Newly sworn-in Secretary of Education Betsy DeVos tried, and eventually succeeded, to visit a Washington, D.C., public school Friday morning. As warned by her opponents after she was confirmed by a razor-thin margin on Tuesday, she was met by protesters who intended to make good on the threat to block her at every turn. In this case, literally: according to videos like this, they physically tried to prevent her from entering the building.
The opposition to DeVos, as I've suggested over the last several weeks, has been over the top and, frankly, unfair. It also hasn't done much to improve the sick state of the national political dialogue.
That said, there may be no one more sympathetic to objections to federal education meddling than me. Indeed, if the school refused to let DeVos visit because it did not want the disruption or political theater, I'd have been all for it.
But there is a way more constructive way to solve the problem of dangerous or unwanted federal intervention than blocking schoolhouse doors: work to end the federal Department of Education.
This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.
The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.
The good news is that a window has opened for the protestors and anyone else worried about federal power — or maybe just interested in seeing the Constitution obeyed — to end the education department.
Rep. Thomas Massie, R-Ky., has just introduced legislation to end the Education Department. The text of the bill is simple: "The Department of Education shall terminate on December 31, 2018." That's it. I'd like to see what would happen to all the programs the department runs — they're the meat of the problem — but the simple bill is a major step in the right direction.
I hope DeVos' opponents would agree that ending most federal education intervention would be a good thing. But if not, don't worry: I won't try to visit your school.
The drive to impose uniform curriculum standards on the nation's schools has been one of stealth, and at times, seemingly intentional deception. Most egregious has been the mantra of Common Core proponents that the effort has been "state-led and voluntary," despite Washington coercing state adoption through the Race to the Top program and No Child Left Behind waivers; standards creators encouraging just such federal "incentives"; and Washington selecting and funding the two groups creating the tests to go with the standards. And now, more than a week after the U.S. Department of Education announced the creation of a "technical review" panel to assess the assessments, it seems increasingly certain that the panel's work will be done behind closed doors.
At least one report asserts that the meetings will, indeed, be closed to the public. Education Week's initial reporton the review says that the panel's "feedback" will eventually be made public in "a yet-to-be-determined form," but says nothing about the meetings themselves. Cato Center for Educational Freedom efforts to confirm the meeting status with the U.S. Department of Education have come up empty, with calls over two days either resulting in no information or simply going unanswered. At best, then, the meetings will be open to the public but ED has a terrible communications system. At worst the panel's work will be completely under wraps save for some kind of final -- and perhaps heavily filtered -- report.
Either scenario is unacceptable. These tests are being funded by taxpayers, and the goal is ultimately to use them to assess the math and reading mastery of the nation's children. Funders and families deserve to see what this review panel is doing, and shouldn't have to pull telecommunications teeth to find out if and how they can do that. In addition, Common Core supporters have taken to painting opponents as paranoid, while at the same time denying or downplaying the federal government's major role in pushing the Common Core. It would not be surprising were they to use the same tactics should Common Core opponents raise questions about the degree to which the Feds are influencing what is on the tests. The panel may well leave test content alone, but given the track record so far it is rational to fear the worst, especially when it seems the review panel is purposely being kept out of real sunlight.
Americans deserve to see all that the Feds are doing with this supposedly non-federal effort.
Senator Marco Rubio has just written to Secretary of Education Arne Duncan, requesting that he not break the law. At issue is the administration's plan to offer states waivers from the No Child Left Behind act if they agree to adopt national standards or pursue other educational goals of the administration. Rubio states that these conditional waivers violate the U.S. Constitution, the Department of Education Organization Act, and the No Child Left Behind Act. He's right.
As my Cato colleagues and I have noted many times, the Constitution mentions neither the word "school" nor the word "education," and so, under the 10th Amendment, reserves power over those concerns to the states and the people.
The Act creating the Department of Education is equally clear:
No provision of a program administered by the Secretary or by any other officer of the Department shall be construed to authorize the Secretary or any such officer to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution, school, or school system... .[Section 3403(b)]
Nor is the NCLB particularly ambiguous:
‘Nothing in this title shall be construed to authorize an officer or employee of the Federal Government to mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic achievement standards and assessments, curriculum, or program of instruction. [Section 1905]
The Secretary's conditional waivers from NCLB mandates, in return for dancing as he desires on national standards, seem to violate all of the above. I wonder if any education reporter will have the temerity to ask Arne Duncan on what grounds he believes he is entitled to ignore these laws? Senator Rubio's letter certainly gives them a golden opportunity to do so.
