarity, the kind that would not just help schools and districts meet their obligations, but would also help students and families defend their right to an education that upholds these obligations.
In defense of the rescinded guidelines, Department of Education Secretary Liz Hill explained:
There are no policy implications to these rescissions. If you take a look at the attached list, you will see that the Department is clearing out guidance that is no longer in force or effect because the guidance is superseded by current law/guidance or out of date. Students with disabilities and their advocates will see no impact on services provided.
The technical term for this statement is “bald-faced lie.” There are no guidelines that supersede the implementation of “Community-based Educational Programs for Students with Disabilities” nor are there alternate guidelines that compensate for the removal of “Guidelines for Procedural Safeguards and Due Process Procedures for Parents and Children with Disabilities.”
Representative Bobby Scott, a Virginia Congressman and the ranking Democrat on the House Committee on Education and the Workforce released a press statement in the wake of the rollback, calling it “another harmful regulatory reform” by the DeVos-led Department. Scott explained:
Much of the guidance around IDEA focused on critical clarifications of the regulations required to meet the needs of students with disabilities and provide them a free, appropriate public education in the least restrictive environment.
It’s not at all clear that any of these guidelines had placed undue regulatory burden on states, districts, or schools. Nor is it at all clear that students, families, educators, or schools had difficulty parsing the information contained in the IDEA as a consequence of these unnecessarily extensive guidelines.
Because this was all done behind closed doors, advocacy groups are still trying to gain a full understanding of why there was even a need for this move, let alone what its impact will ultimately be.
We are, however, willing to venture a guess: from her dumpster fire of a confirmation hearing to present day, Betsy DeVos has shown unmistakable contempt for federal oversight on any level. She made it clear in her comments then, and she reiterates in her actions now, that she philosophically opposes any such oversight, even where the express purpose (and demonstrated effect) of this oversight is to protect disabled students against discrimination as well as to provide them clear access to equal opportunity.
In short, the impact isn’t on policy but on our ability to understand it, enforce it, to protect against violations of it, to ensure consistency in its implementation, and to seek recourse against those that would undermine its conditions. Most troubling of all is the removal of language offering guidance on where federal funding should be directed under IDEA’s terms. This makes it eminently more possible that DeVos gets her wish: federal funding through voucher programs for private, religious, and charter schools, earmarked for students with disabilities but given to schools with no material obligation to the protections invoked under IDEA.
This is not just a philosophical commitment to states’ rights, however. It is an attack on the federal government’s ability to protect individuals against states, districts, and schools that would abuse such freedom and a subversion of information that students and families have used to defend their rights. It’s also consistent with the patterns quickly established by a Department bent on systematically removing the resources designed to advance civil rights investigations and cases in the educational space.
Whatever its real implications, it is also another jewel in this Secretary’s growing legacy. Some day, when this chapter is behind us, DeVos will ultimately be remembered not for what she has done, but what she has undone.