Betsy DeVos Survived a Historic Confirmation Fight. What’s Next for Higher Ed?

Chronicle photo by Julia Schmalz

Betsy DeVos at her confirmation hearing last month. She has said little about higher education, leading many observers to assume that most of the action on higher education under President Trump will come from Congress.

Just hours after Vice President Mike Pence cast a tie-breaking vote in the U.S. Senate to confirm Betsy DeVos as the next secretary of education, Republicans in the other chamber of Congress took the first step toward dismantling her predecessors’ higher-education legacy.

In the House of Representatives, Republicans voted to scrap a rule, finalized in October, which aimed to raise the bar on teacher-preparation programs, holding them more directly accountable for student outcomes.

The House and Senate actions — coupled with last week’s announcement that Jerry L. Falwell Jr., president of Liberty University, would head up an Education Department task force on reducing federal "overreach" — were a signal that Republicans, both in Congress and the new administration, plan to make good on President Trump’s campaign promise to deregulate higher education.

"We look forward to working with Secretary DeVos and the entire Trump administration to address harmful regulations issued under the Obama administration," said a spokesman for the House education committee.

Mr. Pence’s vote to break a 50-to-50 tie was the first time a vice president had ever ended a standoff on a cabinet nomination. It capped an unusually heated confirmation process that saw Ms. DeVos, a billionaire philanthropist and longtime school-choice advocate, become the subject of internet memes and get mocked in The Onion and a Saturday Night Live sketch.

Ms. DeVos hasn’t said much about her plans for higher education, and her silence has led many observers to assume that most of the action on higher education under President Trump will come from Congress.

But after the fight over her nomination, some policy experts are asking how much lawmakers will really be able to get done on higher ed, given their competing priorities — a Supreme Court nominee and Mr. Trump’s tax-cut plan among them — and the hyper­partisanship that has infected the normally cordial Senate education committee.

At last week’s committee vote on Ms. DeVos, the top Democrat, Sen. Patty Murray, of Washington, said Republicans’ refusal to delay the vote and allow additional questioning by Democrats constituted a "massive break" with tradition that would "have a dramatic impact on our ability to work in good faith going forward." Republicans, meanwhile, accused Democrats of "character assassination" for their attacks on Ms. DeVos.

In a normal year, lawmakers would put disagreements over a nominee behind them, saying "this is in the rear-view mirror," said Frederick M. Hess, an education scholar at the American Enterprise Institute. But there has never been an Education Department nominee as divisive as Ms. DeVos, or a nomination fight so bitter.

"She’s been called an enemy of public education and depicted as an evil force," said Mr. Hess. "That’s not something you can walk back over beers."

Emphasis on Deregulation

For his part, Mr. Trump hasn’t publicly said which of President Obama’s higher-education rules he plans to target first, only that he would "take steps to drive down college costs by reducing the unnecessary costs of compliance with federal regulations." And Ms. DeVos, in a series of responses to questions from Senate Democrats, declined to say whether she’d uphold a slate of Obama-era rules that cracked down on for-profit colleges and expanded protections for student borrowers.

But behind the scenes, Republicans are crafting a plan to overturn most, if not all, of the Obama Education Department’s rules on higher-education — from teacher preparation to the even-more controversial gainful-employment rule, which cuts off federal student aid to programs whose graduates have high debt-to-earnings ratios. Many advocates have also raised fears that the Trump administration might scale back enforcement of Title IX, the gender-equity law that the Obama administration cited in its guidance to colleges on campus sexual assault.

In both those respects, a DeVos-led Education Department could become known less for what it decides to do on higher education, than for what it decides to undo — or not do, in the case of pursuing campus sexual-assault investigations.

Indeed, the conventional wisdom leading up to Ms. DeVos’s confirmation vote has been that most of the movement on higher education will come from Congress, where a reauthorization of the Higher Education Act is pending. Ms. DeVos has so far shown little interest in remaking higher education; President Trump has said little on the subject, beyond his campaign attacks on "administrative bloat," "huge endowments," and political correctness — not to mention his recent Twitter threat to withhold federal funds from the University of California at Berkeley.

"Ms. DeVos is really a K-12 person," said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. "I think we’re going to be watching the Falwell commission as closely as we’re going to be watching the secretary of education."

Mr. Lake predicted that Congress will "flex its muscles" on higher ed more than it has during the past two administrations, which "had a heavier dose of leadership from the top."

