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Conservatives Hammer on Hot-Button K-12 Education Issues at Federalist Society Event

By Mark Walsh — September 21, 2022 | Corrected: September 22, 2022 6 min read
Secretary of Education Betsy DeVos speaks at the Phoenix International Academy in Phoenix on Oct. 15, 2020.
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Corrected: An earlier version of this article incorrectly stated the presidential administration in which Chester E. Finn Jr. served as an Education Department official.

A leading right-wing legal society this week debated education policy issues that are red meat to conservatives—critical race theory in K-12 schools, gender identity, the Biden administration’s proposed Title IX regulations, and whether the federal Department of Education should be abolished.

The vibe at the daylong Federalist Society Education Law and Policy Conference Sept. 20 was not the same as how those issues are often treated at, say, a Donald Trump campaign rally or an angry school board meeting. It was, instead, a polite and civil discourse that included participation from at least a few progressive counter-voices. But the conference underscored the education issues that continue to motivate conservatives—from school board races to governors’ and congressional elections.

“Since leaving this swamp town less than two short years ago, it’s jaw dropping what has come to full bloom since,” Betsy DeVos, who was U.S. secretary of education under President Trump, said in a keynote address.

She cited “woke curriculum infused with critical race theory, radical gender ideology, and the intentional disruption of women’s sports, historic, horrifically plummeting student achievement thanks to unnecessary, union-driven school closures, [and] teachers who feel so disempowered they are leaving the profession in droves.”

Here is how DeVos and other prominent conservative advocates at the conference, which was co-sponsored by the Defense of Freedom Institute, addressed some of those issues:

Critical race theory and gender identity

A session on the highly controversial framework for examining systemic racism was dominated by the by-now well-known criticisms from the right. Some critics contend that although critical race theory may not be formally taught in K-12 schools, its concepts sometime subtly permeate such areas as teacher training, social-emotional learning, and even math textbooks. (In Florida, for example, which has a law restricting how race and racism are taught in schools, officials cited four examples of material they deemed objectionable in textbooks rejected under the state’s textbook adoption process.)

“People think we’re crazy when we say they are teaching CRT in 2nd grade math problems,” said Kimberly Hermann, the general counsel of the Southeastern Legal Foundation, which has filed several lawsuits challenging alleged school district uses of critical race theory. “It’s in there, but you have to look for it.”

This was on a panel preaching to the choir in the sense that the audience of some 100 advocates seemed to be in general agreement on CRT in schools, and where there was no progressive voice to offer a dissent.

Earlier, at a luncheon keynote, former Trump administration Attorney General William Barr said progressives had moved on from “expunging religion” from the public schools—he at one point mentioned school prayer cases of the early 1960s—to advocating “alternative belief systems that will support their new secular creed.”

“So what we’re seeing today is the affirmative indoctrination of children with ideologies and -isms that are substitutes for religion,” said Barr, who cited critical race theory and “transgenderism.”

“These are the ideologies that are now getting injected into the schools,” Barr said. “But where does the state get off compelling its citizens to submit to this kind of ideological indoctrination?”

At least one advocate said CRT may be fading as an issue in schools.

“I think the real frontier will be more on the gender identity [issue] than the critical race theory [issue] over the next year,” said Max Eden, a research fellow at the conservative American Enterprise Institute. On gender-identity issues in education, he said, “there’s a coming showdown between red-state America and the Biden administration.”

Title IX regulations

That idea spilled over into the next panel, a discussion of the Biden administration’s pending regulations that would provide formal guidance on key issues under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded educational institutions.

Conservatives disagree with the proposed rules over their rollback of the Trump-era regulations that provided for stricter due process in campus sexual assault investigations. And they object to the Biden administration’s view that Title IX protects transgender students.

Roger Severino, a vice president of the Heritage Foundation, said that on transgender student rights, the proposed Biden Title IX rules mistakenly rely on the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga. That decision held that prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act of 1964 covers sexual orientation and transgender status.

Severino noted that Justice Neil M. Gorsuch, in the majority opinion in Bostock, “went out of his way to disclaim that this applied to Title IX.” ( Severino added that Bostock was “a terrible decision” that “needs to be undone.”)

Asked about the problem of bullying in schools and the mistreatment of LGBTQ students, Severino said, “Should there be a federal response to bullying? Generally, no. … There are overweight kids in school. Do we need the federal government saying we need a new protective class of body size? No. This should be handled at the local level.”

Role of the federal government in education

The idea of abolishing the U.S. Department of Education has been around as long as the agency was carved out of what once was the Department of Health, Education, and Welfare in 1979 under President Jimmy Carter. It has gotten some new traction in conservative circles recently, including with DeVos in July getting wide attention for calling for the department’s abolition.

In her keynote Tuesday, DeVos said the “corporate media glommed on” to that speech, which meant journalists had not been paying close attention to Trump administration proposals to return much federal education aid in the form of large block grants to the states.

“If that means the department itself isn’t needed, well, so be it,” DeVos said.

Earlier in the day, at a panel devoted to the federal role in education, Neal McCluskey, the director of the Center for Educational Freedom at the libertarian Cato Institute, said, “I don’t want a federal department of education. I don’t think it is constitutional at all.”

Paul J. Ray, an economic policy analyst at the Heritage Foundation, said the Education Department frequently exceeds its authority by issuing “dear colleague” letters interpreting federal laws and that state and local officials treat such correspondence as having the force of law.

(Such letters are not the same as formal rules and guidance, though the department often casts them as restating legal obligations under particular statutes or regulations.)

But one of the progressive voices on the panel, Bethany Little of the law and policy firm EducationCounsel and a former White House education adviser to President Bill Clinton, said the nation has a long history of bipartisan support for federal legislation that promotes education for national defense and economic competitiveness.

“And then there is the … equal protection and equal opportunity responsibility,” she said. “These are the things the federal government is well suited for.”

Chester E. Finn Jr., a former Education Department official under President Ronald Reagan’s administration and a longtime Washington policy hand, said he agreed the federal education department’s role had ballooned and resulted in overreach. But he expressed doubts that efforts to abolish it would come to fruition.

“I don’t think that’s likely to happen under any scenario I can imagine,” said Finn, who is a distinguished senior fellow and president emeritus of the Thomas B. Fordham Institute. “I think the department is here to stay, and it’s a moot question.”

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