Betsy DeVos can change education in America without doing a thing

Education secretary nominee Betsy DeVos narrowly squeaked through the Senate on Monday, winning confirmation by a vote of 51 to 50 after Vice President Mike Pence weighed in to break the tie.

DeVos is the most controversial education secretary ever. She was confirmed with fewer votes than any Cabinet secretary in history. If Democrats hadn’t abolished the filibuster on executive branch nominees in 2013, DeVos’s opposition would have relegated her to the heap of Cabinet might-have-beens.

But activists have other fights teed up: President Donald Trump has other Cabinet secretaries to confirm, including Scott Pruitt, who downplays manmade climate change and wants to roll back environmental regulations, to lead the Environmental Protection Agency. Trump has promised to repeal Dodd-Frank, the financial law passed in response to the most recent financial crisis. The battle over his refugee and visa ban is still raging in federal court.

Meanwhile, the changes DeVos will have power to make immediately as education secretary are likely to fly under the radar. Once the spotlight moves along to the next high-profile battle over Trump’s administration, she can change education in America merely by doing less than her predecessors.

Betsy DeVos couldn’t have been confirmed eight years ago

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DeVos was only confirmed at all because Democrats changed the Senate rules in 2013, requiring just 51 votes to confirm executive branch nominees and reducing the incentive to pick candidates who would get broad, bipartisan support.

DeVos was not the candidate Trump would have picked if bipartisan consensus were a goal. She has no experience running a public school system or state university or shaping statewide education policy. Her signature issue, school vouchers, isn’t particularly popular, and even some conservatives from rural states are skeptical of it because rural areas typically have few choices besides the local public school. She was guaranteed well-funded, well-organized opposition from teachers unions, who see vouchers as siphoning money away from public schools and into private hands.

The political environment, too, made bipartisan support unlikely: Democratic voters horrified by Trump were pushing their elected representatives to oppose his Cabinet nominees. Education in general has become more divisive. While most secretaries of education have been confirmed by broad, bipartisan margins, John King, whom President Obama appointed to replace longtime Sec. Arne Duncan, was confirmed in March 2016 with just five Republicans voting in his favor.

Still, before her congressional hearing, DeVos seemed set for confirmation. Then the hearing itself turned out to be a catastrophe. DeVos argued that policies on whether to allow guns in schools should be determined at the state and local level because a rural school in Wyoming might need a gun “to protect from potential grizzlies.” She appeared unfamiliar with the Individuals With Disabilities Education Act, the bedrock federal law guaranteeing a public education to students with disabilities, and with a common education policy debate about measuring student achievement.

Trump had other controversial nominees: Sen. Jeff Sessions has drawn liberals’ fire on civil rights, and Pruitt has raised alarms among climate activists. Tom Price, who would oversee the promised dismantling of Obamacare as health and human services secretary, traded health care stocks while sitting on a committee making health policy. But none of their hearings yielded such damaging sound bites.

DeVos’s hearing, meanwhile, galvanized opposition. She was lampooned on Saturday Night Live. A clip of Sen. Elizabeth Warren denouncing DeVos was viewed more than 16 million times on Facebook. Newly formed activist groups like Daily Action and 5 Calls, which give directions to Trump’s opponents, directed hundreds of thousands of calls to Senate switchboards:

In the end, it wasn’t enough for DeVos’s opponents to prevail. But the confirmation process fired up thousands of activists who had never been engaged on education before.

“We have won hundreds and hundreds of thousands of new activists,” said Lily Eskelsen García, the president of the National Education Association, one of the two major teachers unions. “And not just teachers, not just NEA members. We’re talking about a lot of parents. The disability rights community is up in arms.”

The secret of DeVos’s confirmation: She won’t have a lot of power

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Two-thirds of Americans tell pollsters that education is a top issue for them. That might be true, but if it is, it doesn’t show up in the voting booth for national elections, which rarely turn on education policy.