Two areas where lawmakers might be able to reach agreement concern student aid and loan repayment. Both parties want to restore year-round Pell Grants, and nearly everyone agrees that the student-loan repayment plans need to be streamlined. President Trump’s only really substantive higher ed plan to date is to alter Mr. Obama’s income-based-repayment plan.

But even those modest proposals could be difficult to enact if Trump’s planned tax cut forces appropriators to cut spending on education.

Mr. Hess, of the American Enterprise Institute, said there are other ways Mr. Trump could leave his imprint on higher ed, if he follows Mr. Obama’s lead and governs with the pen. As president, Mr. Obama became famous for using executive orders and regulations to change higher-education policy and to compel colleges to act in ways he wanted them to. He sought to use federal funds as leverage, offering carrots to colleges and states that embraced his goals, and sticks to those that hindered them.

Mr. Trump, who has already shown a fondness for executive orders and an inclination to punish disobedient schools, could do the same — in different areas. He probably couldn’t strip funding from a college for canceling a controversial speaker, as he threatened to do with Berkeley, but he could direct federal agencies to condition their grants on colleges’ complying with a free speech code. And he could, as Obama did with the gainful-employment rule, find some dusty corner of federal statute, and give it fresh meaning, Mr. Hess said.

"If DeVos isn’t worried about maintaining cordial relations with committee Democrats and she hires some aggressive lawyers, we might be surprised at how some of the existing language can be interpreted," he said.

Potential Consequences

For the most part, colleges wouldn’t mourn the death of the Obama regulations, which many saw as burdensome, at best. The teacher-prep rule, which looks like it will be the first to go, generated broad opposition from teachers’ unions and college lobbyists, who warned that it would punish programs that send students to high-need schools, where test scores tend to be lower and teacher turnover higher.

Defenders of Mr. Obama’s legacy, meanwhile, are holding out hope that President Trump can be persuaded that ditching his predecessor’s consumer-protection rules isn’t in his own best interest.

"The Republicans are no longer the loyal opposition, they’re in governing mode," said Robert M. Shireman, who was one of the chief architects of those rules in his former role as a deputy under secretary of education. "They need to think about the consequences of the actions they will own."

Mr. Shireman and his colleagues at the Century Foundation, where he is now a senior fellow, are producing a series of articles on past scandals and crackdowns involving for-profit colleges, from the GI Bill to gainful employment. They hope to remind Republicans of the risks of deregulating for-profits, and to show that the sector’s problems weren’t invented by Mr. Obama.

"What I fear is a blindness about the potential hazards of investor-controlled schools," he said.

Advocates for sexual-assault survivors are worried, too. They fear that Ms. DeVos’s comment, during her confirmation hearing, that it would be "premature" for her to commit to upholding the past administration’s guidance on Title IX, means that the Trump administration won’t enforce the law as vigorously as Obama did.

"We’re deeply disappointed to see a candidate who thinks a chance of being attacked by a grizzly requires guns in schools, but a one-in-four chance of being a victim of sexual assault doesn’t warrant a strong federal response," said Mahroh Jahangiri, executive director of Know Your IX.

Withdrawing the Title IX guidance "would pose a huge threat to schools and students alike," she said.

Still, Ms. Jahangiri said she’s confident that the survivor-driven movement has grown strong enough in the past eight years to stop colleges from "taking a step back" on sexual assault.

"I am confident in people’s ability to protect their rights with or without an ally in the Department of Education," she said.

Predicting what else Ms. DeVos might do as secretary of education requires extrapolating from her views on primary and secondary education, and her market orientation toward that sector, said Donald E. Heller, who is provost and vice president for academic affairs at the University of San Francisco. Looking through that lens, he expects her to push for a bank-based student-loan system, or at least an alternative to the federal direct-lending program. Congress abolished the bank-based system during Mr. Obama’s first term, a victory he fought hard for, citing wasteful taxpayer subsidies.

But beyond restoring such a program, Mr. Heller isn’t expecting much from Ms. DeVos.

"I think she will put most of her energy into K-12," he said. "And for those of us in higher ed, that may not be such a bad thing, to be left alone for awhile."

Kelly Field is a senior reporter covering federal higher-education policy. Contact her at kelly.field@chronicle.com. Or follow her on Twitter @kfieldCHE.