The Institute of Education Sciences turns 21 this year. After five years at its helm, Director Mark Schneider is hoping to shepherd its transition to maturity.

When he was appointed by President Trump in 2017, Schneider took over an agency designed to reveal the truth of how schooling is delivered in the United States. IES houses four research centers that measure the effects of educational interventions from preschool to university, and through the National Assessment of Educational Progress — the agency’s most recognizable research product, often referred to as the Nation’s Report Card — it delivers regular updates on the state of student achievement.

But Schneider sees a new role for federal research endeavors. Through the use of public competitions and artificial intelligence, the director wants IES to help incubate breakthrough technologies and treatments that can help student performance take a giant leap forward in the coming years. Rapid-cycle experimentation and replication, he hopes, will help reverse more than a decade of stagnation in K–12 performance.

Late in his six-year term, Schneider is candid about his status as one of the few holdovers from the previous administration still serving in government. In part, he quips, that’s because education research isn’t considered important enough for a Trump appointee to be fired. But he’s also labored to win the trust of Congress and cultivate bipartisan support for a vision of educational improvement powered by data.

Now he believes that vision could soon be realized. In December, Congress approved a substantial increase in IES’s budget to potentially fund a fifth national center that some have dubbed a “DARPA” for education research (based on the Pentagon’s ). Further legislation is needed to authorize a branch for advanced development in education sciences, but potential research strands are already being theorized.

Schneider — a political scientist who left academia for leadership and research roles at the American Institutes for Research and the American Enterprise Institute — has a commanding perspective on the federal education bureaucracy, serving as the head of the National Center for Education Statistics in the 2000s. His sometimes tart observations about Washington’s research efforts, and the future of IES, can be found on his .

In a wide-ranging conversation with ����Ӱ��’s Kevin Mahnken, Schneider spoke with surprising openness about the Department of Education (which “operates like a bank” in its grantmaking capacity), the “horrifying” reality of university master’s programs (“It’s a money machine, and so you create more of them”), and why he believes some concerns about data privacy are overblown (“If I were really worried about this, I wouldn’t wear an Apple watch.”) 

Above all, he said, the task ahead is to develop a research base that can yield transformative educational tools on the order of COVID vaccines and ChatGPT.

“The goal, using this foundation, is to look at things that pop out, that would not exist otherwise,” Schneider said. “If we can do this with vaccines, if we can use it with chatbots, then what’s our foundation?”

The conversation has been edited for length and clarity.

����Ӱ��: Tell me a little about what you’re anticipating this year in terms of legislation to establish a DARPA-type program for education.

Mark Schneider: There are two parts of the . The first is to set up the National Center for Advanced Development in Education, NCADE, and the other is for major reinvestment in . Most people focus on the first part, but the second is also really important because we spent a billion dollars building those data systems over the last 18 years. The whole thing is a great system, but it needs to be rebuilt.

What needs to be modified in those systems?

It’s old technology. I think the first round of money for them went out the door in 2006. [Gestures at iPhone sitting on the table] Can you imagine having a technology system that was built in 2006? So they need to be modernized, but the more important thing is that we now have a much more expansive vision of what they can do after almost 20 years of work. 

The example I point to is absenteeism. States have really good records on attendance because money flows based on average daily attendance, and they have to take counts. They know who are chronic absentees, but they don’t know why. It could be food insecurity, health, migration status, could be a dozen things or more. But if we use these longitudinal data systems as a backbone and then plug in information from criminal justice, health, Social Security, we would have a much better sense of what’s going on with any student in a given school. The strength of Statewide Longitudinal Data Systems [SLDS] has always been tracking students over time.

The biggest problem, of course, is that as you merge more data, the issues of privacy become more intense because it’s easier and easier to identify people when there’s more information. We’re nowhere near good enough at privacy protection, but we’re getting way better, and there are so many more ways of protecting privacy than there were 20 years ago.

Given the lengthy timetables of federal projects like the SLDS, do you ever feel like you’re painting the Golden Gate Bridge, and now that you’ve finally established these tools, it’s already time to overhaul them?

Well, we spent a $1 billion building this, and right now, we’re spending about $35 million per year on grants to states to do things with it. What percentage of $1 billion is going back into maintenance and expansions? It’s pocket change. So you always have to remember that this is a state-owned system, designed to help them do their work. And to take an example, Tennessee is surrounded by seven other states, and they end up doing their own collaborations and data exchanges.

Is the inherent federalism of that approach, especially layered over the archaic technology, difficult to manage? How did it play out during the pandemic, for instance, when real-time data was so hard to generate?

The trickiness had nothing to do with SLDS, though. It had to do with the world we woke up to in March 2020.

For me, SLDS is like an exemplar of a federal system where the states assume almost all responsibility. But again, we have more capacity compared with most states. There are states like Massachusetts that are doing an unbelievably good job, and other states are not. Our role there is providing the resources to enable states to a) experiment like Massachusetts and b) bring states that have little capacity up to speed. 

Probably the most alarming federal data coming out of the COVID era has been the release of scores from the National Assessment of Educational Progress, which showed huge drops in achievement in reading and especially math. Did those results match what you were expecting?

By the time NAEP landed, we had NWEA results and others that suggested it was going to be a debacle. We knew the scores were going to go down by a bunch. But NAEP is NAEP — it’s national, it’s rock-solid in terms of its methodologies and its sample. So it’s indisputable that this was an awful situation, right?

To connect the dots with SLDS: One of the problems with the system is that it was conceived as a data warehouse strategy. And I tried and tried, but nobody caught that this was a stupid way of phrasing its purpose. I said, “We don’t need a data warehouse. What goes into a warehouse, a forklift?” We want an Amazon model where we also have retail stores, and you can go in and find stuff. 

I understand that states are very hesitant to let random academics and researchers have access to very private data. But as we rebuild the SLDS, we need to make sure that there are use requirements as part of the deal — always, always consistent with privacy protections, but we have to use these more. It’s a little tricky because some states have a history of opening up the doors and letting in researchers, and others just don’t. In the state of Texas, it can depend on who the attorney general is. 

It can be striking come out of, for instance, Wake County, North Carolina.

It’s because they’ve opened the data to more people. And that’s part of the deal, but Wake County is not the United States. We need more. 

My days of active research are behind me, but the possibilities built into these data are incredible. I thought I was going to be able to do a deal with Utah, where there’s an organization doing early childhood interventions; all the evidence is that they’re good, but we need to see if “good” sticks. Well, SLDS is perfectly designed to figure out if interventions stick. I thought this work in Utah would allow us to identify students in their early childhood interventions, work with the state to track those students over time, and find out if those very positive pre-K results — it’s a very inexpensive intervention with great results in the early years — stick. We have the means to do it. We just need to do it.

It seems like efforts like that would be complicated by the growing political salience of data security.

It’s everywhere, and for good reason. I’m not really a privacy hawk, but all the privacy protections need to consider benefits versus costs. In too many places, we’ve concentrated on the risk without considering the benefit. But that’s only half the equation. We have to be able to say, “This risk can be mitigated, and there could be huge benefits to come out of this.” 

This is what political systems do all the time — they balance risks against rewards. But we have to do it in a much more sophisticated way.

Why are you a privacy dove? There is something a little funny about how guarded people are about government intrusions when they so freely hand over their data to Amazon or whomever.

I have an Amazon Echo in every room in my house, and I know that they’re listening! Everyone has a story where they’re talking about something, and then they go on their Amazon account and see an advertisement related to the product they were talking about. It’s really scary, but I’ve only turned off the microphone on one of my devices because of the convenience of being able to say, “Alexa, turn on my lights, play the BBC.” For me, those benefits are worth getting a bunch of stupid advertisements.

If I were really worried about this, I wouldn’t wear an Apple watch or own an Apple phone. We all should be concerned about privacy, and especially when it comes to children. Obviously, the standards have to be high. But again, there are benefits to using a more comprehensive database, which is my vision of what SLDS would be. The technology issues are real, and it’s always a war of whether people hack it and we need to develop better mechanisms for protection. 

What are you trying to achieve, organizationally, with the proposed addition of an advanced research center?

IES is only 20 years old. My predecessor, , was the founding director, and he was brilliant. He set out to modernize the research and development infrastructure, and the coin of the realm. I was the NCES commissioner for three years, and I argued with him all the time about his model of RCTs, which are the gold standard. The way he saw it was — and he knew what he was doing, he’s really smart — “I can’t compromise this at the beginning. If I say, ‘Maybe we do this, maybe we do that,’ then nobody goes in the direction I want, and they just wait me out.”

The problem with the model was that RCTs, as they were originally introduced, were about average effects across populations. But to use a specific example, we’ve now moved into individualized medicine — it’s about what works for you, and under what conditions. So the mantra of IES now is, “What works for whom, and under what conditions?” Of course, we still have studies that look at main effects, but our work is all about identifying what works for individuals or groups of students. This requires a lot of changes about the way we think and how we do business.

My joke is that almost every science has . We don’t have a replication crisis, because we don’t replicate anything. Even if it works, we don’t replicate it! So a few years ago, we launched a replication RFA [request for applications]. IES was moving in that direction anyway, but we needed a much more systematic attention to replication. My mistake was we structured the replication this way: “Something worked in New York City, so give me another $5 million, and I’ll try it in Philadelphia.” Or, “It worked for some African American kids, let’s try it with Hispanic kids.” They were all big experiments, five years long. You can’t make progress that way.

Now we’re , which will be announced before the summer. I’m not sure how generalizable this will be, but the prize is based on using digital learning platforms to run experiments. The critical part is that you have to have 100,000 users on your platform to qualify. You run those experiments, you fail fast — that’s an incredibly important principle, fail fast — and the few things that work, you have to do multiple replications. The original plan was: experiment, replication, then another round of replications. At the end of which, the goal is to say, “Here’s an intervention that worked for these students, but not for these students.” Then you take what worked for those students and push it further. [On May 9, of the $1 million Digital Learning Challenge prize.]

It’s a systematic approach to rapid replication. Not everything in education research can be done in short order. Some things take a long time. But there are many, many things that last a semester or a school year, and at the end of that time, we have . This prize approach is just a different process for how we replicate. 

ChatGPT just opened up a whole world of discussion about the use of AI. But what happened with ChatGPT is like what we’re trying to do. The world has been doing AI for literally decades, but the last 10 years have seen increased computing power and more complexity in the models, and the foundational models have gotten bigger and bigger and bigger. We built an incredible foundation: machine learning, data science, AI. And all of a sudden, boom! ChatGPT is the first thing that caught the public’s attention, but it was built on this amazing foundation. Nobody knows what the next thing is that will break through, but they’re all being built on decades’ worth of work that established this foundation. It’s the same thing — the COVID vaccine could not have happened without that foundation.

What I’m trying to do is use IES resources to build this kind of foundation, which includes the learning platforms, rapid-cycle experimentation and replication, transformative research money. And the goal, using this foundation, is to look at things that pop out, that would not exist otherwise. That’s the goal: If we can do this with vaccines, if we can use it with chatbots, then what’s our foundation? What I hope is that, when we get NCADE going, we move this activity there and let it consolidate and interact. Then we start doing new, innovative research based on that foundation.

What are the kinds of research projects and outcomes that perhaps seem fantastical now, but could be realized in the way that MRNA vaccines have been?

The telos, the North Star, is individualized education. The first thing that is popping from this work is that IES is launching with the National Science Foundation, and it’s designed for students’ with speech pathologies. There in schools, so the demand for them is really high. We also do something incredibly stupid by burdening them with unbelievable paperwork.

