DeVos confirmed as U.S. Secretary of Education: Here’s what she can, can’t do

Despite surprisingly robust opposition, Betsy DeVos became U.S. secretary of education Tuesday, thanks to a tie-breaking vote from Vice President Mike Pence.

The opposition was, in part, surprising because the secretary of education doesn’t wield all that much power. In broad terms, education is largely a local issue. States and school districts provide most of the money and make most of the rules.

That, however, doesn’t mean the federal government is powerless. The Obama administration used financial incentives and the bully pulpit to endorse school turnaround models, ramp up teacher evaluation, and advance civil rights issues.

So what can Betsy DeVos actually do in her cabinet post? And how might those actions trickle down to local schools?

Or, to put it another way, after all of that impassioned debate, what happens next?

We surveyed a handful of experts from around the country to produce this primer on what the secretary of Education can do; what she can’t do; and what she may do.

Let’s start here …

What can’t Betsy DeVos do as secretary of education?

The simple answer is “anything involving money,” said Nora Gordon, associate professor at Georgetown University McCourt School of Public Policy and research associate of the National Bureau of Education Research.

If DeVos, for instance, wants to appropriate new funds to a school-choice initiative, that would require congressional approval. If she wants to take money out of a current funding stream and move it somewhere else, that too would have to be part of the federal budget. Again, Congress holds the purse strings.

That’s not to say the secretary of education doesn’t play a role. Every year, the department drafts a line-item budget, said Anne Hyslop, who used to work as a policy adviser for the U.S. Department of Education during the Obama years.

Most of the items in that budget are fairly stable, but the department can request more — or less — money in a certain area based on its own preferences. As an example, Hyslop noted, the Obama administration requested more money for the department’s civil rights enforcement wing.

Often, those Obama-era requests were unheeded by Capitol Hill Republicans. It’s possible, said Hyslop, that DeVos will find a warmer reception since the GOP controls both the House and the Senate.

“Maybe there will be closer alignment between what the department requests and what ultimately gets allocated and funded,” she said.

Then again, if DeVos wants to significantly increase the department’s budget, she may find resistance from within her own administration.

“In Trump’s inauguration speech, he basically said schools are awash in cash, and they’re not getting any better,” said Ashley Jochim, a research analyst at the University of Washington’s Center on Reinventing Public Education. “I can’t imagine there’s a big emphasis on increasing or offering more dollars to federal education programs.”

What can she do as secretary of education?

The primary functions of the U.S. Department of Education revolve around enforcement and rulemaking.

The department’s “bread and butter,” said Gordon, involve “making rules, issuing guidance, monitoring, and enforcing compliance with federal programs.”

That may sound boring, but guidelines and regulations have real-world consequences.

Let’s take an example.

Right now states are waiting for the Trump administration to issue regulations and guidance around the new federal education law, the Every Student Succeeds Act. Those regulations will determine how the federal government enforces the law, which could impact everything from school report cards to accountability standards.

The Department of Education also serves as a “backstop,” Hyslop said, to ensure local school districts are meeting students’ basic needs. That includes ferreting out civil rights violations and shielding students with disabilities from unfair treatment.

A given secretary can put more or less emphasis on these types of enforcement mechanisms.

What are the U.S. Department of Education’s main levers of power?

The U.S. Department of Education makes a bunch of rules, but how does it enforce them?

Quite simply, with the power of the purse.

The federal government provides billions annually to the nation’s schools, much of it through programs for special education and low-income students. Those billions make up a small slice of the total spending on schools, but they still matter.

If a school district such as Philadelphia isn’t abiding by regulations handed down from Washington, the U.S. Department of Education can put it on “high risk,” said Hyslop. That might mean regular checkups from federal officials or follow-up audits to check for compliance.

But what if a school district keeps breaking the rules?

The department can withhold federal funds. but such cases are rare.

“Withholding funds is used in really the most egregious cases,” said Hyslop.

And even when money is withheld, it’s usually funds earmarked for administrative costs. The federal government is understandably wary about pulling funds that go to the classroom.

Will DeVos have less power than her predecessor?

In a word, yes.

The Obama administration’s Department of Education found itself in a uniquely powerful position.

Federal stimulus money — passed at the dawn of the Obama presidency — gave the department a carrot to dangle. Through Race to the Top and other programs, states often had to adopt policies the federal government favored in order to earn access to new streams of money. The Trump years are unlikely to produce a similar flood of federal cash.

For much of the Obama presidency, the federal government was also able to capitalize on congressional inaction.

The Bush-era No Child Left Behind law was due to be reauthorized in 2007, but it took until 2015 for Congress to pass a new federal education measure. No Child Left Behind contained certain accountability targets that were impossible for states to meet.

Rather than shut off the flow of federal money — a political and practical nonstarter — the U.S. Department of Education developed a waiver system so that states didn’t have to meet the standards laid out in No Child Left Behind.

“The Obama administration, in that vacuum, said we need a way to be able to give out the money … let’s give out waivers,” said Gordon. “But while we’re at it, giving out waivers, this gives us leverage in saying, ‘What are the terms under which we’ll grant the waiver?'”

Now that Congress has passed Every Student Succeeds Act, that leverage no longer exists. What’s more, Congress wrote provisions in ESSA that prohibit a similar, waiver-based system from re-emerging.

On a more general note, ESSA returns more power to the states.

“The secretary of Education is expressly prohibited from requiring states adopt or rescind any standards or assessments” under ESSA, said Jochim.

In other words, if you’re worried about what will happen to Philadelphia schools, you should have a closer eye on Pennsylvania’s Department of Education than the federal pone.

What about the bully pulpit?

One of the secretary of education’s most influential roles is as an advocate.

DeVos can convene meetings, make speeches, and endorse ideas that make their way into the mainstream. All of that matters, even if it isn’t circumscribed in the laws of the land.

The secretary can also collaborate with other departments to make rules that impact K-12 education.

For instance, the Trump administration could tweak the tax code in a way that steers more money toward school-choice programs. Now that’s not something directly under the secretary of education’s purview, but it’s the type of conversation in which she’d almost certainly participate.

Jochim mentioned the possibility of raising limits on Coverdell accounts or encouraging corporations to donate to organizations that run school-choice programs.

“That’s a marginal change on something that already exists, not a revolutionary one,” said Jochim. And it falls well short of the massive school-voucher programs Trump trumpeted on the campaign trail.

But it’s a way of pushing policies and preferences that align with the administration’s priorities.