First 100 Days

A Dangerous Lesson

School Choice Without Standards

The first 100 days of a first-term president’s tenure in office serve as a barometer to determine how much the executive branch is likely to accomplish. Recent studies on this “honeymoon” period of the presidency show that the first 100 days tends to be the time of greatest productivity and least opposition. President Franklin Delano Roosevelt set an unprecedented record, working to pass seventy-six bills into law during his first 100 days in office. Contrast this with President Barack Obama who worked with Congress to pass eleven new laws in his first 100 days. This comparatively meager number was a just a slight improvement over President George W. Bush’s record. He signed only seven new laws in his first 100 days.

In other words, times have changed. Modern American presidents increasingly resort to executive orders, cabinet and judicial appointments, coalition building, post-campaign campaigns, and, now, even tweets to execute meaningful change. Accordingly, if we were to weigh President Trump’s effectiveness in the realm of education reform, we would not look to the laws passed since he has been in office—there are none. Rather, we would look to his sole and most visible action in the realm of education: his appointment of Betsy DeVos as Secretary of Education and how this appointment sheds light on Trump’s response to what he has called a failing educational system.

President Trump’s lone campaign promise regarding education was simple: to provide school choice for students and families. But Trump’s promises were vague and lacked details. What is meant by choice exactly? How would school choice be put into effect? Would this be the centerpiece of a yet-to-be-unveiled major national program to follow Bush’s No Child Left Behind Act (“NCLB”) or Obama’s Every Student Succeeds Act (“ESSA”)? In addition to lacking definition, Trump’s promises regarding education lacked substance and justification. Why choice? Is it motivated by a pedagogical goal or approach to education? Is it an end or a means to an end?

Without a greater understanding of the administration’s view of how schools are failing and how choice will fix it, it is nearly impossible to assess the success of the Trump education policy, even on its own terms. Consequently, we should examine President Trump’s first 100 days in seeking answers to these two questions — 1) how will Trump actualize greater choice, and 2) what does the administration expect to gain qualitatively by doing so? DeVos’ confirmation provides some insight into what we can expect.

Betsy DeVos’ confirmation was controversial and bruising. Her critics noted that prior to her appointment, DeVos had never taught in a public school, had never run a public school, had not attended a public school, and had not sent any of her children to public school. Indeed, her primary qualification for the position is her many years of advocacy and lobbying for charter schools in Michigan and, later, for voucher programs and tax-credit initiatives nationally. The DeVos nomination, however, and Trump’s willingness to stand by her despite a heated and controversial confirmation process, is quite instructive of what we might or might not expect from President Trump. When it comes to education, she is a single-issue candidate.  President Trump will be a single-issue president. That issue is choice.

Will DeVos advocate zealously for choice? Undoubtedly. The appointment of DeVos’s reaffirms Trump’s plans to make good on his promise for school choice. But, what should be worrisome to those who care about improving education and supporting students in troubled schools is that these first 100 days suggest that neither Trump nor DeVos have any preconceived notions of what choices are good ones in education. Here is what we know so far.

I. The Right to Choose Trumps the Right to a Quality Education

Since her nomination, DeVos has given dozens of speeches. She engages in the kind of “rights-talk” that those on the political right evade. DeVos describes the ability to choose one’s education as “a fundamental right too long denied to too many kids.” Interestingly, neither she nor the Supreme Court have stated that a quality education is a fundamental substantive right. DeVos—and the Michigan choice system to helped build—has been soundly criticized on grounds that she harbors a view of an education right devoid of fundamentals like literacy. That is not to say that Secretary DeVos and the Trump administration do not value quality, but it does suggest that DeVos and her boss have few ideas about what it looks like. And they only see one way to get there: choice.

II. Any (Nongovernment) Choice Is a Good Choice

DeVos and President Trump are unified in their belief that nearly every form of educational option (save perhaps those they see as being government sponsored, like the Common Core—which in fact is approved at the state or local level) are worthy of support. The Trump administration approaches school choice with a devout agnosticism. Trump wants children and their families to be free to choose between vouchers, charter schools, homeschooling, magnet schools, religious schools, independent schools, virtual learning, distance learning, education accounts, homeschooling, or any other educational model. No limitations are placed on evidence-based knowledge about “what works” in education.