This AI institute is funded by $20 million, split between IES and the NSF, and it has several prongs to it. The first is to develop an AI-assisted universal screener, because it takes time to diagnose exactly what students’ speech pathologies are — whether it has to do with sentence structure, vocabulary, pronunciation. Medicine has been doing this forever, by the way. The second prong is to use an AI toolbox to help design, update, and monitor the treatment plan. In other words, we’ve got a labor shortage, we know we need assessment and a treatment plan, and AI can do this. Or, AI should be able to do this, whether or not we can pull it off with this group. It’s a risk, like everything we do is a risk. But to me, this is a breakthrough.

I’m very optimistic that they’re going to pull it off, in part because of the third prong, which relates to the paperwork. It’s a lot of work, multiple forms, and it’s routine. Well, guess what can now type up routine paragraphs?

It seems like school districts, let alone Congress, could be really hesitant about deploying AI to write up after-incident reports, or what have you. Some regulatory structure is going to have to be created to govern the use of this technology.

I’m sure, like me, you’ve been monitoring the reaction to ChatGPT. There’s an extreme reaction, “Ban it completely.” Another extreme would be, “This is amazing, go for it!” And then there’s the right reaction: This is a tool that’s never going back in the box. So how do we use it appropriately? How do we use it in classrooms, and to free teachers from drudgery?

At least for the foreseeable future, humans will have a role because ChatGPT is often wrong. And the biggest problem is that we sometimes don’t know when it’s wrong. It’ll get better over time, I don’t think there’s a question about that, but it needs human intervention. Humans have to know that it’s not infallible, and they have to have the intelligence to know how to read ChatGPT and say, “That doesn’t work.”

Of course, it writes very boring prose.

But so do students.

And so do reporters.

Touché. You mentioned that you ran NCES over a decade ago. I’m wondering if you’ve noticed a change in Washington’s ambitions around using federal data to spur school improvement, especially now that the peak reform era is long gone.

It’s true that the level of skepticism is much greater. But the technology has also gotten way, way better. We hired the National Academies [of Science, Engineering, and Medicine] to do three reports for us to coincide with our 20th anniversary. was the most interesting one. It talks about new and somewhat less intrusive measures.

NCES is old. There are lots of arguments about when it started, but the modern NCES was actually a reaction to [sociologist and researcher] , who was intimately involved in the early design of longitudinal studies. They’ve gotten more complicated — the original was “” — and they’re all based on survey data, just going out and talking to people. Well, you know the fate of surveys: Response rates are falling and falling, and it’s harder to get people to talk. 

That’s how bad it’s gotten?

We were forced — “forced” makes it sound like it was a bad idea; and it did turn out to be a bad idea — to ask schools that were participating for a lot of information about IEPs [individualized education programs] and students with special needs. This gets back to that cost/benefit calculation because they would not share the classification of students with special needs, and they just refused to participate. So we ended up canceling that data collection. That was a leading indicator of the problem.

Increasingly, the question is what we can do to get the kind of data that these longitudinal studies generated without having to interview 15,000 or 18,000 kids. It requires a modification in the way you think, and it requires an expansive view of where the data lie. How much of the data that we’re asking students and parents and teachers about resides in state longitudinal data systems, for example? Could we drive the need for human interviewing to 5 percent or 10 percent of what we do now? It actually calls for a different thought process than, “Well, we always do ‘High School and Beyond’ this way!” But federal bureaucracies aren’t known for their innovative thinking, quite frankly. 

This adaptation might also mean that some of the unique things we get from surveys are going to have to go because no one will give them to you.

What, if anything, is the effect of changes in government on a massive organization like IES? You were appointed under President Trump, so the Department of Education has already undergone a really significant change, and now Congress has changed hands as well.

We’re not massive. We’re pretty small, actually.

We’re a science agency, and we were created when the Education Sciences Reform Act was authorized in 2002. I think the vision was that IES would grow not to the size of the  National Institutes for Health or the National Science Foundation, but on a trajectory that would put it into that kind of group. If you look at the original legislation, it’s still there. We have a board that is almost populated now, and the ex officio members include the director of the Census, the commissioner of the Bureau of Labor Statistics, and somebody from NIH. You don’t create a board with those kinds of people on it unless you expect it to be a big, major player.

It never got there. The budget is up to $808 million, in part because we got a pretty big chunk of money in the omnibus package. But $30 million of that was for DARPA-Ed, which we don’t have yet. Ten million dollars of that is for the . So Congress is interested in modernization, and we have to prove that this investment is worthwhile. 

What about the difference at the top? Are there notably different attitudes between Secretary DeVos and Secretary Cardona with respect to IES’s mission?

I’ve gotten enormous support from the department. We would not have gotten the money for NCADE, we would not have gotten the money for School Pulse without that support. DeVos’s goal was to make the Education Department go away, so this administration is obviously much more expansive. They’ve been careful in their support of things, but again, NCADE wouldn’t have gotten this far without the full-throated backing of the department, and of the Office of Management and Budget and the White House.

I’m reminded of the parties’ divergent positions on the federal government’s role in education, and how close the Department of Education came to never being authorized.

Jimmy Carter is a really good ex-president and a good human being, but was not a very effective president. As you know, the establishment of the department was in response to support that he got from teachers’ unions. So there is a philosophical debate about the role of the federal government in education, and it’s not a slam dunk. There are things that are worth talking about. A huge chunk of the money that the department manages is Title IV, so it operates like a bank, and it’s by far the smallest cabinet department in terms of workforce.

The other thing I’m not sure people fully understand is that the department isn’t just a grant-making operation, it’s also a contract shop. I taught public policy for decades at Stony Brook University, and when I decided that I was never going back, they asked me to give a talk to my former colleagues — almost all of whom I’d hired — and graduate students. My opening remark set everyone back on their heels because I said, “I taught here for 20 years, and every one of my students should sue me for malpractice.” Nothing I taught had anything to do with the way the sausage is really made. 

You hear this all the time, and academics pooh-pooh it. But I’ve been on both sides of it, and it’s really true: Academic research and the sausage factory are the same. In 20 years of teaching public policy, I never once mentioned contractors. And contractors run the whole show. It’s the way we do business, and it’s even more interesting than just: “I run this agency, but here’s what you, the contractor, should do.” All too often, it’s the contractors doing the actual thinking.

There’s been a long argument over the 20 years, on and off, that I’ve been associated with this stuff. We should, and must, contract out the work and the implementation, but we should not be contracting out the thinking. And that’s easy to articulate, but what’s the dividing line? When are we surrendering our intellectual capital — our control of the ship, if you will — to contractors who now design the ship, build the ship and steer the ship? 

Are there concrete examples from education research where you can point to projects that have gone off-course?

NAEP is $185 million per year, and it gets renewed every five years. Do you know how long Educational Testing Services has had the contract? Forty years. There are reasons why they get this contract — they’re good! But this is decades of either minimal or zero competition. And as the test has gotten bigger and more complicated, even putting together a bid to compete costs millions of dollars. People ask, “Why would we spend millions of dollars to compete with ETS when they’ve had the contract for 40 years and we see no indication that it will ever be different?”

To me, this is a serious issue.

Given that NAEP is the foremost product of NCES, there’s probably very little scope for reimagining it beyond, say, changing the testing modality from pen-and-paper to computers.

I agree on that, it’s largely the same technology that ETS invented 40 years ago. But the world has changed. It’s just gotten more and more expensive, but the amount of reimagining NAEP and its structure — whether or not we can do this cheaper and faster — is just lagging. It’s really frustrating. 

Even before COVID, there was a lot of pondering about the future of NAEP and the costs of administering it. The Long-Term Trends test was postponed between 2012 and 2020, right?

Yeah, but that’s an interesting case. The modern version of NAEP — which measures fourth- and eighth-grade reading and math — was authorized in 2002, I believe. It goes back to the ’70s, really, but we’ve been doing this version of it for 20 years. People love the Long-Term Trends test, but do we really need it when we’ve had 20 years of the main NAEP?

You’ve spent a lot of your career studying the value of higher education. Do you think we’re staring at a financial or demographic apocalypse for colleges and universities?

“Apocalypse” is way too strong a word. There are demographic trends such that the pool of students is shrinking, and there’s also incredible regional variation. The New England and mid-Atlantic states are experiencing much sharper declines than the South and the West. And of course, universities are not mobile; if you invest all this infrastructure in frigid Massachusetts or northern New York, and all the students move, you have to ask, “What do I do with all this infrastructure now?”

As to the value of a four-year degree, you and I operate in a sphere where everybody is highly literate. I read all the time, and I’m not talking about technical stuff. I read novels all the time because it’s an opportunity to live in a different world. But what’s the definition of literacy in the world we now live in, and what skills do we truly need? It’s still only a minority of people who go to four-year programs, but do we need to send even that many students to get four-year degrees? Most of them want jobs and family-sustaining wages, and do we need four-year degrees for that? The answer is obviously not, if you look at what’s happening in Maryland and Pennsylvania [where governors have recently removed degree requirements from thousands of state jobs]. 

The fact of the matter is, this is happening. To the extent that it’s happening, which I believe is necessary and important, the incentives for getting a bachelor’s degree start to decline. It becomes more of an individual question: “I’m going to spend five or six years at a four-year institution. It’s pretty much a cookie cutter, stamp-stamp-stamp experience, and I get a bachelor’s degree. Then, at a job interview, they ask what my skills are, and I can’t answer. Well, I can use ChatGPT!”

That’s quite grim. But is there a way to offer prospective students better information about the value they’re actually getting from college?

When I was at the American Institutes for Research, I ran something called , which was the first systematic attempt to crack all the work that had been done at the university level about what happens to students when they graduate. In the end, it’s the variation in programs that really matters — as soon as we started unpacking student outcomes, program by program, the programs that were technical were the winners. And the numbers were amazing. The first results we published came from and , and I swear to God, when I saw the results, I didn’t believe them. I thought we had an error in the data because associate’s degree holders were out-earning bachelor’s degree holders. 

We repeated this over and over and over again, in maybe 10 different states. It was always technical degrees coming out of community colleges that had the best earnings. In the state of Florida, I think the best postsecondary certificate was “Elevator Mechanic/Constructor.” There aren’t a lot of them, but the starting wage was $100,000! Then you start looking at sociology, English, psychology, and [gestures downward with his hand, makes crashing sound].

It turned out to be that these degree programs were increasingly becoming surrogates for skills. The worst outcome for all students was for those who went into liberal arts and general studies at community colleges. They’re doing that because they want to transfer to a four-year school, but only 20 percent of them actually transfer. They come out with a general education and no skills, and the labor market outcomes were a disaster. 

I was working with , which has employment records for millions of people and scrapes job advertisements, to start looking for what skills were in high demand. The beauty of it was that it was such good data, and even better, it was regional. Most people don’t move that often, so if I’m living and going to school in western Tennessee, it doesn’t help me at all to know what somebody’s hiring for in Miami. It basically asked, “How much money is each skill worth?” Things have probably changed since that time, but one of the highest-demand skills in almost every market was [the customer relationship manager software] , which was worth between $10,000 and $20,000. 

The other thing we did, which made me really popular, was look at the same outcomes for master’s programs. Colleges just create these programs, and the money goes to support everything that academics love: travel, course buyouts, graduate students. But the numbers are horrifying for most master’s programs. You create a master’s program, and they tend to be relatively cheap — and you don’t give TAs to master’s students, so it’s all cash. It’s a money machine, and so you create more of them. 

This brings me back to my previous question. If young people start seeing the value proposition of a four-year degree differently, and American fertility rates are producing fewer young people to begin with, it seems like the music eventually has to stop for the higher education sector. And if that happens, employers are going to have to rely on something besides the apparent prestige of a B.A. to distinguish between job candidates, right?