But for activists, DeVos’s nomination proved the perfect issue to personalize the impact Trump would have on America — even for white, upper-middle-class people who are unlikely to suffer from deportations or rollbacks of voting rights. The vast majority of Americans send their kids to public schools and attended public schools themselves. While they might be lukewarm on the quality of education nationally, polls find, they tend to think their local schools are pretty good.

“Education’s very personal for people,” Laura Moser, the creator of Daily Action, a phone tree for anti-Trump activists, told me last week. “We know what it means never to have set foot into a public school and to take money from public schools.”

What often got lost in the debate was that DeVos will have much less power than many other Cabinet leaders, and less than her predecessors as education secretary. After Duncan spent Obama’s first years in office urging states to make policy changes beloved by education reformers — including Common Core and new ways of evaluating teachers — Congress put sharp limits on the education secretary’s power.

The Every Student Succeeds Act, the law that replaced No Child Left Behind, bars the education secretary from interfering with states’ academic standards. So even if DeVos, who said after she was nominated that she opposed Common Core, wanted to get rid of the shared reading and math expectations, she’d have no power to do so.

DeVos would be more powerful if she gets to implement Trump’s major education campaign promise: turning $20 billion of education spending into a federal voucher program, and encouraging states to kick in enough funding to make the voucher big enough to pay private school tuition.

But Congress just passed a major K-12 education law in December 2015. The mechanics of Trump’s plans were sketchy. And Republican senators from rural areas suggested their states wouldn’t go along: Susan Collins (R-ME), Lisa Murkowski (R-AK), and Deb Fischer (R-NE) asked DeVos to commit, in writing, to not forcing a federal voucher program onto states that don’t want one.

DeVos can make smaller changes. But will anyone be watching?

DeVos can’t create a voucher system unilaterally. But with smaller, less dramatic changes — many requiring no visible action at all — she can still significantly alter the landscape of K-12 and higher education in the US.

DeVos will be responsible for approving states’ plans to hold schools accountable for students’ test scores, new frameworks that will replace the requirements of No Child Left Behind. (The Obama administration wrote regulations to guide these plans, but the Trump administration has indicated it might rewrite them.) DeVos could choose to rubber-stamp every state’s plan, letting states give schools top scores even if some groups of disadvantaged students aren’t performing well. Or she could hold out for higher, more stringent standards.

She could also determine how much energy the Office for Civil Rights, which investigates complaints that schools mishandle sexual assault as well as other allegations that schools have mishandled discrimination, puts into its investigations. She could direct the Education Department to reverse guidance from 2011 that pushed colleges to use a lower standard of proof when finding students responsible for sexual assault, helping kick off a wave of activism around the issue.

She could reverse the Obama administration’s crackdown on for-profit colleges, including ending a new regulation that gets students out of their loans if they can prove their college defrauded them. If Congress blocks the main regulation governing for-profit colleges, the Obama administration’s “gainful employment” rule, it will be up to DeVos to replace it.

The progressive activists who opposed DeVos would largely dislike these kinds of changes. But, crucially, those moves can be done without any splashy new policies or bill introductions. DeVos can change the department’s course simply by doing less.

The question is whether the hundreds of thousands of people energized to oppose DeVos’s nomination will choose to emphasize these issues in the future. Many of the groups springing up to resist Trump focus on calling elected representatives. There will be other Cabinet nominees, other bills pending, and other high-profile fights.

Ezra Levin, who co-founded Indivisible, an effort to resist Trump, emphasizes that calling representatives is crucial for activists — and that congressional staffers have a short attention span, so fights should be focused on the issue of the day.

“What is important is what is happening today or this week,” Levin, a former staffer for Sen. Dianne Feinstein, said. “That’s what we should be focusing on, and that’s not always going to be education. Or a woman’s right to choose. Or the environment.” The key is for activists to stick together rather than fracturing, he said: “If you only stand up for education, you’ll lose when that comes up.”

But Eskelsen García — who has an incentive to mobilize around education more than other issues — isn’t so sure. Opposition to DeVos extends beyond people who are natural activists at heart, she said. “What we have captured are people who might never have written their senator before,” she said. “They wrote this time because this time, it’s personal. This time, it’s about children.”