Choices in education for choices sake, without regard to the outcome, is a luxury for students whose educational outcome will define their lives. The secretary’s response is disheartening: “I am in favor of increased choice, but I’m not in favor of any one form of choice over another.” She further stated that “similarly, there is no one delivery mechanism of education choice: Open enrollment, tax credits, home schools, magnets, chargers, virtual schools, education savings accounts and choices not yet developed all have their place, but no single one of these is always the right delivery method for each child.” Conspicuously left off this list are traditional public schools. Choice, that is, has been equated with anti-government, anti-traditional education, and, in this instance, anti-public school. Unsurprisingly, Trump makes public-school supporters nervous.

III. Radically Nontraditional

Why choice? Does it guarantee a quality education or even make it more likely? The answer to this would have to rely on standards, benchmarks, and evidence. Viewed in the most favorable light possible, DeVos has a philosophical approach to education that might be described as child-centered and radically progressive. I use progressivism here as it is used in shop talk by educators—to denote support for the idea that the child’s experiences as a learner are paramount, even above content, and that no one size can fit all learners. This idea, quite radical at its most extreme, favors nontraditional school models over traditional ones.

Why not favor evidence-based models over those that have proven to fail? As one glaring example, recent studies on vouchers reveal that they do not work in most cases, and vouchers actually hurt student achievement in other cases. This new data, much of it unearthed by conservative groups in favor of vouchers, has not led to any reconsideration or modification of the Trump position on choice. The reality is that some charter schools work and others do not. Some public schools are excellent while others need to change. While DeVos argues that her approach is child-centric, any approach that is blind to evidence is a dangerous approach and a poor example for the nation’s pupils. The secretary and president who appointed her should recall what every parent who cares about their child already knows: freedom of choice without guidance or standards can lead to dangerous consequences.

IV. Encouraging 1,000 Flowers to Bloom

Consider that the Department of Education helps to oversee the schooling of over 50 million American children. The idea that there is a school for every child is a romantic one consistent with the decentralized, ground-up approach of letting 1,000 flowers bloom.1

How does Trump’s Department of Education plan to execute its promise for choice? How have DeVos and the department articulated a vision for rewarding and encouraging 1,000 flowers to bloom? DeVos regularly makes it a point to celebrate states that support what she calls “out-of-the-box” approaches to education. Although the Trump administration wants to re-empower states to design their own “unique” educational systems and shrink the role of the federal government, it plans to remain involved through ESSA. The Department of Education plans take an active role in overseeing that choice and access are part of every state’s plans.

V. Education and the “America First” Budget

It is in this context that we should try to understand Trump’s lone proposal regarding education. The administration’s “America First” budget proposes to shrink the Department of Education. The proposed budget cuts funding for the Department of Education by $9.2 billion. More than a third of those cuts will come in the form of $2.4 billion in grants for teachers and $1.2 billion for summer and afterschool programs. Additional cuts are targeted at low-income programs that the administration has deemed ineffective or that “do not serve national needs.” The principal component of the new education plan is a $1.4 billion program to expand vouchers in public and private schools. Most of the budget’s voucher funds will go to students who choose private schools.

In theory “choice” sounds unobjectionable. It’s difficult to be against customization when children have complex and varying needs. In practice, however, the Trump administration’s agenda sounds more like privatization than customization. At a minimum, that is what the first 100 days suggest.

* Associate Dean for Graduate and International Programs, University of Illinois College of Law. She oversees the College’s JSD, LLM, and MSL programs. As the Nancy Snowden Research Scholar in Law, her scholarship focuses on criminal law, sentencing, education, and children’s law. She has been published in the Stanford Law Review, the New York University Law Review, the California Law Review, and the Journal of Criminal Law and Criminology.

1 It might be helpful to note at this point that scientists have identified only approximately 400,000 species of flowers.