Both my daughters think I’ve become increasingly conservative because of what goes on in post-secondary education. Look at university endowments: All the money is hidden, but the subsidy we give to well-off students is humungous because their endowments are tax-free. Princeton has a huge endowment and a small student population; Harvard has a bigger endowment, but also a larger enrollment. When I was at the American Institutes for Research, we calculated the subsidy at Princeton per undergraduate student, and the subsidy was something in the vicinity of $100,000 per year. All hidden, nobody talks about it. Meanwhile the total subsidy for Montclair State University, which is down the road, was $12,000; the local community college was $3,000. This includes both state and federal money. What kind of system is this?

I testified at the Senate Finance Committee, and we got a small tax on endowments that was only for the very, very richest schools. I think it’s still on the books, but it was nowhere near as aggressive as it should have been. What I wanted was to take the money and set up a competitive grant program for community colleges because what they do is hard work, and they absolutely need the money. But what happened was that we got a much smaller tax that went into the general fund and didn’t go into improving anything. It was a disappointment.

This leads me to wonder what you make of the Biden administration’s student debt relief!

I’m not going to talk anymore. [Laughs] 

The other part of that same campaign was about property taxes. Georgetown and George Washington University, for example, don’t pay property taxes. Some universities acknowledge that they’re getting police services, fire, sewage, and so forth, and they negotiate something called a PILOT, a payment in lieu of taxes. One case was Harvard, which negotiated a PILOT with Boston that was way lower than what they would have otherwise paid, and ! A past college president told me once, “Your campaign to go after the endowments is never going to happen in a serious way. But if you start attacking our property tax exemption, that gets us worried.” 

Back when I thought some of this was actually going to stick, I . Washington, D.C.’s Office of Tax Revenue turns out to be a pretty good agency, and I asked them for a list of all the properties owned by Georgetown and George Washington. I just asked them to calculate the value of those properties, and what should be the payment given the commercial tax rate. It was a lot of money. The average residential property owner in Princeton, New Jersey, pays thousands of dollars more in taxes than they otherwise would because Princeton University doesn’t pay property taxes. 

Criticizing universities in the Washington Post doesn’t sound like a good way to make friends in your current position.

Well, I haven’t done anything like that in years. And of course, I was appointed by the previous administration, when none of this stuff was particularly poisonous.

So why did I survive when almost nobody else did? I don’t think education research is that important. I think I’m good at my job, and the reforms we’re pursuing — whether it’s establishing NCADE or revising the SLDS — are really strongly supported by the current administration, which I really appreciate. But I’m not important enough to be fired.

Isn’t that something of an indictment of federal policymakers, though? They should care more about education research!

Yeah, but then I would have been fired. [Laughs] 

I was affiliated with AEI [the American Enterprise Institute, a conservative think tank], and I still have many friends there. But this NCADE proposal has Democratic backing in Congress. A lot of the work is still nonpartisan, or bipartisan. We work really hard at this, and some of the things we’re pushing are just so fundamentally important that it doesn’t matter which party you’re in.

Does partisanship make it harder to pursue the higher education issues you’re interested in, though?

I’m only the third IES director that’s been confirmed and served any length of time. Russ Whitehurst was totally focused on early childhood literacy, and John Easton cared the most about K–12. So even over these last five years, IES is predominantly still K–12 oriented.

My newest thing in postsecondary research is to collect data on , and I don’t think people understand how big that is in community college. A lot of it is people enrolling to use a swimming pool, or someone who takes three courses in musicology but isn’t interested in credit or a degree. But increasingly, non-credit activity is being used for non-credit certificates that are job- and career-related. Maybe you need three courses to upgrade my skills for auto body repair, or to upgrade your IT skills, but you don’t want a whole degree or to enroll in college. So you can do it on a non-credit basis.

We don’t even know how many non-credit certificates are being granted because we don’t collect any data on it. [the Integrated Postsecondary Data System, the federal government’s primary source of information on colleges and universities] is rooted in Title IV, and it doesn’t collect information about schools that don’t take federal grants or about non-credit activity. But it’s really big, and many people are betting time and energy and money to acquire non-credit certificates. We’re trying to do some work on that, and OMB is very hesitant to mandate any collections of data because of Title IV, but they’ve approved a voluntary data collection. I don’t do research anymore, but I’m trying to broker deals with researchers and states — Virginia has a beautiful data set, for instance — to find out what happens if you get a non-credit certificate. Indiana is another opportunity. 

Launching this stuff is hard because it’s pretty untraditional, and it requires strong state data systems and the willingness of states to work with independent researchers. And of the $808 million we’ve got, none of it is walking-around money; all of it is competitive, everything’s peer-reviewed. Which it should be, but I can’t just say, “Sure, sounds great, I’ll send you $50,000.”

A proposal that would have made Michigan home to one of the largest voucher-like systems in the country is in jeopardy after the victory Tuesday night of Gov. Gretchen Whitmer and the likely emergence of a Democratic state legislature.

Whitmer handily defeated Trump-endorsed Republican Tudor Dixon. But it is the possibility of Michigan’s first Democratic “trifecta” since 1984 that could kill the proposal to create Education Savings Accounts in the state. Even if voters collected enough signatures to put the matter to a vote in the legislature, Democrats would almost certainly reject it, experts say.

A proposal before Michigan voters would create one of the largest voucher-like systems in the country, with the potential to offer more than a half-billion dollars in public funds for students to attend private schools.

There’s just one hitch: Most residents have never heard of it.

In a recent statewide , 93% of the electorate knew little or nothing about the proposal, which has been enthusiastically backed by former education secretary Betsy DeVos and her family, who have donated $4 million to the cause. The proposal would create Education Scholarship Accounts (ESAs) that offer 100 percent tax credit for donations to “opportunity scholarships” that pay for private school tuition and other educational services. 

“There’s always conversations about vouchers,” said Terah Chambers of East Lansing. “But I haven’t heard anything from parents or others in my district about this initiative.”

Chambers serves on the board of her local school district, where her son is in sixth grade. She is also a professor of education, focusing on K-12 administration, at Michigan State University. If anyone would be expected to understand the complexities of the state’s proposed school choice initiative — or hear other parents’ concerns — it would be her.

But that’s not the case. 

“I’m an education policy scholar and I don’t always understand the nuances of these types of initiatives,” she said. “They can be intentionally written in a way that masks the motivation and impact. Of course people will have trouble understanding them.”

Michigan has long debated vouchers and school choice. So far, to overturn a constitutional amendment barring public funds from going to private schools have failed. In 2000, the state emphatically defeated a voucher initiative. But there’s some evidence that the times have changed as the pandemic exacerbated existing educational inequities and fueled parent discontent. In addition, the U.S. Supreme Court has in recent years shown itself willing to embrace broad definitions of

Along with the funds from DeVos and her family, “Let MI Kids Learn” — the political action committee backing the initiative — has received another $4 million from other supporters. 

But few potential voters are focused on the measure.

A May conducted by EPIC-MRA, a Michigan-based polling company, found that 93 percent of Michigan voters knew little or nothing about the proposal. After respondents heard a neutral message explaining the initiative, 36 percent supported it and 48 percent opposed it, with 16 percent undecided. That reflects a majority of Democrats and plurality of Republicans, said Bernie Porn, the company’s president.

The lack of attention is in inverse proportion to the proposal’s possible outsized impact. It would create one of the largest ESA programs in the country in terms of how much money it can divert from the state, according to Josh Cowen, a professor of education policy at Michigan State University.

The scholarship fund has a $500 million cap the first year, and could increase by 20 percent annually depending on how much of the fund is distributed.

 ‘Tax shelters for the wealthy’

Michigan’s scholarship proposal is modeled on one passed in Kentucky, said Beth DeShone, executive director of the Great Lakes Education Project, an advocacy group established by DeVos. The Kentucky program is currently being in court. The Franklin District Court that the program violated a provision in the state constitution that prohibits using private money for public education. The decision was appealed, and the state’s Supreme Court arguments in October.

This type of initiative “is distinctly different than a state voucher that is normally given directly to a private school,” DeShone added. “Here, the families completely control where those dollars go and who the service provider will be. We fully believe that families need every opportunity in their toolbox to meet the needs of their individual students.”

The Michigan scholarships would be available to all students five years old or over whose family is defined as low-income under the proposal’s formula, has a disability or is in foster care. The money is expected to primarily fund private school tuition, but can also be used for tutoring, transportation and other education needs, according to Michael Van Beek, director of research at the conservative , a Michigan think tank. 

Education choice has also been a hot topic in the Michigan governor’s race. Democratic incumbent Gretchen Whitmer opposes the education proposal, while her Republican challenger Tudor Dixon it. DeVos is also a big Dixon supporter and has contributed at least to her campaign.

Last year, both houses of the Michigan legislature passed bills that would have created ESAs, but Whitmer vetoed them, they would “turn private schools into tax shelters for the wealthy.”

In most other states, that would be the end of the story: Advocates would have to wait for a more sympathetic governor or put it before voters in 2024. But in Michigan, supporters have : Residents can petition to send the matter to the legislature. They have already turned in the needed number of signatures (8 percent of those who voted in the last gubernatorial election — in this case, 340,047 signatures) and once they are certified by the secretary of state, the proposal will go before the legislature. 

If it passes, the governor cannot veto it. If it is defeated or not acted upon, it will go before voters in 2024. 

The idea was that the Republican-dominated legislature would “rubber stamp” the initiative, said Bill Ballenger, a political pundit who served as a Republican state legislator almost 50 years ago and now publishes , an irreverent look at Michigan politics. “It would be an end-run around the governor.”

But he predicted Benson will not submit the initiative to the legislature until after the Nov. 8 election.

And since an independent commission redrew the state’s districts, “everything is up for grabs,” Ballenger said. “There is rampant speculation about whether the Republicans will control one or both of the Houses or if the Democrats will.” And while Whitmer is still ahead of Dixon in most , her lead is shrinking as the election nears.

Ballenger, noting the 2000 that “got killed,” nonetheless wonders if “the pandemic has shifted public opinion.” But he still believes the measure will be defeated if it goes on the ballot in 2024.

‘Money should follow the child’

Unlike most potential voters in the state, Katie Woodhams, a mother of three in the Kalamazoo area, is well-aware of the opportunity scholarships and is a big supporter.  

Her oldest, a high school freshman, has high-functioning autism and does most of his schooling remotely. But he participates in archery on-site. He can also meet with teachers at school or, if room is available, sit in on a class. 

Her middle son is attending seventh grade in-class in a public school, but was previously enrolled in virtual learning because of severe asthma. And her daughter, a first-grader, is also going virtual for the time being.

The schooling is provided without cost through the public system, and she believes her children have received “a great education.” She’s become a strong advocate for choice, she said, because that’s what her children have enjoyed.

“It’s extremely important we are funding the students and not funding systems,” she said, echoing a common message among supporters. 

She’d also like financial help, which the act could give, to provide sports for her middle son, arts programs for her daughter and social coaching for her older son; Woodhams said she and her husband now pay $150 monthly for the social skills coaching.

Part of the trouble are widely conflicting estimates about how the tax credits — which allow residents to divert state taxes to the scholarships — will affect spending on public education. Much of that depends on how many students now going to public schools would use scholarships to switch to private schools. 

Based on conducted by the nonprofit , 60-90 percent of scholarship uses would come from public schools, Van Beek, of the Mackinac Center, said. The financial impact on the state would be minimal, because what it would lose in taxes, it would gain by not paying for students who have left public education, he added. 

Cowen, who has researched voucher programs around the country for 17 years — including five as an official evaluator of Wisconsin’s voucher program —noted that both Arizona and New Hampshire recently expanded private school voucher programs. In Arizona, 75 percent of the new voucher users were students already in private schools and in New Hampshire, that figure was 90 percent.

