Since taking office last February, the U.S. Secretary of Education Betsy DeVos has eliminated dozens of education directives to school officials. Now the Education Department is reconsidering a rule intended to hold states to a higher standard when determining if districts have overenrolled minority students in special education. It has also signaled an intention to pull back on considering “systemic” causes of discrimination during civil rights investigations at schools.
The unprecedented cleansing and revisions of Department of Education guidance to states, school districts, and private schools is passed off largely as a response to President Donald Trump’s simplistic Jan. 30 executive order that agencies remove two regulatory documents for every one issued. Even if, as has been reported, large swaths of the documents the department has eliminated so far have been out-of-date or superfluous, other guidance revisions have grave implications for marginalized students. The department’s headline-making withdrawal of Obama-era policy guidance permitting transgender students to use bathrooms and locker rooms that match their gender identities is just one such example.
This is not a small thing. Close scrutiny is required to assure that, cloaked amid the “housecleaning” now and in the future, no excised documents delete formerly protected educational rights; and that updated guidance, even if it varies in detail, maintains both educational quality and equality.
Guidance is a necessary executive statement that tells state, local, and private school officials what specific actions will or won’t be countenanced by the Education Department, usually through the provision of federal funding. Though reliant on underlying regulations for enforcement and usually invisible to the general public, guidance is what makes the wheels of government turn. By addressing new or unresolved issues, guidance gives teachers, principals, paraprofessionals, and other support personnel legal protection to employ the most up-to-date policies and practices when working with students. Similarly, spurious pedagogical techniques are discouraged.
Guidance is a necessary executive statement that tells state, local, and private school officials what specific actions will or won’t be countenanced by the Education Department."
As the Department of Education now weighs changes to school discipline guidance favored by civil rights groups and scrutinizes a rule intended to address widespread disparities for minority students in special education, a strong cautionary note must be sounded.
There might be something healthy when old guidance is tweaked or replaced with new policies based on new disability-centered or civil rights research findings and best practices. But simply rescinding guidance leaves educators without necessary instructions about how to comply with federal law. Without it, they are flying blind, trying to apply inevitably vague regulatory language to assure compliance. Guidance fills in this gap with specific instruction in how to best meet regulatory requirements in specific factual circumstances.
Public education advocates are right to be concerned that cleaning house will become a pretext for promoting “school choice” models that heighten segregation and make public schools vulnerable to privatization.
Secretary DeVos’ actions are consistent with the Trump administration’s deregulatory playbook. The justified worry over DeVos’ recent actions on far-reaching guidance is that she plans to cut back on special education and civil rights enforcement. Her department has already rescinded guidance on protections for transgender students and standards of proof for campus sexual assault, and halted protections against student loan scams by for-profit colleges.
Further enforcement rollbacks could leave thousands, maybe hundreds of thousands, of marginalized students without needed educational services. Though the ax would fall disproportionately on communities of color, President Trump’s overwhelmingly white electoral base would also feel the effects. Less enforcement means kids and their families will be at risk of shoddier services. Even when enforcement does take place, lack of necessary guidance means arbitrary outcomes, with education department staff picking arbitrarily on one district or another, selectively prosecuting those who find themselves in the government’s cross hairs.
It’s not alarmist to say that the department’s zeal for “focusing on people, not paperwork” is troubling. It’s troubling for children and their parents; troubling for teachers, principals, and district administrators; troubling for others directly affected. And troubling for the nation which depends on inclusive policies toward disability and other affected communities for our collective health and prosperity.