U.S. Secretary Betsy DeVos had another rough day in Congress this week when Senators grilled her on the details of her budget, which slashes over $9 billion from the education department and diverts $1.4 billion to privately operated schools such as charter schools and private schools.
Even Republican senators expressed strong reservations for cuts to Special Olympics, after-school programs, and a cluster of programs for supporting low-income and first-generation college students.
But the fireworks in the media focused primary on what DeVos said about enforcing federal government laws related to discrimination in schools.
Senators pointed out that her ideas for diverting public money to private institutions could result in federal dollars going to schools that discriminate against students on religion, their sexual orientation, or other characteristics.
DeVos repeatedly insisted, "Schools that receive federal funds must follow federal law. Period." But when senators tried pinning her down on whether federal money would go to schools that discriminate against LGBTQ students, she stated, "On areas where the law is unsettled, this department is not going to be issuing decrees."
But her remarks are cloaked in such ambiguity, it's hard to predict what DeVos will do to protect students from discrimination and where, and for whom, her department would enforce protections.
However, based on some of her personnel decisions, there is a great deal of cause for concern.
Already, much has been written about Candice Jackson, DeVos's deputy assistant secretary and acting head in the U.S. Department of Education’s Office for Civil Rights.
An in-depth profile by ProPublica revealed her "limited background in civil rights law" and her previous writings in which she "denounced feminism and race-based preferences."
A recent piece in the New York Times tried to rehabilitate Jackson's image, noting, "She is a sexual assault survivor, and has been married to her wife for more than a decade."
"The fact that Candace Jackson is gay does not qualify her to enforce civil rights if she does not believe in enforcement of civil rights," wrote education historian Diane Ravitch on her personal blog after reading the Times piece.
A more recent hire for the department's deputy assistant secretary for higher education programs is former Koch Foundation employee and director of the Individual Rights Defense Program Adam Kissel.
According to Inside Higher Ed, Kissel has accused universities of "violating the free speech rights of students and faculty. He's also criticized broader 'intolerance' on campuses" and "taken issue with the standard of proof used by colleges in the adjudication of recent sexual harassment and assault cases."
Kissel has been a high profile critic of the federal government's enforcement of Title IX, the federal gender-equity law, and how it's been applied to campus sexual violence. According to the Chronicle of Higher Education, Kissel has used op-eds and Twitter to declare, "American higher education is smothered in intolerance of diverse ideas," a phrase often used to allow hate speech on college campuses.
Richey was previously the state counsel for Oklahoma's state superintendent of education Janet Barresi. During Richey's tenure in 2014, Barresi got into hot water for creating a new assistant state superintendent position and hiring Richey's husband to fill it.
He resigned a year later after a new state superintendent was elected and took over. But the taint of cronyism may follow Richey in her new position with the federal government.
As state counsel, Richey's duties were to oversee and advise the state on legal matters, including, presumably, on enforcement of anti-discrimination laws. Yet under her watch, Oklahoma had a deplorable track record in its treatment of students with disabilities.
A 2015 examination by Oklahoma Watch found, "Oklahoma ranked first in the nation in rates of special education students being expelled from schools. It ranked fourth in corporal punishment of such students, 19th in in-school suspensions, 28th in out-of-school suspensions and 20th in arrests."
According to state data, students with disabilities "were more likely than their peers to be suspended, expelled, arrested, handcuffed or paddled. In dozens of schools, special education students are anywhere from two to 10 times more likely to be disciplined, the data show. At some schools, every special education student has been physically disciplined, suspended or expelled."
How this track record qualifies Richey to take over the duties of overseeing the nation's special education and rehabilitative services is anyone's guess.
Does it really matter who DeVos hires?
In a nuanced discussion about the issues of discrimination that arose during the DeVos senate hearing, experts on the subject said there is a lot of "unsettled law" on the matter, especially when privately operated schools accept federal money. According to Education Week.,"No state lays out protections for all marginalized groups of students, whether based on their religion, race, ethnicity, disability, sex, or sexual orientation."
Potential discrimination against students with disabilities is a particularly tricky subject. Many states have set up their voucher programs in a way that requires parents to "waive certain disability rights for their children under federal education law in order to participate in a special-education-specific voucher program."
The experts explained there are "plenty of questions on what solid protections exist for different groups of students between overlapping federal and state laws."
The article quotes a former civil rights official at the U.S. Department of Education under President Bill Clinton who emphasizes that, "The design and the operation and the effects of any federal program that may be proposed will, therefore, likely matter … and matter a lot."
In other words, federal programs affecting students' rights, and the enforcement of civil rights laws in schools, depend a lot on who's in charge of them.