“Don’t take my word for it, don’t take Mackinac’s word, look what happened in other states,” he said.

Peeling back the layers

The main group opposing the initiative, the coalition, has raised far less money than its opposition — Mark Schauer, treasurer of the opposition coalition, argues that the program has “the potential to siphon up to $1 billion in public tax dollars away from the state.” 

Chambers, the school board member and education professor, worries that the proposal “is a mechanism to put public funds into private hands. The trouble with initiatives like this is that they sound great on paper — who wants to oppose the idea of opportunity scholarships — but if you peel back the layers, this will not help us accomplish what we want to in this state.”

Despite a very favorable education budget passed by the state last year, Chambers said the state is facing “a long-time disinvestment in education that is cumulative.” She pointed to the fact the state ranked in the recent National Assessment of Educational Progress released in October. 

One thing that is often lost in school choice debates, Cowen said, is how students do academically. , especially more recent studies, shows that children who use vouchers to move to private schools often do worse academically based on standardized test scores than comparable students in public schools. That’s because there simply aren’t enough good private schools to serve at-risk students, he said. 

For Bernita Bradley, a Detroit resident and a director with the National Parents Union, a network of parent organizations and activists, neither side is looking out for the interests of Black and brown children.

She has tried city and suburban public, charter and private schools for her children and wasn’t satisfied with any of them. She agrees with Republicans that “money should follow the child,” but asks, “Who’s going to make sure that’s equitably done?”

For that reason, she practices what she calls “extreme choice.” In 2020, she started , a homeschooling co-op and advocacy network. She homeschooled her own daughter, who has now graduated, for a year and a half. 

Lack of satisfactory educational opportunities for many of Michigan’s children “is not a pandemic thing, or a last 10- or 20-years thing,” she said. “This has been going on for generations.”

And while the controversy surrounding the issue hasn’t changed, the pandemic offers up a troubling new context: Districts are reporting spikes in , violent attacks on school employees and blatant disregard for school rules.

“There is certainly a much higher level of dysregulation in our kids,” said Rico Munn, superintendent of the Aurora Public Schools in Colorado. He added that educators usually expect students to fall into a routine and follow rules by September. “We weren’t hitting that until spring break.”

The education department is expected to update its policy in two parts. One will focus on students with disabilities, who are significantly to be suspended and expelled than non-disabled students. The other will address racial gaps in discipline — a reality that persists in many districts despite over the past decade to keep students from being removed from school and often referred to police.

Advocates for students’ educational rights are eager for the department to make a strong statement against discipline that keeps students out of the classroom.

“Discipline is inherently an authoritative tool used to punish students for being what an adult has decided is disobedient,” said Denise Stile Marshall, president of the Council of Parent Attorneys and Advocates, which focuses on the rights of students with disabilities. “There is a lot of research on this, but simply put, punitive school discipline does not improve student behavior or academic achievement.”

If that sounds familiar, it’s not accidental. The person leading the department’s effort is Catherine Lhamon, assistant secretary at the Office for Civil Rights, the same position she held under President Barack Obama. Seth Galanter, who worked with Lhamon during the Obama years, has also returned to the civil rights office after four years at the National Center for Youth Law.

In 2014, the Obama administration issued a saying that schools where Black and Hispanic students were disproportionately removed for disciplinary reasons could be in violation of federal civil rights laws — even if those students misbehaved at higher rates. 

Former Education Secretary Betsy DeVos rescinded that guidance in 2018, siding with those who called the move and said it misinterpreted meant to prevent discrimination.

The Biden administration comes to the issue not only more sympathetic to the idea of restorative justice, but in the midst of a pandemic that has seen an increase in student misbehavior. One said student behavior was so “abysmal” that educators were afraid for their safety.

‘A year of disrupted schooling’ 

That’s one reason why Michael Petrilli, president of the conservative Thomas B. Fordham Institute, that the department should hold off on new guidance, arguing that districts shouldn’t have to fear a federal investigation for removing disruptive students from the classroom. 

The pandemic, he noted, was worse for low-income Black and Hispanic students, who were more likely to attend schools that had been closed longer. 

“The very same students that have more catching up to do after a year of disrupted schooling are also facing the prospect of a more challenging learning environment if schools are hesitant to remove problem students,” he wrote. 

Others say the pandemic shouldn’t interrupt the administration’s efforts to revisit the issue of bias in school discipline.

“It is always a good time to say that racial discrimination is wrong [and] that children with disabilities have the right to be alongside their non-disabled peers,” said Liz King, the senior program director for education at the Leadership Conference on Civil and Human Rights. 

She thinks the guidance should reflect showing police in schools don’t reduce gun violence but do increase suspensions, expulsion and arrests of students — especially for Black students. She wants the department to take a stand against seclusion and restraint of students and “lean in” to the rights of Black and Hispanic girls and LGBTQ students.

Black girls are five times more likely than white girls to be suspended from school at least once and four times more likely to be arrested at school. A 2016 from advocacy group GLSEN found that LGBTQ students are suspended at higher rates than non-LGBTQ students. 

‘Absolutely a dance’

The Obama-era guidance embraced so-called restorative justice practices that aim to give students a chance to build stronger relationships, work out their grievances and make amends for their actions in lieu of suspension. Twenty-one states and the District of Columbia have passed laws supporting the model, according to the at Georgetown Law School. 

on such programs was mixed, but a more from California showed restorative practices can shrink Black-white discipline disparities and are associated with higher grade point averages in high school.

But “good discipline is very expensive” and hard to implement with the “regular teacher allocation in the school,” said Elliott Duchon, former superintendent of the Jurupa Unified School District, near Los Angeles. 

His district launched a multi-year effort to reduce suspensions and expulsions after federal officials found that Hispanic students were more likely to be suspended than white students.

Los Angeles Unified’s restorative justice program costs $13 million a year, according to the district, and funding for the Oakland district’s program — considered — was almost cut until the city and private funders stepped in to pick up the cost. 

Critics of alternative discipline practices argue the Obama-era guidance created tension between teachers who make discipline referrals and administrators who send students back to class without any consequences.

“It’s absolutely a dance,” said Jacqueline Shirey, at-risk coordinator for the Beaumont Independent School District in Texas. “If we are going to say that students can’t leave, what are we doing to help the teachers?”

With that in mind, Shirey began training teachers last fall to set up “de-escalation” spaces in their classrooms — a desk with a box that includes stress balls, 500-piece puzzles and writing materials. 

“I saw a way for students to learn how to manage their own emotions before it became disruptive, and I didn’t want students to leave my classroom to do that,” she said, but added that ground rules are necessary. “If you don’t implement it with a purpose, then it really does become supplies in a corner that students can play with.”

When students returned last fall, some administrators decided it was important to take a business-as-usual approach to discipline. 

In Nashville, Hunters Lane High School Principal Susan Kessler said her teachers “enforce dress code this year and every year” and that it helps in “maintaining school culture, enforcing building security and reducing distractions in the classroom.”

Other school leaders factored in the impact of school closures on students’ behavior.

Aaron Eyler, principal at Matawan Regional High School in Aberdeen, New Jersey, brought his staff together in September for a frank conversation about what to expect when students returned. 

He told them not to worry about trying to “win the battle” against students wearing hoodies and hats. And he wasn’t surprised to see more of what he referred to as insubordination, like students wearing Airpods and being late to class. The point, he said, was to keep students from missing even more instruction.

“With … what happened last year and the lack of consistent structure,” he said, “there was no way we weren’t going to have greater instances of discipline than what we’re accustomed to in school.”

Ronn Nozoe, executive director of the National Association of Secondary School Principals, said any guidance from the department is likely to “ruffle feathers,” but he added, “You never want to tie the hands of folks who are actually doing the work.”

Under the proposed changes, announced Thursday, the law would protect victims against discrimination based not just on sex but on sexual orientation and gender identity, in effect adding transgender students as a protected class. Current regulations are silent on these students’ rights.

But the proposal sidesteps the question of transgender athletes’ rights to compete in girls’ sports, an explosive issue administration officials said will get its own set of regulations at a later date.

“This is personal to me as an educator and as a father,” U.S. Education Secretary Miguel Cardona said during the announcement. “I want the same opportunities afforded to my daughter and my son — and my transgender cousin — so they can achieve their potential and reach their dreams.”

The changes come 50 years to the day after President Richard Nixon signed the federal civil rights law that bans sex discrimination in education.

Cardona on Thursday noted that LGBTQ youth “face bullying and harassment, experience higher rates of anxiety, depression, and suicide, and too often grow up feeling that they don’t belong.”

The proposed regulations, he said, “send a loud message to these students and all our students: You belong in our schools. You have worthy dreams and incredible talents. You deserve the opportunity to shine authentically and unapologetically. The Biden-Harris administration has your back.”

Education and civil rights groups welcomed the proposed rules, with Ronn Nozoe, CEO of the saying they “greatly strengthen principals’ abilities to ensure schools provide what students need.” 

Amit Paley, CEO of, a suicide prevention and mental health organization for LGBTQ youth, applauded the administration’s bid to extend Title IX protections to sexual orientation and gender identity, saying, “School should be a place where students learn and are comfortable being themselves, not a source of bullying and discrimination.”

But the proposed rules irked some conservative groups. In a, Nicole Neily, president of Parents Defending Education, called the move a “federal overreach” and dubbed the proposed regulations “The Biden administration’s ‘Must Say They’ rewrite of Title IX,” refering to the preferred pronoun of some who are transgender. 

“American families should be deeply concerned by the proposed rewrite of Title IX,” Neily said. “From rolling back due process protections, to stomping on the First Amendment, to adding ‘sexual orientation and gender identity’ into a statute that can only be so changed by Congressional action, the Biden Administration has shown that they place the demands of a small group of political activists above the concerns of millions of families across the country.”

Taken together, the proposed regulations would create a sharp contrast to Trump administration rules adopted in 2020 under then-Education Secretary Betsy DeVos. Under DeVos, for instance, schools were prohibited from opening Title IX cases if an alleged assault took place away from school grounds. Under the new rules, schools would be required to address “hostile environments” in programs and activities, even if the conduct that contributed to the hostile environment “occurred off-campus or outside the United States,” a senior official told reporters.

“Our view now is that the existing regulations do not best fulfill Congress’ mandate in Title IX,” the official said. “There is more we can do to ensure that students do not experience sex discrimination in school.”

Cardona’s proposed changes both expand the definition of sexual harassment and potentially limit opportunities for students accused of sexual assault or harassment to confront their accusers. Administration officials said the new regulations would require schools to take “prompt and effective” action on campus sex discrimination.

But they also said the regulations in effect loosen requirements on schools’ sex assault investigations: The proposed rules, for instance, would “permit but not require” schools to hold live hearings in which accused students can directly confront survivors.

A senior department official, who briefed reporters Thursday on background, said the administration has concluded that a live hearing, which resembles a courtroom procedure, “is one, but not the only way, to address investigation and to determine what has occurred.” The official noted that the vast majority of schools were not conducting live hearings before the Trump administration began requiring them in 2020. “And it was clear to us that a live hearing was not essential to determination of outcomes and a fair process,” the official said.

In a statement, Sen. Richard Burr (R-NC), said the move “returns to the deeply flawed campus disciplinary process of the Obama Administration, which led to hundreds of inconsistent judgements and more than 300 legal challenges. The existing rule struck a balance that follows the law and is fair to both parties.”

Notably absent from Thursday’s announcement was any mention of Title IX’s application to athletics, which has caused a furor due to a handful of transgender athletes’ bids to compete in girls’ sporting events.

