by Marion M. Walsh, Esq.

On Tuesday, February 7, 2017,  the United States Senate, by a vote of 51-50, appointed Betsy DeVos as the United States Secretary of Education.  She will serve as a member of President Trump’s cabinet  and will lead the United States Department of Education,  which sets policy, produces guidance memos and oversees federal funding of educational programs.

During her confirmation hearings, Ms. DeVos alarmed both Senators and the public with her lack of knowledge about the Individuals with Disabilities Education Act (IDEA) and her ignorance of the federal legal mandates, as she said, among other concerning issues,  as to the enforcement of the IDEA,  “I think that is an issue that’s best left to the states .” She also made  shocking statements about guns in school to defend against grizzly bears.   In fact, the IDEA creates affirmative obligations for every public school district in the United States, including charter schools, to identify, evaluate and serve students with disabilities and provide a Free  Appropriate Public Education (FAPE). Despite strong public resistance, the Senate confirmed her on February 7, 2017,  with Vice President Michael Pence, casting the historic deciding vote. In some interviews, as reported,  Ms. DeVos has indicated that she supports allowing IDEA funding for private school vouchers for  families of students with disabilities.  This raises concerns, as the voucher programs for students with disabilities that currently exist in some states, require families to give up their due process rights in order to access the voucher funds.
How Will the Confirmation of Ms. DeVos Affect Your Child?

The appointment of Ms. DeVos does create significant concern for our children’s future, but her appointment does not immediately affect existing laws or your child’s right to a FAPE.

Strong Federal Statutes and Regulations Protect Students

For the immediate present, the confirmation of Ms. DeVos will not nullify the federal mandates of the IDEA or federal civil rights laws, such as Section 504 of the Rehabilitation Act or other federal  laws such as the Americans with Disabilities Act,   Title IX of the Education Amendments of 1972 or  Title VI of the Civil Rights Act of 1964.   For the short term, her appointment will not affect your child and his or her rights to appropriate services and an education and certainly will not affect your child’s IEP meeting.  Ms. DeVos will not legislate.  She will serve as an influential policy director, but the IDEA has been in effect since 1975 (initially as the Education for all Handicapped Children’s Act) and only Congress can amend or repeal it.   The Secretary of Education lacks any power to change or veto laws.

By way of background, Congress enacted the IDEA’s predecessor and Section 504 over 40 years ago.  The IDEA requires every state to adopt parallel state laws and regulations to enforce them.   State laws and regulations can be stricter than federal laws and contain more mandates for students but may not dilute protections.  Indeed, Congress enacted the IDEA because  students with disabilities faced exclusion from school in the past.   IDEA also requires school districts to develop procedures to ensure they are locating and identifying students whom they suspect have disabilities, including those who are passing grade to grade.

In short, the laws protect every student and parent in the United States, as any student can develop disabilities, such as emotional disabilities, during the course of a school career. Court precedents from at least the last fifty years have gradually expanded the rights of students with disabilities and parents, thanks to the tireless work of countless parents and advocates.

Courts Ultimately Interpret and Enforce the IDEA and Section 504.

The United States Department of Education sets policies and issue guidance memos with respect to IDEA and Section 504 and, in the years to come, it is possible and indeed likely that new guidance  under DeVos may dilute certain protections.  Keep in mind that the Guidance of the U.S. Department of Education is not binding on courts and administrative judges but may be persuasive.    The Office for Civil Rights  does fall under the umbrella of the U.S. Department of Education, so we may see relaxed enforcement of student’s civil rights. OCR’s mission currently is to ensure equal access to education and to vigorously enforce  civil rights in our nation’s schools. Federal judges and administrative judges ultimately hold the power to interpret and enforce the IDEA and Section 504. The judiciary remains independent of the U.S. Department of Education.

Increased Emphasis and Support for  Charter Schools

Ms. DeVos has indicated a policy inclination to favor charter schools which are public schools that receive state funding.   This trend has been in effect for some time, as the number of charter schools in the United States has increased.  Charter schools must serve and provide appropriate services for students with disabilities and Recent Guidance from the U.S. Department of Education  from December 2016 has questioned whether charter schools are appropriately serving students with disabilities and providing access to students with more significant  disabilities.

Advocacy Remains Paramount

Thus, as troubling as the ignorance of Ms. DeVos appeared to many, her power is somewhat limited.  Individuals can make a difference in the education that their children receive and what direction their school districts, states and the federal government take.  Again, Ms. DeVos will not affect your child’s services or IEP meeting right now.

Nevertheless, over the next few years, we may see changes in the ways  civil rights laws are enforced and decreased funding from the federal government, which even currently is minimal, as the IDEA is not fully funded. Thus, increased advocacy and vigilance is even more important.  Here are three steps to take:

1. Stay involved in federal, state and local advocacy. Stay informed on educational developments and advocate with your federal, state and local representatives.  It is likely that Ms. DeVos’s appointment may affect interpretations of the Every Student Succeeds Act (the successor to the No Child Left Behind Act), which requires state and local implementation, so stay informed.  Also state law and local policy can override any federal rule to allow teachers to carry guns in school.
2. Advocate for your child.  Every parent has the right to advocate for your child and the IDEA contains important procedural protections, including the right to file for due process if you disagree with your child’s placement or services.  The change in political landscape makes strong advocacy more important.  The law has evolved and developed because parents and advocates stepped up to challenge exclusionary policies that excluded children from school.  An educational advocate or attorney can help.
3. Run for your local school board. Even though the U.S. Department of Education holds some power and influence, it does not create local educational policy.  Local school boards run local districts, set a budget and can set strong policies.  Most funding for serving students with disabilities comes from local education budgets, not the federal government.  Also, get involved in your local PTAs to ensure your own school district is protecting the rights of vulnerable children.

Learn more about our special education advocacy or special needs planning services.

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