Who Does DeVos’s Department Really Represent?

Six tumultuous months into the Trump administration, at least one constant remains: On higher education, Betsy DeVos is still seen as a black box.

When Ms. DeVos was narrowly confirmed as education secretary in February, she was known chiefly for her greatest passion: elementary- and secondary-school choice, an issue she framed as an act of advocacy for students and parents as consumers. How, higher-education observers asked, would that vision play out in their sector?

Many are still asking that question. Under Ms. DeVos, the department has taken action on a few key policies: It has “paused” two Obama-era rules designed to hold colleges accountable for bad behavior and unimpressive results, leaving those rules to be renegotiated. It has narrowed the scope of the department’s investigations into campus sexual assaults. And it will move to a single loan servicer.

But those moves are chiefly rollbacks of more-aggressive policies put in place by the Obama-era Education Department, not indicators of where the department wants to make its own policy pushes. Meanwhile, the current department’s messaging tends to be high-level and broad — when it comes at all. Ms. DeVos has spoken little about higher education in general, shunning public press conferences and offering brief statements to explain the regulatory changes. To date, those statements have alluded only to the complexities of the current system and the need to balance the interests of institutions, students, and taxpayers.

That has left experts on both the right and the left searching for a coherent message on how the federal government intends to tackle broader challenges in the higher-education sector.

Mary Clare Amselem, a higher-education expert at the Heritage Foundation, a Washington think tank, calls the proposed regulatory changes positive first steps to lowering barriers to innovation and the costs of regulation.

But she says that she, “along with a lot of other experts, are trying to piece together a vision” from Ms. DeVos’s rhetoric. “Her policy expertise is K-12, so I think this is to be expected,” says Ms. Amselem.

The Obama administration, for better or worse, left colleges with few questions about who it viewed as its constituency. Through its attempts to act as a watchdog of for-profit institutions, to create a consumer-facing college rating system, and to press colleges on their handling of sexual-assault cases, it sent a clear message: We see ourselves as fighting for students.

Now it’s clear that’s not the agency’s sole priority. Department officials say they do, in fact, have the best interests of students in mind. But they also speak about the importance of ensuring fairness across the board, including for colleges and universities.

Some colleges and industry groups, many of which were disappointed by the Obama-era Education Department’s activist approach, have welcomed that shift. Critics, on the other hand, say that achieving fairness through regulatory rollbacks raises questions about whether the agency intends to move to the sidelines, possibly putting institutions and industry ahead of students.

Obama-era veterans like Spiros Protopsaltis, now a visiting associate professor at George Mason University, argue that the Education Department’s early actions and announcements run against its very mission. “It’s difficult for me to see how you can be in the federal government,” said Mr. Protopsaltis, “and not be someone who’s fighting for students and taxpayers.”

Oversight Undone

Three major priorities drive decision making at the department, according to Elizabeth Hill, a spokeswoman: serving students and improving access to “multiple pathways to success after high school,” cutting red tape for colleges, and “protecting taxpayers.”

Beyond those broad propositions, however, the department has not outlined in detail how it plans to address a multitude of challenges facing the nation’s higher-education system. Among those key issues: student debt, degree completion, and work-force preparation.

Instead, the department’s focus has been undoing oversight enacted by the Obama administration, including guidance on how colleges should investigate and punish sexual assault and protect the rights of transgender students. Ms. DeVos announced this year that the department was rescinding the Obama administration’s guidance on allowing transgender students to use bathrooms that correspond with their gender identity.

Since 2011, the Office for Civil Rights has already opened about 400 investigations of colleges for possible violations of Title IX, the federal law meant to protect gender equity in education, in their handling of assault cases. Under the new leadership of Candice E. Jackson, the acting assistant secretary, that office has begun to limit the scope of its inquiries, no longer automatically looking at how a college under investigation has handled past complaints of sexual assault.

In explaining those changes to a conference of campus lawyers, Ms. Jackson said they were meant to speed an often-involved process and bring more cases to resolution. (Of the 403 cases that have been opened, according to The Chronicle’s Title IX Tracker, only 64 have been resolved. Many of the investigations have lasted several years.) At the conference, held in June in Chicago, campus legal officials — many of whom have long criticized the civil-rights office’s aggressive approach — welcomed the changes.

But Ms. Jackson went a step further at the meeting, offering her view that the office and its investigators are not advocates for either students or the institutions. “The field staff embrace their role as neutral and impartial,” she told the lawyers.

That is a departure from the rhetoric of Catherine E. Lhamon, one leader of the civil-rights office during the Obama administration, who described herself as a “chief enforcer” responsible for pushing colleges to “radically change” the message they sent about sexual assault.

Alexandra Brodsky, a fellow with the National Women’s Law Center, said Ms. Jackson’s position is inconsistent with the office’s fundamental role. “OCR’s mission is to ensure students’ civil rights are respected,” she said in an email. “If they’re not advocating for students, they’re not doing their job.”

But Jim Newberry, a lawyer who works on higher-education issues, said the civil-rights office can uphold the law without taking sides. “If somebody violates a statute or rule, they ought to be punished,” he said, “but OCR doesn’t have to be involved in conducting a witch hunt if a violation didn’t occur.”

The shift away from student advocacy has moved beyond issues of inclusion to financial ones. In June the department announced that it would delay and rework the controversial gainful-employment and borrower-defense-to-repayment rules formulated by the Obama administration to hold colleges accountable. The gainful-employment rule was meant to punish colleges whose graduates earned too little compared with the amount of student debt they took on, and borrower defense gave students a simplified process to have their student loans forgiven if they were determined to have been defrauded by their colleges. The department said it did so to ensure that colleges “have clear, fair and balanced rules to follow.”