Next month, the Obama Administration will begin granting waivers to states that are not on track to meet proficiency requirements in the No Child Left Behind Act. Education Secretary Arne Duncan will be granting these waivers selectively, based mostly on states' willingness to abide by new executive branch mandates not included in NCLB, likely including adopting national curriculum standards.
Duncan has the authority under NCLB to grant waivers, but not to compel states to jump through administration hoops in order to earn them, as Neal McCluskey has documented clearly.
As Neal notes in today's Cato Daily Podcast, essentially imposing national standards – as well as other potential waiver demands – represents a large-scale assertion of federal executive power over local education:
We've broken any semblance of a Constitutional balance of power between the executive and the legislative branch. Now the President is just going to dictate to every school what they're going to teach. And that is a giant threat to freedom and to the American education system.
A broader recognition that the Constitution grants neither Congress nor the President any role in education would go a long way toward fixing these problems. NCLB may be, to quote Arne Duncan, "a slow-motion train wreck," but using that law to transfer power away from parents, states and Congress is easily a solution worse than the problem.
I received a response to my recent blog post on the Department of Education serving a warrant and dragging Kenneth Wright of Stockton, California from his home at six in the morning (incident added to the Raidmap, and here’s an updated link to the story). Here is the word from Department of Education Press Secretary Justin Hamilton:
“Yesterday, the Depart of Education’s office of inspector general executed a search warrant at Stockton California residence with the presence of local law enforcement authorities.
While it was reported in local media that the search was related to a defaulted student loan, that is incorrect. This is related to a criminal investigation. The Inspector General’s Office does not execute search warrants for late loan payments.
Because this is an ongoing criminal investigation, we can’t comment on the specifics of the case. We can say that the OIG’s office conducts about 30-35 search warrants a year on issues such as bribery, fraud, and embezzlement of federal student aid funds.
All further questions on this issue should be directed to the Department of Education’s Inspector General’s Office.”
This does not change my analysis one bit. The Department of Education doesn’t need a squad of "operators" busting down doors in white collar crime cases.
Search warrants issued pursuant to an investigation of bribery, fraud or embezzlement shouldn’t require door breaching at dawn unless there’s some exigent circumstances justification. Did the agents think that Kenneth Wright was going to resist the warrant service with deadly weapons, or destroy evidence? If so, say so. At least it would provide some evidence of surveillance prior to the raid or actual investigation. Investigation or surveillance might have revealed that the target of the warrant, Wright’s estranged wife, would not be home when agents came knocking.
Some gunbloggers wondered a while back about a federal website soliciting contracts to provide short-barreled shotguns for the Department of Education (H/T Uncle and Tam). Now we know what they’re intended for, and it’s incompatible with a free society.
Department of Education officers employed a SWAT team because of unpaid student loans. I am not making this up:
Kenneth Wright does not have a criminal record and he had no reason to believe a S.W.A.T team would be breaking down his door at 6 a.m. on Tuesday…
As it turned out, the person law enforcement was looking for was not there - Wright's estranged wife.
"They put me in handcuffs in that hot patrol car for six hours, traumatizing my kids," Wright said.
Wright said he later went to the mayor and Stockton Police Department, but the City of Stockton had nothing to do with Wright's search warrant.
The U.S. Department of Education issued the search and called in the S.W.A.T for his wife's defaulted student loans.
This, along with the Jose Guerena case, demonstrates how the militarization of police terminology and tactics is incompatible with a free society. Police officers aren’t “operators” like Green Berets or Navy SEALs.
This is just one more reason to abolish the Department of Education and oppose police militarization and federal overcriminalization.
People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation. As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:
If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.
As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:
Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; "kangaroo courts" are common, and OCR 's letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant "may be traumatic or intimidating." (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.
Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan's case or that of the Duke lacrosse team. Justice (what lawyers call "due process") demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence. It is no more just for an innocent person to be smeared and forever tarnished -- if not convicted and imprisoned -- than it is to let a guilty man go free. Indeed, as Blackstone famously said, "Better that ten guilty persons escape than that one innocent suffer."
What's more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it's not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:
California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”
This disconnect between basic principles of free speech and due process creates what Lukianoff calls "a perfect storm for rights violations":
By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.
FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff's indictment of the new policy.
The Department of Education needs to rescind/clarify this mess. Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.