The administration said it will engage in a separate rulemaking process to address the law’s application to athletics and gender, but offered no immediate timeline for the process. A senior department official said the topic “deserves its own separate rule-making process.”

Administration officials have previously said Title IX, which prohibits sex discrimination and harassment in programs receiving federal funds, will echo the in Bostock v. Clayton County, Georgia, which extended protections against sexual harassment and discrimination in the workplace to LGBTQ employees.

While the department’s interpretation of the Bostock ruling doesn’t mention sports, the Biden administration last year filed in a West Virginia case in which a transgender girl who wants to compete with girls on her middle school cross country team is challenging the state’s 2021 law banning students born as male from participating in girls’ sports. 

A group of 15 Republican-led states, led by Montana Attorney General, has threatened to challenge the regulations in court,. Since last year, a dozen states have passed legislation prohibiting trans females from competing in girls’ and women’s sports. 

Last week, the , the world governing body for swimming, voted to prohibit transgender athletes from competing in high-level women’s competitions unless they began medical treatments to suppress testosterone production early in their lives.  

The group, known internationally as Fédération internationale de natation, or FINA, said it would also a new, “open” category for athletes who identify as women but do not meet the requirement to compete against people who were female at birth.

By contrast, World Cup and Olympic soccer star Megan Rapinoe last week that she is “100 percent supportive of trans inclusion” in sports, noting that what most people know about the topic comes from “relentless” conservative talking points that don’t reflect reality. 

“Show me the evidence that trans women are taking everyone’s scholarships, are dominating in every sport, are winning every title,” she said. “I’m sorry, it’s just not happening. So we need to start from inclusion, period. And as things arise, I have confidence that we can figure it out. But we can’t start at the opposite. That is cruel. And frankly, it’s just disgusting.”

The public has 60 days to send comments on the new proposal, which could take several months to finalize. 

More than two decades after Michigan voters resoundingly rejected vouchers at the ballot box in 2000, DeVos and her allies are attempting to pass a new school choice law through an unusual wrinkle in the state’s ballot initiative process. The public campaign, known as Let MI Kids Learn, would award tax credits to private donors who contribute to newly created scholarship funds; those scholarships could be accessed by families to pay for their educational expenses, including private school tuition. 

The shift in policy would be “substantial,” said Ben DeGrow, director of education policy at Michigan’s right-leaning Mackinac Center. 

“Michigan would be going from basically zero private school choice to a robust choice program very quickly,” DeGrow said. The new benefit would somewhat resemble offered in 22 other states, many initiated or revised over the last decade, he added. 

Its path to enactment, however, sets it apart. After two tax-credit bills were vetoed last fall by Democratic Gov. Gretchen Whitmer, conservatives pursued a different strategy to realize their aims. Now, if the organizers of Let MI Kids Learn collect a relatively small number of signatures by June 1, the proposal can be passed again by both houses of the Republican-held state legislature. After that, the law cannot be vetoed again by the governor, who is running for re-election later in the year. 

Few other states permit such a process, which combines a direct appeal to the electorate with the strong-arm tactics of the statehouse. If local Republicans prevail, their blueprint for success will be one that lawmakers elsewhere won’t be able to follow. But they will have significantly advanced the aims of the DeVos family, which has long sought to bring private and religious schools under the umbrella of K-12 options supported by their home state. 

John Austin, a senior fellow at the Brookings Institution and the former Democratic president of the Michigan State Board of Education, described the state’s generational fight over schools as a “20-year shooting war” that led to this push. 

“All these battles over privatizing schools have eviscerated the public education establishment of administrators, personnel, and their influence,” Austin said. “It’s a very different politics than 20 years ago, and it’s carried the day because of the aggressive efforts of the DeVoses and their allies.”

‘A perfect deal for the DeVoses’

Michigan is perhaps America’s most wide-open environment for public school choice. A huge charter school sector enrolls about 150,000 K-12 students, and even among families who stick with traditional public schools, many take advantage of the popular , which allows students to attend schools outside their own district.

But like most states, Michigan disallows private schools from receiving public money. That prohibition was added to the state constitution after a referendum in 1970 and loudly reaffirmed in 2000, when to lift the ban. The DeVos family to that later effort, which failed by a 39-point margin.

In the intervening years, Republicans have labored to widen the available alternatives to district schools, in 2011 and the following year. They’ve also opened subtle cracks in the wall separating the public and private sectors by to reimburse private schools for costs associated with state-mandated expenses like fire drills and inspections. 

However, the party didn’t reopen the question of directing state funding to pay for private school costs until late 2021, when GOP majorities in the state House and Senate legislation creating “opportunity scholarships” that would be available to qualified families; eligibility was tied to household income, which could be as high as roughly $98,000 for a family of four. Beneficiaries could receive nearly $8,000 to pay for private tuition, but the bills also offered hundreds of dollars to public school students to spend on tutoring, books, and other supplemental learning costs.

David Arsen, a professor of education policy at Michigan State University and of the DeVos family, said that the structure of the tax credits was “almost nicer” than the straightforward voucher design that was unsuccessfully put before voters.

“It’s sort of a perfect deal for the DeVoses,” Arsen reasoned. “The money they formerly would have given to the state, they will now be able to give to the private school vouchers of their choice.”

Austin said the push was directly related to the COVID-19 pandemic, when some Michigan districts kept schools closed for months. from researchers at the University of Michigan found that public school enrollment in the state dropped by 3 percent in the fall of 2020 (enrollment among kindergartners dropped by 10 percent), while homeschooling and private school attendance simultaneously climbed. In other states, too, parents began to embrace specialized “education savings accounts” to offset new expenses incurred after withdrawing their students from traditional schools.

“Some of the parents I know just found other schools that had stayed open, including private ones,” Austin said. “So the political moment is right for arguments about parental rights and parental choice governing kids’ education.”

A request for comment from the DeVos Family Foundation was directed to Let MI Kids Learn spokesman Fred Wszolek, who agreed that by underwriting private school tuition or instructional expenses such as curricular materials, the new policy could give parents “leverage they didn’t have before.” 

“They can go to their school board meeting and say, ‘Hey, why are you teaching this subject this way? We think it should be different,’” Wszolek said. “And now everybody will have the potential to take their kids and go [to private school] or homeschool their kids. So the education establishment — the teachers’ union, the school boards, and the school superintendents — they’re all going to have to get used to the fact that change is coming.”

Unusual legislative maneuver

Even before Gov. Whitmer vetoed the two bills last November, having previously called them “nonstarters,” that they would launch a petition drive in support of the tax-credit scholarships. Within a few weeks, , giving the organizers six months to collect a little over 340,000 signatures from Michigan voters.

Gathering the necessary signatures would allow the legislature to vote again on the tax credits within a span of 40 days, in accordance with the Michigan Constitution’s “indirect initiative” provision. If they vote in favor, the proposal will be enacted — and Whitmer cannot veto it.

The indirect initiative grants tremendous power to legislative majorities in Lansing, though they have seldom exploited it. Due in part to favorably drawn district boundaries, Republicans have made up a majority of the state House for 22 of the last 28 years; they have held the Senate continuously since 1984. 

This year, frustrated by Whitmer’s , the GOP related not only to tax-credit scholarships, but also voter ID requirements and pandemic-inspired emergency orders. Lou Glazer, a longtime observer of local politics and head of the nonprofit Michigan Future Inc., said that while the tool had always been available to politicians, its previously infrequent use made it feel like “a brand-new tactic.”

“What’s changed is the willingness to use this device, which has been there for a while,” Glazer said. “As long as you control the legislature — the governor is irrelevant — you can initiate and enact policy with very few signatures.”

In fact, the signature threshold of 340,047 represents just 8 percent of the votes cast in the 2018 gubernatorial election, in which nearly 2.3 million voters supported Whitmer. Sources agreed that the mark would be easy to hit, especially given the extensive resources of its proponents. State financial reports show that members of the DeVos family over $400,000 to Let MI Kids Learn, which will help underwrite a highly organized corps of professional signature collectors. The Great Lakes Education Project, an advocacy group established by DeVos, has kicked in another $25,000.

Provided the petitions win the requisite support, the question becomes whether the legislature will go along with the process. Michigan State’s Arsen argued that the support of Republican lawmakers was “not a slam dunk,” even though they passed the original legislation last year. Many represent school districts that have faced shrinking enrollment and financial distress for years, and the notion of propping up private schools out of the state’s coffers — particularly through such an unorthodox legislative avenue — might give them pause.

At the same time, he added, the DeVos political machine can be expected to keep wrangling votes in favor of their top agenda item. In past struggles over education policy and governance, the family has proven more than willing to finance primary challenges against Republicans who stray from the preferred line.

“If this initiative gets the signatures and goes before the legislature, everybody knows that the DeVoses will be putting on a full-court press,” Arsen said. “They’ll use their resources to the extent possible, and there’s usually not a lot of wiggle room for legislators to step outside that influence. They know they’ll be primaried if they do.”

Looking toward election

The Mackinac Center’s Degrow said that Michigan Republicans would require little arm-twisting to repeat their votes in favor of the opportunity scholarships. The ongoing groundswell in favor of greater family involvement in education — typified by Virginia’s gubernatorial election last November, in which Glenn Youngkin rode to victory on a wave of parental discontent — amplified the political case for the policy.

“They’ve already publicly committed themselves on this issue, and the timing of the governor’s veto of the bill coincided with the parent uprising election in Virginia,” Degrow argued. “That may have reinforced in their minds that there’s a political advantage in recognizing the wishes of parents.”

Let MI Kids Learn’s Wszolek said he believed the proposal would become law in 2022, and that its detractors would struggle to dismantle the choice scheme in the future. 

“If the teachers’ union wants to take it to the ballot in 2024 to try to repeal it, they’re free to do so,” he said. “But I don’t think they’re going to be successful because once people see that options are a great idea, they’re not going to want to do away with them.”

Whatever popular support the scholarships might gain if enacted, severely diminished labor strength could help them survive future elections. Since Michigan became a right-to-work state in 2012, membership in its largest teachers’ union, the Michigan Education Association, . Additionally, nearly 7,000 member accounts have been sent to collections because of non-payment of union dues.

For the moment, most of the state’s political class is already looking toward Election Day 2022, when every seat in the legislature will be up for grabs. Republicans are favored to hold onto both chambers, especially in a midterm cycle when voter sentiment from the Democrats. But designed by the state’s newly nonpartisan redistricting commission could make this fall’s races more competitive than they’ve been in years. If the tax-credit initiative proves controversial with voters, that shift in political circumstance could prove an obstacle.

Gov. Whitmer, who became a national figure during the pandemic, is also running for a second term this year. The field of Republican challengers has yet to fully take shape, though shows the incumbent narrowly leading former Detroit police chief James Craig. K-12 issues could offer an opportunity to widen the gap.

A request for comment from the governor’s office was not returned. Already, however, Whitmer has unveiled that includes the largest increase in education funding in two decades. The proposal, drawing both from federal COVID relief and projected state surpluses, would offer school employees substantial annual bonuses over the next five years, along with a 5 percent increase in overall per-pupil support.

Arsen said that in a career of studying education finance in the state, he’d never seen such an ambitious plan to increase school spending. He added that the move might carry particular benefits in areas of the state that have long been economically depressed, and where school districts are some of the largest employers.

“Rural Michigan is not enjoying the economic dynamism — such as it is — of the rest of the state. And it’s not unlike parts of Wisconsin or Pennsylvania: They’re all red, but the superintendents are like the mayors in these towns. Whitmer understands this. She’s got to have something to say to rural Michigan, and she’s leading with schools.”

When Education Secretary Miguel Cardona toured South Bend, Indiana’s Madison STEAM Academy in September, he made a quick impression on the district’s superintendent, C. Todd Cummings. 