On Monday, during a public hearing at the department’s headquarters, advocates for students and borrowers pushed back against the decision to revisit the regulations. Randi Weingarten, president of the American Federation of Teachers, invoked the notion of a department dedicated to advocating for students: “The department should protect students and taxpayers by rigorously enforcing the current borrower-defense and gainful-employment rules,” she said.

But in a common theme for the DeVos Education Department, representatives from college groups — including for-profit institutions, historically black colleges, and community colleges — were more sanguine than advocacy groups. The groups cheered the department’s decision to press pause on the “burdensome” regulations.

They have a powerful ally in the Senate: Lamar Alexander, Republican of Tennessee and chair of the education committee, who applauded the decision to renegotiate the rules. He said a review would help guarantee “fairness” for students and all higher-education sectors.

Cutting red tape has long been a mantra for Mr. Alexander; it is becoming one for the Education Department now, too. A 16-member task force at the department is undertaking a broad, long-term effort to streamline all federal education regulations. The group will be “providing recommendations on which regulations to repeal, modify, or keep in an effort to ensure those that remain adequately protect students while giving states, institutions, teachers, parents, and students the flexibility needed to improve student achievement,” said Ms. DeVos in a statement announcing the group’s first progress report.

Alongside the renegotiation of the Obama-era consumer rules, Ms. Hill said, the secretary also wants to “start from scratch” on the legislation guiding federal higher-education policy, the Higher Education Act, “to ensure we are meeting the needs of 21st-century students and institutions of higher learning.” Starting over on the landmark legislation would be a heavy lift, observers say, but not an impossible one.

‘Let’s Get Out of the Way’

All of that does, eventually, add up to a mission. It’s one that many expected from the department under Ms. DeVos and President Trump: an antipathy toward federal involvement in higher education.

“Putting deregulation as a priority is consistent with limiting the federal government’s role,” said Ms. Amselem of the Heritage Foundation. “That may be part of why we aren’t seeing a clear statement,” she said, “and more of a ‘let’s get out of the way.’”

Still, not all of Ms. DeVos’s choices have been consistent with her views on improving choice and opportunities for students through rollbacks, said Beth Akers, senior fellow at the Manhattan Institute, which advocates for free-market policies.

“It seems like some of the actions are not the pro-market actions I would have expected,” said Ms. Akers, an economist and higher-education expert. The gainful-employment and borrower-defense-to-repayment rules were not perfect, but they could have allowed consumers to protect themselves, she said, by relying on market outcomes instead of restricting how colleges operate.

Another example, she said, is the department’s decision to use a single company to service its student loans, rather than letting a group of companies compete for the business. That’s “more of a big-government approach,” she said.

Ms. Hill, the department spokeswoman, argued that the switch to a single servicer would improve service and oversight. “The single servicer and one platform,” she said, will allow the federal student-aid office “to prioritize its monitoring efforts and better ensure that borrowers are receiving the high-quality customer service they deserve.”

Whether the Education Department is seeking to protect students or colleges or both, it is accountable to the current presidential administration. Many of the troubles that the agency has had to answer for — inadequate staffing, a poorly received budget proposal, and resistance from members of Congress with strong ideas of their own about higher education — can be traced to broader political headwinds.

For example, the Trump administration has been far slower than most in announcing nominees, and in having those nominees confirmed. Brian Jones, a former general counsel at the department under President George W. Bush, said the Education Department is no exception. “We certainly got people in much quicker,” Mr. Jones said.

By May 2001, Mr. Jones said, several political appointees had already been confirmed, including the deputy secretary and under secretary, which are among several positions yet to be filled under Secretary DeVos. By contrast, the department has yet to announce its intent to appoint candidates for either of those critical positions — not to mention an assistant secretary for postsecondary education.

The officials who fill those roles often become the intellectual drivers of the Education Department. In the Obama administration, for example, Under Secretary Ted Mitchell and Deputy Under Secretary Robert Shireman were key forces behind the department’s pushes to rate colleges and hold for-profits accountable. More so than Arne Duncan, the education secretary, those officials were seen as the policy agenda-setters.

Meanwhile, Democratic lawmakers on the Capitol Hill — who have been some of the fiercest critics of Ms. DeVos — have pointed to the Trump administration’s budget proposals as statements of the administration’s values. The two proposals, which featured steep cuts to some grant programs and the department as a whole, are clues that the administration does not value education, critics say. The lack of appointments to key agency positions, they argue, could be another result of that sensibility.

But even if many of the department’s actions are being dictated by the administration’s broader agenda, critics still direct most of their frustration at Ms. DeVos. Sen. Patty Murray, the top Democrat on the Senate education committee, told The Chronicle that “at every opportunity, Secretary DeVos has proven that she does not have students’ best interests” in mind. “The only thing more shameful than watching Secretary DeVos prioritize the profits of corporate special interests,” she said, “is seeing the students she is supposed to support and protect pay the price.”

Whatever those students feel about the Education Department under Ms. DeVos and President Trump, it may be colleges, oddly enough, that see a silver lining.

For eight years, many of those colleges felt besieged by the Obama administration’s demands for accountability and more stringent regulations. Some higher-education leaders viewed the department’s direction as a betrayal; others found it an administrative nuisance. If Ms. DeVos continues to peel back rules, colleges might be grateful for an Education Department without an overarching mission for higher education.

Adam Harris is a breaking-news reporter. Follow him on Twitter @AdamHSays or email him at adam.harris@chronicle.com. Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.