Betsy DeVos can uphold the original purposes of the Department of Education - N. Malkus / AEI

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Despite a remarkable campaign of opposition, Betsy DeVos is now the 11th secretary of education, confirmed by the narrowest of margins. Opponents of the new secretary expect she will reverse the recent direction of the department, and they are gearing up to obstruct her. Lost in this outcry is that by departing from the tack of her predecessors, DeVos is returning the Department of Education (ED) toward some of its neglected original purposes.

DeVos drew fire for her long record of championing state and local control in education, particularly through private school choice programs, and for her lack of experience running public schools or administering bureaucracies. The bulk of her opposition came from defenders of traditional public schools, including teachers’ unions and congressional Democrats who worry that DeVos is out to destroy public education as they know it.

Two pivotal questions frame this debate over DeVos: What defines public education? And what is the secretary’s role in supporting it? If you grant her opponents’ premise that public education and traditional public schools are synonymous, then it’s easy to cast DeVos as a threat to public education. It’s even easier if you also grant the premise that the secretary of education’s role should follow the lead of the Obama administration, which deployed the secretary and the department to extend federal influence over states’ provision of public education.

But those premises run counter to the original statutory purposes of ED, as established by the law that created it, as well as the role of the secretary, as defined by the most recent federal education law: the Every Student Succeeds Act (ESSA).

In 1979, President Jimmy Carter signed the Department of Educational Organization Act (DEOA), which created ED and established seven statutory purposes for the department. The first is “to strengthen the Federal commitment to ensuring access to equal educational opportunity for every individual.” Certainly, there are divergent views about how best to accomplish that goal, as demonstrated in DeVos’s confirmation, but throughout the process, DeVos consistently committed to ensuring equal access.

DEOA’s second purpose states that ED is “to supplement and complement the efforts of States, the local school systems and other instrumentalities of the States, the private sector, public and private educational institutions, public and private nonprofit educational research institutions, community-based organizations, parents, and students to improve the quality of education.” ED’s lawful purpose has never been to prescribe policy, but to support states’ efforts to provide education, and further, to support a diversity of state-devised efforts.

States’ primacy in providing education is even clearer in the “findings” section of DEOA, which are a series of statements explaining lawmakers’ animating logic for the law. The findings state that “the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States.” These findings do not privilege traditional public districts or “local school systems” over “other instrumentalities of the States,” such as charters and private choice programs. They not only put states in the driver’s seat of public education but explicitly expect that states might construct alternative delivery systems, putting public and private institutions on an equal footing.

DEOA includes two other findings that support the secretary’s approach to ED. One states that “parents have the primary responsibility for the education of their children, and States, localities, and private institutions have the primary responsibility for supporting that parental role.” Another states that “the American people benefit from a diversity of educational settings, including public and private schools.” Surely, the parental choice DeVos supports is well aligned with both of these sentiments.

Her opponents have been remarkably successful in framing her as an “enemy of public education.” But they have done so in poor faith, by conflating public education with its primary delivery system: traditional public schools. ED’s purpose is to promote states’ local school systems and other instrumentalities, which include states’ charter laws and private school choice programs.

DeVos faced other faulty premises in her confirmation hearing. Senator Chris Murphy posed a question about allowing guns in schools, with an implied premise that the secretary of education should decide local schools’ gun policies. DeVos answered that those policies were “best left to locales and states to decide.” Her silly retort about protecting against “grizzlies” aside, her primary response was clearly in line with ED’s statutory purpose. Senator Tim Kaine asked, “Should all schools that receive taxpayer funding be required to meet the requirements of the Individuals with Disabilities Education Act?” His question implied that choice programs let private schools shirk federal protections for students with disabilities. However, these programs do comply with the federal law because Congress established different requirements for public and private schools.

The senators’ questions assume that ED should dictate policy and exercise authority outside its lawful purposes. That extended role is in keeping with President Barack Obama’s secretaries of education, who used regulatory powers to push favored education policies on the states. But it is at odds not only with DEOA from 1979 but with ESSA passed in 2015. Congress built specific prohibitions into ESSA to put a stop to the overreaches taken by Obama’s secretaries of education, and it is only fitting that DeVos respects the will of Congress.

The new secretary has a big job to do, and it includes supporting states’ provision of education in all its forms. She is bound to diverge from the role her opponents might prefer, but her consistent promises to yield authority to the states and vigorously support their various instrumentalities for education is a return to ED’s lawful purpose, not a departure from it.


malkusNat Malkus

Research Fellow, Education Policy Studies



NOTE: Nat Malkus is a research fellow in education policy studies at the American Enterprise Institute (AEI), where he specializes in K–12 education. Specifically, he applies quantitative data to education policy. His work focuses on school finance, charter schools, school choice, and the future of standardized testing.


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