Cummings remembers the secretary’s interest in COVID protocols, the facility’s STEM makerspace, and that he spoke Spanish to students at the bilingual school. By the time the visit ended, he came away feeling like he could pick up the phone and call Cardona if needed. 

“He’s done a lot to make the department more approachable,” Cummings said. “He understands running a district, but he also understands teachers in the classroom.”

Having one of their own helming the U.S. Department of Education has gone a long way toward mending the fractured relationship between district leaders and the agency that existed under Cardona’s predecessor. Betsy DeVos was the consummate outsider. She warred with unions, made comments that many teachers found , and attempted to direct relief funds meant for the public system to private schools. In contrast, when the former Connecticut state chief meets with superintendents and school leaders, “he’s talking shop” on everything from bell schedules to graduation rates, said Ronn Nozoe, head of the National Association of Secondary School Principals.

But almost a year into Cardona’s tenure, and with the pandemic showing no signs of abating, his department has sometimes struggled to keep up. COVID-19 has thrust the agency into the public eye almost as much as the Centers for Disease Control and Prevention, and, like the CDC, it has often come under fire for being slow to respond to a fast-changing virus. To some, Cardona’s camaraderie with educators helps explain why he has sometimes appeared reluctant to embrace another constituency, whose power and visibility has grown with the pandemic: parents. 

Sarah Carpenter, executive director of The Memphis Lift, a nonprofit that trains parents to advocate for their children’s educational needs, said she hasn’t forgotten that parent leaders weren’t asked to speak at Cardona’s first virtual summit on reopening almost a year ago. 

“They know we’re here, and we’re just not accounted for,” she said, adding that parents “in those communities where this pandemic hit the hardest” should have had a voice. A June event focusing on equity didn’t feature parents either.

Cardona hasn’t ignored parents, and often reminds the public that his two teenage children, still attending public school in Meriden, Connecticut, have endured their own disruptions in learning. His first act as secretary was to write to parents and students acknowledging the hardships caused by the pandemic, and he has urged schools to rebuild trust with families.

More recently, when schools began to shift to remote learning because of the Omicron variant, Cardona told ����Ӱ��, “Our parents have done enough.” That same week, the announcement of another round of grants to state came with Cardona’s statement that, “Meaningful parent engagement … has never been more important.”

But observers say his messages tend to emphasize over student recovery. When the department last month to use federal relief funds for teacher pay raises and hiring bonuses, Marguerite Roza, director of Georgetown University’s Edunomics Lab, said “the balance feels a little off.”

The pandemic has mobilized many parents to take a more central role in their children’s education, and their frustration over extended school closures likely tipped the Virginia governor’s race in favor of Republican Glenn Youngkin. 

Keri Rodrigues, president of the National Parents Union, has tried to drive that point home. She regularly participates in “stakeholder” meetings with the department, and shares monthly parent survey data with Christian Rhodes, chief of staff for the department’s Office of Elementary and Secondary Education. But she described the department’s parent engagement efforts as a “box-checking exercise.”

“That’s not what this moment calls for. It calls for listening to people’s pain,” she said. “Parents expect to be engaged on a whole new level because we had to hold it down for [schools] while they weren’t there.”

‘Not a slow-moving moment’

Leaders in education said Cardona has shown skill in managing the mountain of challenges he faced when he entered the job: more than half of schools still not fully open, expectations that he quickly reverse the previous administration’s stance on students’ civil rights, and low morale among what Nozoe called the department’s “beat-down career staff.” Cardona, he added, is trying to rebuild an agency that DeVos shouldn’t even exist.

Cardona said his top priority has been helping schools reopen and stay that way. Others credit him with steering billions in federal aid to states and districts on a short timeline.

“They’ve made a huge amount of progress in a very, very difficult time,” said Linda Darling-Hammond, president of the California State Board of Education and president and CEO of the Learning Policy Institute, a think tank. She led President Joe Biden’s transition team for education and as the nominee.

She specifically noted his team’s work to get the American Rescue Plan funding for schools “out the door with guidance and support for how to spend it” and early efforts to make the CDC’s “wonky and mysterious” school reopening guidelines more accessible to educators. Recent confusion over whether the agency’s updated quarantine guidance applied to schools, however, drew fresh .

Some noted that communication from the department often hasn’t matched the urgency state and district leaders have experienced during the pandemic. 

In November, the department said it was OK to use relief funds to pay for alternate forms of for students in the face of a bus driver shortage. But that was a month after New York , a Democrat, asked for the guidance, and two months after Massachusetts Gov. Charlie Baker called in the to drive students to school. 

In mid-December, the department issued a on jumpstarting school accountability systems, but state officials started calling for that in September. 

“They are slow moving,” said Roza, “and it’s not a slow-moving moment in public education.”

In an interview with ����Ӱ��, Cardona said the department responds with guidance when “we hear from the field.” He noted the staff’s efforts to host multiple webinars and respond to questions from educators, but acknowledged that guidance from the department has sometimes lagged. He vowed to do better. “We have to stay ahead of things, and we’re going to continue to improve communications.”

‘More influence’

As he nears his first year as a cabinet member, Cardona reflected on what the department has accomplished under his leadership. 

While Omicron has led to short-term closures of as many as 5,400 schools, according to a frequently updated , Cardona noted that in-person learning had hit of schools by early December. And he takes pride that the department is addressing problems with Public Service Loan Forgiveness — a federal program meant to encourage students to go into nonprofit and public sector jobs, like teaching, in exchange for debt relief. Under DeVos, the department denied most requests for relief, and borrowers complained that loan servicers gave on how to meet the program’s strict criteria. The department’s management of the program prompted the American Federation of Teachers . Since Cardona started, the department has wiped out roughly $12.7 billion in college debt, including almost $2 billion for the public service program.

“Not only are we providing some loan forgiveness, but we’re fixing the systems that led to the problems that we have now,” he said, adding that he wants to continue to “make higher education more accessible to more students without having to be tethered in debt for the rest of their lives.”

Before Cardona was confirmed, there was speculation he’d be overshadowed by Biden’s White House advisers, who included two former high-level education officials from the Obama administration. More recently, Rodrigues quipped that , president of the National Education Association, likely has more pull with the administration than Cardona.

Conservative pundits have sized him up as Rick Hess, director of Education Policy Studies at the American Enterprise Institute, described him as “under-the-radar, except when he’s been waving the flag for partisan administration objectives.”

But those who support those objectives say Cardona has clout with the president. 

“I think with every passing day, he has more and more influence with the White House,” said American Federation of Teachers President Randi Weingarten, who first met Cardona when he was a teacher and now has a friendly competition with him over who has visited more states and schools over the past year. By late December, she’d hit 28 states; he’d made it to 25.

She said he advocated with the White House for changes to the loan forgiveness program and for putting teachers second in line to receive the first wave of COVID-19 vaccines, after health care workers.

Interestingly, given the coziness many of his critics assume Cardona enjoys with the unions, he has had trouble with the one representing employees in his own department. 

‘The huge political divide’

In early December, the Federal Labor Relations Authority found the department guilty of 14 violations of labor law — actions that date back to 2018 when the employee union’s collective bargaining rights. A of federal employees showed that morale within the department had declined far more than in any other agency. Those grievances have continued under Cardona, according to Cathie McQuiston, deputy general counsel with the American Federation of Government Employees.

The complaints involve inconsistent policies for working remotely, employee evaluation procedures and denying staff union representation when they have a dispute.

Under DeVos, the department was “paraded out as an example to other agencies of the kinds of things they should be doing in the Trump administration,” McQuiston said. “There has to be a political will to come in and say, ‘We’re not doing that anymore.’ At education, we struggle to get that commitment.”

According to a department spokesperson, efforts to resolve the complaints are ongoing and the agency is “committed to making sure it is a great place to work.” Both sides are scheduled to meet Thursday.

While addressing internal issues, Cardona was hit with a summer storm of public controversy over mask mandates and school equity initiatives. Superintendents were targeted with death threats, brawls broke out at school board meetings and school leaders tried to make sense of contradictory court rulings and mandates over masks.

“I wonder whether he anticipated the huge political divide over masks or no masks,” said Deborah Delisle, who served as assistant secretary of elementary and secondary education in the Obama administration and is now president and CEO of ALL4Ed, a nonprofit education policy organization. 

In August, Cardona departed from his usual cordial tone to take a against states banning local districts from mandating masks. 

“Don’t be the reason why schools are interrupted,” he said at a , indirectly challenging the governors of Florida and Texas.

But unless Republicans pressed him during Congressional hearings, he avoided the fray over critical race theory — a legal argument that racism lies at the core of U.S. institutions to intentionally advantage white people — and even to the controversial 1619 Project and the work of author Ibram X. Kendi from a civics grant program.

“We don’t get involved in curriculum issues,” he said during a June budget hearing, but stressed his support for culturally relevant teaching. “When students see themselves in the curriculum, they are more likely to be engaged.”

Some observers suggest he could have done more. 

Hess, at the American Enterprise Institute, said Cardona could “perhaps carve out room for the serious center” by defending “a progressive vision” but denouncing some of the examples that critics have found so , such as asking students to label themselves as “oppressed” or “oppressor.”

But Julia Martin, legislative director at Brustein and Manasevit, a law firm specializing in education, said there was no political upside for Cardona to wade any deeper into those waters.

“These issues, by their nature, are local issues,” she said. “There’s no way in many of these instances to come out and make a principled statement that doesn’t bother some people.”

The typically controversy-averse Cardona is a departure from the activist chiefs who have occupied the department since the No Child Left Behind era. Unlike many of his predecessors, Cardona doesn’t have a presidential mandate to implement bold reforms. 

“We’re still in a crisis, versus coming out of a crisis back in 2009,” said John Bailey, a senior fellow at AEI. That’s when Arne Duncan became secretary under President Obama, with a far-reaching mission to incentivize states to embrace controversial reforms such as overhauling teacher evaluations and adopting Common Core standards.

Even if Cardona had such a mandate, Bailey said, the pandemic leaves him in the position of trying to provide a “rapid response during an unfolding crisis that continues to play out.”

If the pandemic doesn’t continue to steal most of Cardona’s focus, he said he hopes to shift attention in 2022 toward issues a little closer to his heart: “teaching and learning.”

As someone who attended a technical high school in his hometown of Meriden, Cardona wants to see “better pathways” for students to two- and four-year schools and the workforce, especially with the jobs that will be created as a result of the $1.2 trillion federal infrastructure bill passed in November.

“There’s funding … unlike we’ve seen in the 20 years that I’ve been in education,” he said. “We have an opportunity here to really lift our field … and to give our students opportunities that they’ve never had.”

Lead Image: Education Secretary Miguel Cardona testified during a Sept. 30 Senate education committee hearing on school reopening. (Greg Nash / Getty Images)

Along with paying $700,000 in damages, the DOE agreed to changes that were designed to make it easier for students to file complaints and render the investigation process more transparent for families. The four plaintiffs, all of them students of color with disabilities, in 2019.

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“By coming forward more than two years ago, four young survivors have profoundly changed a school system for hundreds of thousands of current and future New York City students and families,” Joanne Smith, president and CEO of Girls for Gender Equity, said in a press release.

The New York City district is among multiple urban education systems to face charges that they mishandled or ignored students’ complaints of sexual assault — a practice groups representing victims argue has gone on for years. The settlement, announced Tuesday by the students’ attorneys at Legal Services NYC, landed as the Biden administration , the federal law prohibiting sex-based discrimination in public schools, and backtracks on Trump-era rules that bolstered the due-process rights of students accused of sexual misconduct.

