The Department Of Education Is Not A National School Board

Last week, Joe Biden joined the bandwagon of Democrats (started by Elizabeth Warren this year) promising to name a public-school teacher to be Secretary of Education if he wins the presidency. It’s an easy commitment to make in front of a teachers’ union audience, and it wouldn’t be all that odd to do it—several past presidents of both parties have named former public-school teachers to the job.

But the promise is another example of a thoroughly bipartisan misconception about the work of the federal education department. Even if they haven’t been former teachers, nearly every education secretary since the Department of Education was created in the Carter years has been someone with expertise or experience in K-12 education—whether as an educator, administrator, reformer, or policymaker. But the Department of Education actually has a lot more say over higher education than primary or secondary schooling, and its work has suffered from the lack of focus on higher ed over the years. If we must have a Department of Education, it could at least be run by someone who knows something about higher education.

The American system of primary and secondary schools is gloriously decentralized. There are about 130,000 K-12 schools in America, about three-quarters of which are public schools. The latter are governed by about 13,000 different school districts across the 50 states. These districts have enormous power over curriculum and staffing decisions, and the states have most of the remaining power over education policy.

The federal role in K-12 education is strongest in circumstances where racial or other discrimination triggers legally-mandated responses. Otherwise, the federal government uses some levers of conditional funding under the Elementary and Secondary Education Act—a Great Society law that has been updated every few years since. Recent updates include the No Child Left Behind Act and the Every Student Succeeds Act. These have given the federal government more leverage over time, but its power is still greatest at the margins. Federal dollars are about 8 percent of K-12 education funding, and the Department of Education doesn’t really shape primary and secondary education policy.

We should all be glad about that. And a teacher who wants to influence education policy would be better advised to run for school board or for the state legislature than to go to Washington.

But unfortunately, the federal Department of Education does play a critical role in setting the direction of American higher education. Here too, its power comes mostly from the leverage created by federal dollars, but that leverage is immense, especially because of the student-loan system. And it has meant that the federal government has played a central role in driving the tuition inflation that plagues higher ed and in creating all manner of policy trouble besides.

Price inflation in higher education has been massively exacerbated by the basic structure of federal policy in this area, which might be best described as simultaneously subsidizing demand and restricting supply.

The subsidization of demand is done through student aid, which has been too open-ended and has risen with tuition, thereby creating upward pressure on costs. This leverage over funds has also given the Department of Education lots of informal power to drive policy through nudges and “suggestions” in a variety of areas. The Obama administration’s notorious “Dear Colleague” letters are a prominent example.

The restriction of supply, meanwhile, has been a function of accreditation, which the incumbent players in American higher education have used to restrict new entrants and new uses of technology. Accreditation is technically a private process, run by a group of NGOs, but because it is the means by which schools become eligible for students with federal loans and grants, the Department of Education has enormous power over it, essentially accrediting the accreditors.

All of this gives the Secretary of Education a lot of opportunities to improve (or to worsen) higher-ed policy—both by working with Congress to change the law and by working directly to change the department’s policies. Higher-ed policy is badly in need of reforms, getting those right could make a huge difference, and the Secretary of Education would be a key figure in making that happen. The Trump administration has taken some useful steps in this direction, but there is lots more to be done.

So a president who wanted to do something useful in education policy would be wise to appoint an education secretary who knows something about higher education, rather than just one who will say nice things about primary and secondary schools.

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Nation’s Largest Teachers’ Union Embraces ‘Fundamental Right to Abortion’

Over the weekend, the National Education Association adopted a new “business item” declaring its support for “the fundamental right to abortion under Roe v. Wade.” The NEA is the most influential teachers’ union in the United States, and with more than three million members is also the nation’s largest labor union of any kind.

Here’s more from Business Item 56:

The NEA will honor the leadership of women, non-binary, and trans people, and other survivors who have come forward to publicly name their rapists and attackers in the growing, international, #MeToo movement.

Furthermore, the NEA will include an assertion of our defense of a person’s right to control their own body, especially for women, youth, and sexually marginalized people. The NEA vigorously opposes all attacks on the right to choose and stands on the fundamental right to abortion under Roe v. Wade.

The statement goes on to assert that this new stance is necessary because “the most misogynistic forces, under Trump, want to abolish the gains of the women’s right movement.” The NEA’s change in rhetoric on abortion is a departure from several decades of couching its stance in terms of “reproductive freedom.”

In a document that aims to debunk the claims of its critics, the group once called the assertion “NEA supports abortion” a “deception,” and stated that it “does not have a pro-abortion policy.” Here’s more from that document:

[The NEA’s] stance on this issue is often misinterpreted and misunderstood. NEA’s policy statement reads: “The National Education Association supports family planning, including the right to reproductive freedom.” What this means is that NEA supports the current protections guaranteed under the Supreme Court’s Roe v. Wade decision. This decision allows women to decide for themselves if they should have children—or not have children—and protects the constitutional rights of all women, whether they are pro-choice or anti-abortion.

