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Could Betsy DeVos Reject a State’s ESSA Plan for Not Embracing Choice? No.

By Alyson Klein — March 30, 2017 3 min read
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U.S. Secretary of Education Betsy DeVos told an audience at the Brookings Institution Wednesday that she wouldn’t necessarily approve every state’s plan for the Every Student Succeeds Act right off the bat. And at the same event, she continued to push her favorite policy: school choice. (More from Andrew here.)

DeVos didn’t say specifically that states would have to embrace choice in their plans in order to pass muster with the department. But the juxtaposition still had some folks nervous, including Sen. Patty Murray, D-Wash., who told Politico that she hopes DeVos “clarifies her comments and makes it clear that she does not plan to threaten states or hold their proposals hostage unless they conform to her privatization agenda.” UPDATE: A department official did, indeed, clarify DeVos’ remarks to US News and World Report. DeVos wants to “encourage” states to consider choice in developing plans for the law, the official said.

Could DeVos legally reject a state’s plan because it didn’t include choice, even if she wanted to?

Short answer: That would be a violation of ESSA, some experts say.

Longer answer: Both Democrats and Republicans who worked on ESSA say doing that would violate the long, long list of prohibitions on the Education Department’s authority in the law, one of which says the secretary can’t tell states what kinds of interventions they can or can’t use with their lowest-performing schools.

To be sure, there are definitely parts of ESSA that choice lovin’ states and districts can get excited about. The law allows states to set aside Title I money for course choice, free tutoring, and public school choice. It permits states and districts to offer public school choice to students in struggling schools, or turn low-performing schools into charters or magnets. And it gives 50 districts the chance to try out a weighted student funding pilot. The pilot could smooth the way for choice programs in districts that are interested in creating them, but doesn’t have to be used for choice. (More on how DeVos can use ESSA to push choice here.)

Importantly, though, all those things are totally and completely optional.

DeVos can use her megaphone as education secretary to draw attention to the parts of ESSA that states and districts that are gung-ho on choice can use to their advantage. But she can’t reject a state’s application if they say thanks-but-no-thanks to setting aside some Title I funds for course choice.

“She can cajole, plead, request, etc. but she cannot require,” said a Senate GOP aide who worked on ESSA.

UPDATE: A Democratic aide was less certain. “We’ve been examining the law for months in anticipation of a successful [effort to scrap the Obama administration’s accountability rules],” the aide said. “We have been examining this issue and believe the department may have sufficient wiggle room to push a choice agenda through plan approval, including private school choice.”

Another expert, Anne Hyslop, a former Obama administration official who worked on ESSA and is now at Chiefs for Change, tweeted that she has difficulty a way for the department to reject a state’s plan based on a lack of choice.

Hyslop also pointed out that the word “choice” doesn’t even appear in the ESSA application template the Trump administration released this month:

Education Secretary Betsy DeVos talks with Russ Whitehurst, senior fellow in the Center on Children and Families in the Economic Studies program at the Brookings Institution, on March 29 in Washington.-- Maria Danilova/AP

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