Amy Leipziger, a senior staff attorney at Legal Services NYC, said the settlement provisions go far beyond those required by federal law. She compared the Trump-era regulations to the “Wild West,” adding that federal officials “could not have made it any less transparent if they tried,” leaving both advocates and educators to “interpret what it even meant.”

But at the local level, that federal ambiguity created “a lot of room for some creative advocacy,” she said. Specifically, she said federal rules are the floor, but don’t prohibit local officials from reaching higher.

“As local advocates and local officials, we can create broader protections and move it up to the ceiling,” she said. “I think that’s our obligation, and that’s something we feel really proud of.”

Among the changes, the city education department will create a process allowing parents to escalate complaints when they believe school officials failed to adequately address abuse allegations, provide support to student victims and update school transfer policies to make clear that students can ask to attend classes elsewhere following instances of harassment or assault. Officials also agreed to create a guide that informs educators about how trauma can affect learning and how special education teams should assess the impact of trauma among children with disabilities.

The lawsuit alleged that the city education department violated Title IX when officials repeatedly ignored assault and misconduct complaints by the students who were between the ages of 12 and 18 at the time of the alleged incidents. Two of the students were allegedly raped by classmates and two others said they were subjected to repeated verbal abuses, groped and sexually assaulted by their peers.

In , a 14-year-old girl with autism reported being raped in a school stairwell by a classmate who, she had earlier told school officials, had abused her off and on for years. In another, a sixth-grade girl with an intellectual disability reported being raped by a classmate in a shed near campus while walking home from school. After reporting a sexual assault, one teacher allegedly told a victim “Oh, he just likes you,” and in another incident, a school dean told a student victim that her perpetrator was just “a touch-feely kind of person.”

Education Department spokeswoman Katie O’Hanlon said the changes will “provide greater clarity to students, parents and staff” regarding the department’s obligations to prevent sexual misconduct and will improve its “effectiveness in preventing and addressing this conduct.”

“Every student deserves to feel safe, welcomed and affirmed in their school and there is zero tolerance for sexual and gender-based harassment of any kind at the DOE,” O’Hanlon said in a statement. “We have made it easier to report harassment and provided more robust trainings for staff so that the strongest safeguards are in place for all students, especially for our students with disabilities.”

For years, the New York City school system has student sexual abuse and misconduct cases. O’Hanlon said the department has hired a permanent citywide Title IX coordinator and seven borough-based coordinators and trained nearly 8,000 school staff members last year on dating violence, student-on-student sexual harassment and gender inclusivity.

The additional changes created under the latest court settlement are a step in the right direction, one plaintiff’s mother said. But the damage is already done.

“Due to that traumatic event, my child suffers every day,” the mother of “Jane Doe,” the student who reported being raped in the school stairwell, . Her daughter remains traumatized by the incident to this day, she said. “She can’t focus as she did before. She lost a lot of interest in a lot of things, she’s depressed, she has nightmares.”

Throughout the Trump administration, federal education officials forced dozens of school districts to revise their strategies to combat sexual assault after uncovering deficiencies. In 2019, Chicago Public Schools reached a sweeping agreement with federal investigators after officials found efforts to combat sexual misconduct in the nation’s third-largest school district ran counter to federal law. At the same time, the Trump administration released revised Title IX rules that bolstered the rights of students accused of sexual misconduct, and although the debate generally centers on how incidents are handled on college campuses, it brought profound changes to K-12 schools. Among them, the regulations narrowed the definition of sexual harassment and absolved educators from investigating most off-campus incidents.

President Joe Biden has vowed to scrap the Trump-era Title IX regulations, and the U.S. Department of Education has to release proposed changes by May 2022. For Leipziger, that timeline is far too long, especially as children return to schools for in-person learning during the pandemic. It’s up to local advocates, she said, to move forward knowing that federal rules don’t preclude school districts from adopting more expansive protections.

“I think our settlement has done that in a lot of ways,” she said. “Every city and every school district and every state is going to have to take it upon themselves to say, ‘We recognize that.’”

A group of girls from Berkeley High School will go before a federal judge in California this Thursday to argue that former Education Secretary Betsy DeVos left victims of sexual assault or harassment with fewer protections and shielded those accused of misconduct.

The state of Texas, led by Republican Gov. Greg Abbott, has tried to join the case as a defendant, arguing President Joe Biden’s justice department won’t provide a “robust defense” of the DeVos’s interpretation of the rule, known as Title IX, because it has “expressed open hostility to the provisions.”

As it happens, the San Francisco court is hearing the case just as Biden’s education department launches a weeklong public comment period on the future of Title IX — a key step in the administration’s promise to rewrite the controversial rule.

But the process this time is more than just a chance for Democrats to wipe away what DeVos said would be her . The U.S. Supreme Court’s 2020 protecting gay and transgender employees against discrimination — and the justice department’s that the opinion extends to schools — shows that the policy landscape has grown more complicated than it was even in 2017.

“The stakes have always been high,” said Liz King, the senior program director for education at The Leadership Conference on Civil and Human Rights. “This is a question of whether or not students will have access to an education free from discrimination.”

The White House is signalling the importance it attaches to the measure by the extensive time it is granting for public input and by its intention to bring back an expert hand who was instrumental in writing guidance that held colleges responsible for addressing on-campus sexual violence.

An ‘effort in public engagement’

While she’s not yet been confirmed, Catherine Lhamon is poised to return to her former position as the education department’s assistant secretary for civil rights. Lhamon has briefly served as deputy director for racial justice and equity on the White House Domestic Policy Council. Her nomination “shows how serious the Biden administration is taking civil rights,” said Shiwali Patel, senior counsel with the National Women’s Law Center.

The especially wants to hear this week about discrimination based on sexual orientation and gender identity, according to the notice.

Civil rights attorney Seth Galanter, with the National Center for Youth Law, called this week’s hearing “an extraordinary effort in public engagement.”

“As far as I know, there’s not been public hearings held around Title IX since the 1970s, when the department was first issuing regulations,” said Galanter, who is representing the Berkeley students. “It will be a great opportunity for people who don’t normally participate in the notice-and-comment process to have their voices heard directly by the leadership of the department.”

DeVos held one day of to hear from victims of sexual harassment and assault and from men’s rights groups that argued some students had been being falsely accused of misconduct.

On Zoom ‘with a harasser’

Before DeVos finalized the current rule, over 124,000 public comments were submitted, with many in opposition. Multiple lawsuits — including one involving and the District of Columbia — were filed in protest.

In the Berkeley students’ case, the complaint said victims are often assigned to the same classrooms as the students who sexually assaulted them off campus and that remote learning hasn’t alleviated the trauma that some victims experience.

“Even when learning takes place primarily online, as it does this school year due to COVID-19, victims are required to be in small video ‘breakout rooms’ with their harasser,” according to the complaint.

The justice department said Texas has no “claim or defense” in the Berkeley case. The state made the same argument in opposing the DeVos rule in Massachusetts, but a federal judge denied the motion. The state, however, successfully intervened in the multi-state case, now on hold as the administration works to rewrite the regulation.

Others don’t want to see the DeVos rule torn down because they say it recognizes the rights of those unfairly accused of sexual misconduct.

Reversing the rule could “once again force schools to deprive accused students and faculty of constitutionally guaranteed safeguards like the right to confront the evidence used against them,” said Caleb Kruckenberg, an attorney with the New Civil Liberties Alliance. He added that despite multiple federal courts upholding due process in campus disciplinary hearings, “the department seems poised to ignore those bedrock constitutional principles.”

As Kruckenberg noted, federal courts in recent years have shown greater deference toward the accused, agreeing that some colleges demonstrated against males when handling complaints. But Patel, whose organization is representing plaintiffs in the Massachusetts case, said institutions can protect due process rights while still providing fairness to victims.

“Sexual harassment is very pervasive in K-12 schools,” she said, “and rather than requiring schools to do more reporting, the DeVos changes swept sex harassment under the rug.”

released last year showed incidents of sexual violence in K-12 schools increased by more than half between the 2015-16 and 2017-18 school years, and the number of rapes or attempted rapes increased from almost 400 to nearly 800.

The DeVos rule limited what counts as sexual misconduct under Title IX. School officials, for example, are no longer obligated to investigate incidents that occur , but with virtual school, that distinction is less clear. In a recently issued , the department indicated that schools must investigate complaints of discrimination or harassment that occur during remote learning.

Disagreement over Title IX is one reason why Congress didn’t reauthorize the Higher Education Act while former Sen. Lamar Alexander chaired the education committee, leaving both the Trump and Biden administrations to implement the policy through regulation. That means if a Republican administration returns to the White House in four years, the pendulum could swing back the other way.

The back-and-forth over the policy probably means that no matter what happens, the issue is destined to continue to play out in court.

“We’ll have to wait and see what the Biden administration does,” said Kenneth Marcus, who led the Office for Civil Rights under DeVos. “But if they repeal the Trump Title IX regulations and replace it with something that looks more like the Obama rules, then we will certainly see this either struck down by the courts or reversed as soon as Republicans regain control.”

‘A different landscape’

The comment period is also taking place as debate continues to escalate over whether transgender girls should be allowed to compete against biological girls in high school and college sports — a question Title IX didn’t previously address.

“This is a different landscape than it was in 2016,” when President Donald Trump was elected, said Sasha Buckert, a senior attorney with Lambda Legal, a civil rights organization focusing on LGBTQ issues. “The court has weighed in.”

The day he took office, President Joe Biden issued an regarding the U.S. Supreme Court’s workplace discrimination ruling in , stating, “Children should be able to learn without worrying about whether they will be denied access to the restroom, locker room or school sports.”

But at least 20 states are considering or have already passed legislation banning students born biologically male from competing against females. And the issue has sparked heated exchanges between Republicans and Education Secretary Miguel Cardona the two times he’s appeared before Congress.

“We can create transgender leagues, I don’t mind,” Congressman Andy Harris of Maryland told Cardona during an appropriations on the federal budget in early May. He added that his daughter is an NCAA all-American athlete, who in no way “could compete against biological males,” and that he was disappointed in Cardona’s stance on the issue.

The NCAA isn’t considering separate leagues, but does testosterone suppression treatment for transgender women to compete in women’s sports at the college level. High school athletic associations began allowing trans girls to compete in events for girls over , and some experts argue there’s of trans women dominating women’s sports.

Cardona hasn’t veered from the firm position he took during his confirmation hearing. “Transgender students deserve every opportunity to participate in all school activities,” he told Harris.

Republicans have introduced the , which would only define sex under Title IX as those born male or female, not gender identity. But the House has already passed , which would extend civil rights protections in housing, education and employment to LGBTQ people and mostly clarifies what the courts have already decided, Buckert said.

If passed, the bill “would hopefully prevent all of these lawsuits and would prevent [the Supreme Court] from creating some kind of horrific carve-out in Title IX,” she said, adding she’s concerned Congress could say “discrimination against transgender people in general is against the law, but not in athletics.”

Betsy DeVos is the most-sued secretary in the 41-year history of the U.S. Department of Education.

In less than four years, DeVos and her department have been the target of more than 455 lawsuits — equivalent to being sued once every three days of her tenure, a 74 analysis has found.

By comparison, the review turned up 356 lawsuits against the department in the entire eight years Barack Obama was president.

The suits reflect the extent to which DeVos’s core agenda — including issues related to civil rights, special education and for-profit colleges — has played out in the courtroom.

“I’ve never seen or read about anything like this in my career,” said Phil Catanzano, an education attorney with the international law firm Holland and Knight. His knowledge comes firsthand: A veteran of the department’s Office for Civil Rights under Presidents George W. Bush and Obama, Catanzano has 18 active cases against the department.