Though in practice such a mindset would likely lead to supporting nearly unlimited abortion rights, this weekend’s sudden change in rhetoric indicates a desire to explicitly redefine abortion on demand as a fundamental right. Even more interesting is the fact that the NEA — a teachers’ union that ostensibly has no obvious reason to care about abortion policy or advocacy — evidently feels pressure to adopt a more radical stance as the Left becomes more dogmatic on the issue.

The statement outlining Business Item 56 doesn’t even make an attempt to articulate why the NEA has a stake in the abortion debate at all. It merely takes for granted that, as an influential left-wing organization, the group must necessarily champion the entire progressive agenda. This is a growing tendency on the Left, as “intersectional” thinking takes hold — the idea that each interest group within the broader progressive movement has a responsibility to embrace and advocate the particular interests of the rest.

If the National Rifle Association were to suddenly issue a statement declaring its belief that life begins at conception, and every human being has the right to life, it would be a cause for confusion and surely for immense criticism from the group’s opponents. But on the Left, such “allyship” among progressive interests is increasingly required as a measure of devotion to the greater cause.

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Supreme Court Set to Hear School Choice Case Next Term

Before hitting the road for their summer vacations, the justices of the Supreme Court announced last week that they would hear a major school choice case in the next term.

If the court rules in favor of the families that brought this case, it could pave the way for educational freedom and opportunity for millions of children across the country.

The case, Espinoza v. Montana Department of Revenue, deals with Montana’s tax credit of up to $150 per year for donations taxpayers make to a scholarship-granting organization.

The scholarship-granting organization then provides scholarships to income-eligible children to attend a private school of their choice.

Recipients may use the funds at qualified schools, which initially included religiously affiliated private schools. Then the Montana Department of Revenue enacted a rule excluding religious schools, citing the state constitution’s “no aid” provision (known as a Blaine Amendment) that prohibits public money from going to churches.

Families with children at religious schools challenged that rule, arguing that it violates their federal constitutional right to free exercise of religion.

Religiously affiliated schools make up 69% of private schools in Montana. If this rule were to be allowed to stand, it would shut out a large percentage of schools from the scholarship program, limiting the options of families that relied on this assistance to send their children to the school of their choice.

The good news is that the Supreme Court set the stage for the Espinoza case with its 2017 ruling in Trinity Lutheran Church v. Comer.

In that decision, the high court held that the state of Missouri violated the First Amendment’s Free Exercise Clause when it barred a church-run day care center from receiving a grant to resurface its playground.

The state of Missouri argued that it was trying to avoid running afoul of the Establishment Clause, which prohibits states from recognizing an official state church. In doing so, Missouri trampled on Trinity Lutheran’s free exercise rights.

To be sure, there is some “play in the joints” between what the Establishment and Free Exercise clauses require of states.

Writing for the majority, Chief Justice John Roberts explained that by singling out the day care center for disfavored treatment and “denying a qualified religious entity a public benefit because of its religious character,” Missouri went “too far.”

Roberts wrote in a footnote that the decision was limited to “express discrimination based on religious identity with respect to playground resurfacing” and stressed that the decision “do[es] not address religious uses of funding or other forms of discrimination.”

Justice Neil Gorsuch disagreed that the ruling was limited.

In a concurring opinion, joined by Justice Clarence Thomas, Gorsuch concluded that the “general principles” of this decision “do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

Shortly after issuing this decision, the justices instructed courts in Colorado and New Mexico to square their rulings in cases dealing with a school voucher program and a textbook-lending program with the Trinity Lutheran decision.

Thus, the scope of the Trinity Lutheran ruling remains unclear, and now the high court has the opportunity in the Espinoza case to make clear that states may not require religious organizations to check their beliefs at the door before entering the secular world.

If allowing a church-run day care center to compete for state grant money does not violate the Establishment Clause, then surely there aren’t Establishment Clause concerns raised by allowing families to use scholarship money at religious schools, for which donors receive a modest tax credit.

Indeed, in Zelman v. Simmons-Harris (2002), the court noted the “consistent distinction” it has drawn between “government programs that provide aid directly to religious schools … and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.”

On several occasions, the high court has rejected Establishment Clause challenges to “neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools … of their own choosing.”

The state’s Blaine Amendment also should not provide cover for preventing families from choosing to use these scholarship funds at religious schools.

More than three dozen states have Blaine Amendments, named for Sen. James G. Blaine, R-Maine, who in the late 1800s pushed for an amendment to the U.S. Constitution prohibiting aid to “sectarian” schools.

As Thomas explained in the 2000 decision Mitchell v. Helms, “Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that sectarian was code for Catholic.”

Although Blaine failed in his bid to amend the Constitution, many states—some on condition of statehood—adopted their own Blaine Amendments.

Today, these ignoble 19th-century amendments often thwart modern-day school choice efforts as more and more states move toward systems that enable families to direct their child’s education funding to education options that work for them.

With any luck, the court will use the Espinoza case to heed Thomas’ advice that “this doctrine, born of bigotry, should be buried” and pave the way for school choice across the country.

The justices will hear oral argument in the Espinoza case during their next term, starting in October, and release a decision by the end of June 2020.

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