When it comes to her education agenda, the record shows DeVos has racked up more losses than wins. Just last week, a federal judge in California rejected a proposed settlement in a suit brought against the department by student loan borrowers who claimed they were defrauded by predatory and often for-profit colleges. The case pointed to the secretary’s move to scale back Obama policies designed to protect those who were misled. In a scathing , the judge said her mass denials of loan forgiveness applications could cause students “irreparable harm.”

But there have been key exceptions. Also last week, a federal judge in Maryland a suit challenging revisions DeVos made to federal Title IX law designed to protect the rights of students accused of sexual misconduct.

The sheer volume of litigation is such that Jason Botel, a high-ranking administrator for DeVos until 2018, remembers that staff meetings frequently began with “a list of the latest lawsuits that had been filed against the department.”

The result is perhaps not surprising for a secretary who took office charged with erasing many aspects of Obama’s footprint in education, and one uniquely reviled by the nation’s powerful teachers unions and members of Washington’s advocacy class.

The analysis — which has been culled from court documents found on legal websites , and and converted into this searchable database — reflects the extreme divisiveness that has marked the Trump years. Many parties, from education organizations to states and school districts, say mistrust toward the department has grown far worse than it was under Obama and Bush.

One measure is the degree to which states have taken DeVos to court. Eight multistate lawsuits against the Trump administration have been related to education, compared with none during the Obama years, and 15 states have sued the department individually.

“That’s actually pretty significant, looking historically,” said Paul Nolette, a political science professor at Marquette University who tracks state litigation against the federal government.

Notably, the attorneys general behind those suits are Democrats, with Massachusetts, Pennsylvania, New York and California leading the way.

“Litigation is just becoming a more entrenched part of the whole policy process,” Nolette said. “States are just challenging everything.”

The department declined to answer questions from ����Ӱ�� about the funds and staff time consumed by litigation.

In a statement released after this story published online, department press secretary Angela Morabito wrote: “The radical left and education establishment have done everything they could think of to try and stop Secretary DeVos’ student-first agenda, which threatens their grip of power. They also haven’t successfully stopped the Department from putting students first, returning power to local educators and families, and shrinking Washington’s control over education in America.”

At a speech last week at Hillsdale College, a conservative Christian school in her home state of Michigan, DeVos offered a of her record of loosening federal control over education, particularly in the area for which she has become most closely identified: school choice.

“At the end of the day we want parents to have the freedom, the choice, and the funds to make the best decisions for their children,” she said. “The ‘Washington knows best’ crowd really loses their minds over that.”

That passion has landed DeVos in legal hot water. Most recently, three federal judges, including one appointed by President Donald Trump, shot down her plans to rewrite a federal funding formula so private schools could receive millions more in pandemic relief than the law allows.

“She’s done quite a bit to poke the bear. And when you poke the bear, it tends to get angry.” —Ben DeGrow, the director of education policy at the Mackinac Center for Public Policy

Supporters say they are not surprised at how much of her agenda has ended up in court, given her drive to take on powerful interest groups.

“She’s done quite a bit to poke the bear. And when you poke the bear, it tends to get angry,” said Ben DeGrow, director of education policy at the Mackinac Center for Public Policy, a free market-oriented, Michigan-based think tank that has received funding from the Dick and Betsy DeVos Foundation. Because of DeVos’s past support of candidates in Michigan, he added, “the teachers unions had their sights set on her from the beginning.”

Erasing the Obama footprint

In many ways, the hyperlitigation can be seen as a direct reaction to DeVos’s attempts to scale back the department’s expansive role under Obama. During those eight years, it linked millions in federal grants to states and districts adopting policies such as the Common Core standards and using student test scores to evaluate teacher performance. At the same time, it bypassed Congress and issued a host of guidance and regulations that expanded civil rights protections for minorities and students with disabilities.

When attorney Shiwali Patel joined the department’s civil rights office in early 2016, she felt she was doing “exciting and important work” to help students who are often marginalized.

She started right before the department directed schools to allow transgender students to use bathrooms that match their gender identity. Though DeVos reportedly opposed the move initially, the Trump administration the guidance a month after he took office in 2017.

For Patel, it was a sign of things to come.

“From there, it was pretty clear they were not in the business of protecting civil rights,” said Patel, who left the department about a year later. Now senior counsel and director of Justice for Student Survivors at the National Women’s Law Center, she’s one of at least 10 staff members working on litigation against DeVos. The center currently has a lawsuit against the department over the new Title IX regulations, which she said weaken protections for victims of sexual violence.

The suit is among at least 36 brought against DeVos or her administration stemming from her attempts to undo Obama-era actions, ����Ӱ�� found.

Neal McCluskey, director of the Center for Educational Freedom at the libertarian Cato Institute, said DeVos has “managed to stop a lot of the things that the Obama administration was doing that they didn’t like.”

One clear example was the 2018 removal of Obama-era intended to reduce racial disparities in suspensions and expulsions. that Black students are suspended at three times the rate of white students and that Black and Hispanic students make up over half of those involved in school-related arrests. But critics said the guidance hampered schools’ ability to effectively respond to crime, and DeVos cited it as another example of federal meddling.

The secretary also removed Obama’s 2014 policy, known as the gainful employment rule, requiring career training programs to prove their graduates would be able to find jobs and earn enough to pay back their student loans. Dropping allows for-profit colleges — to which DeVos has had — to get billions in student aid funding even if their graduates are unemployed and saddled with debt. DeVos, who has also appointed former officials from the to positions in the department, said removing the rule was an effort to treat all postsecondary programs, including for-profits, the same.

Cited for contempt

Student loans have proven to be a particularly nettlesome issue for DeVos.

Loan disputes have historically formed the bulk of lawsuits against the department, and it has been no different during her tenure. What is new, experts said, is the large number of students filing for loan forgiveness because their schools .

Last fall, DeVos earned the distinction of becoming the first education secretary to be of court and was ordered to pay a $100,000 fine for continuing to collect loan payments from former students of a defunct for-profit chain of colleges. And it took a to force the department to temporarily stop garnishing the wages of student loan borrowers — as required by the pandemic relief bill Congress passed in March.

DeVos also put off implementation of Obama-era regulations requiring online higher education programs to disclose whether they meet state licensing requirements. Scheduled to go into effect in July 2017, the regulation was delayed by DeVos for three years — until the National Education Association and the California Teachers Association in federal court last year.

“Courts are ruling against her all over the country,” said Aaron Ament, president and cofounder of the National Student Legal Defense Network, which has been involved in 12 higher education cases against DeVos and the department.

DeVos similarly postponed a rule meant to ensure that nonwhite students and those with disabilities are not overrepresented in special education or are unfairly punished in school. In 2016, 12 percent of Black students were referred for special education services, compared with 8.5 percent of white students.

That deferral marked the first time the Council of Parent Advocates and Attorneys, an advocacy and legal organization representing families of students with special needs, sued the department. Ultimately, a federal judge ordered the administration to implement the rule after an eight-month delay.

“We have never in our 22-year history sued an administration and we’ve done so now multiple times,” said CEO Denise Stile Marshall.The litigation is just the most visible symptom of her organization’s strained relationship with the department. Under previous secretaries, including Margaret Spellings, who led the agency in Bush’s second term, the advocacy community “felt more of a partnership with the department,” Marshall said. Staff members would share relevant documents in advance of their official release, for example.

Now, she added, “we have no idea what’s coming.”

‘They cut corners’

A key reason for the breakdown is that there is simply less staff at the department to do the sharing. In keeping with Trump’s frequent promise to it lost during his first year in office — 550, or roughly 13 percent of its workforce.

The came from the two units responsible for the lion’s share of litigation against DeVos: the Office for Civil Rights and the Office of Federal Student Aid.

“They want to get these quick political wins, but they’re being held up by the courts.” —Phil Catanzano, attorney

The result, said Ament of the National Student Legal Defense Network, is that the department is responding to lawsuits with a staff that “has been gutted.”

“I think they cut corners procedurally,” he said. “You’ll see consistently Trump and DeVos really failing to consider research and studies in a way that’s required.”

That’s what Judge Edward Davila of the Northern District of California wrote Sept. 3 when he DeVos’s request to dismiss a lawsuit over her rollback of the gainful employment rule.

In his opinion, he referred to a talk by DeVos, noting that “nowhere in this speech can the court locate an analysis” that explains why she eliminated the rule. Elsewhere, Davila, an Obama appointee, reprimanded the department for leaving out research to support its decision. “Of course, these references were not identified. In other places, the [department] cites … its own ‘analysis,’ but never clarifies what that analysis entails.”

Such thoughts are not confined to liberal members of the bench. In a , a three-judge panel for the conservative 11th Circuit Court of Appeals, led by George W. Bush appointee Chief Judge William H. Pryor Jr., ruled that a student loan servicer was misleading those in public service jobs into believing their loans were being forgiven. The company had said DeVos issued protected it from lawsuits alleging deceptive conduct. But the judges’ unanimous opinion deemed the secretary’s notice “not particularly thorough.”

In September, a Trump judicial appointee weighed in against DeVos, siding with plaintiffs over her controversial policy to distribute millions in federal pandemic relief funds to private schools. Judge Dabney Friedrich of the U.S. District Court for the District of Columbia became the third federal judge to rule against DeVos over the plan, saying the bill passed by Congress “left no gaps for the agency to fill and thus delegated no implicit authority to the department.”

“They want to get these quick political wins, but they’re being held up by the courts,” Catanzano said.

Jay Urwitz, a senior fellow at the American Council on Education, served as deputy general counsel in the department during the Obama administration. When someone sues the federal government, he explained, the plaintiff has to prove that the agency’s action was “arbitrary and capricious” — a very high bar.

It’s like facing an opponent who “starts from the 20-yard line or starts with a 6-0 lead in the seventh inning,” he said, adding that despite the advantage, DeVos’s department has still “managed to mess it up.”

Bypassing Congress

Experts say DeVos’s legal battles also reflect the large degree to which she has failed to push her agenda through Congress.

For example, Sen. Lamar Alexander of Tennessee, chairman of the education committee, wanted to address the gainful employment issue through a reauthorization of the Higher Education Act.

But that was almost two years ago. In the meantime, progress on the legislation has ground to a halt. Instead, DeVos withdrew the rule, and more than of the states sued her.

“The American system is such that if one area is not doing anything, it will move somewhere else,” Nolette said. But, as Obama learned as well, executive actions leave officials “legally vulnerable.”

DeVos’s attempt to get relief funds to private schools is another example of using executive rules to go places Congress chose not to. Early last year, the administration began pushing a $5 billion bill to give tax breaks in exchange for donations to private school scholarship programs for poor students. But it wasn’t until the recent negotiations over another pandemic relief bill that the majority of Republicans gave the proposal much attention.

Leslie Hiner, vice president of programs for EdChoice, a school choice advocacy organization, defended DeVos for trying to give flexibility during the pandemic to desperate parents trying “to make this work.”

“She has taken more slings and arrows than any of us will ever take in our lives,” she said.

Meanwhile, with the nation a week away from an election that could bring DeVos’s tenure to a close, some of the more explosive cases against her have yet to be heard. Three suits are still pending, for example, seeking to throw out her revisions to Title IX, an item the secretary clearly sees as part of her legacy.

At her recent , DeVos cited the change as an example of how the department has been “very methodical about our rule making and regulatory moves to do everything according to law.”

With roughly 125,000 public comments on the rule and overwhelming opposition to the changes, Catanzano speculated that DeVos likely knew the result would spark litigation. So, unlike its approach to rules on for-profit colleges or transgender students’ bathroom use, the department took its time, spending more than two years to craft the new regulation.

“A Biden administration would have a tough time pulling it down,” he said.

Lead Image: DeVos photo illustration (Getty Images / Meghan Gallagher / ����Ӱ��)