The following op ed by ELC Executive Director David Sciarra and Derek Black of the University of South Carolina appeared in USA Today
By David Sciarra and Derek W. Black
As much of the country experiences an alarming surge of COVID-19 cases, Education Secretary Betsy DeVos is carrying President Donald Trump’s water by demanding that states reopen their schools after the summer break. She makes this demand with no sense of how schools can do this safely. But just beneath her disregard for public health is a shocking ignorance about the fundamental nature of authority over public schools in this country. The secretary assumes she has that power and wants to run roughshod over those who do. In fact, shortly after making the demand, the governors of South Carolina, Iowa and Florida bowed to her assertion of authority, much to the dismay of educators in those states.
DeVos’ blanket demand that schools open is dangerous in its complete lack of consideration for student and teacher safety. She dismisses the risk of spreading COVID-19 among students, teachers and staff in school buildings. She offers no guidelines or standards on what measures are necessary to allow for a safe return to the classroom. She refuses to say schools should follow guidance from the Centers for Disease Control and Prevention or acknowledge that schools will need to close and return to remote learning in the event of an outbreak.
The danger of DeVos’ demands
On top of that, DeVos threatens to put schools in a double bind: Open under potentially unsafe conditions or lose the money that you will need to open safely later. DeVos has warned local education officials that if they do not reopen their buildings — no matter what — she will withhold federal funding. Just when the pandemic has focused the nation’s attention on the essential role of public schools for families and communities, and when they need more, not fewer, resources to safely reopen, she wants to pull the plug on the funds schools must have to safely reopen.
The one saving grace is the secretary’s apparent ignorance of the fact that she lacks the statutory power to follow through on this threat. She can’t close schools, and she sure can’t open them either. Federal education statutes do not condition the receipt of federal funds on districts educating their students only in school buildings. As long as the states continue to deliver education to students, DeVos can complain all she wants, but she has no power to stop the flow of funds appropriated by Congress.
And the reality on the ground confirms that the states, not federal officials, make these decisions. It was, after all, just four months ago that states ordered school buildings closed and transitioned to distance learning, and then ordered them to stay closed until summer.
But the secretary’s threat to withhold funding — however hollow — is still dangerous. It puts the spotlight on her, distracting attention from the states where it belongs. There is no right to education in the United States Constitution. But the right to education is enshrined in the constitutions of all 50 states. These constitutions obligate the states, through their elected branches of government, to maintain and support a system of free public education available to all resident children.
Encroaching on states’ constitutions
The states’ constitutional duty does not dictate whether students must be educated in person or online, or on any particular day or in any particular month. But it does require states to provide all children an education of adequate quality in a safe and healthy environment. So when DeVos demands schools open now or face losing federal funds, she not only wants to force states to bring students back into buildings without addressing the health risks from COVID-19, but also pushes states to violate their own constitutional obligations to students.
DeVos has crossed a bright constitutional line that has separated the federal government from the states throughout our nation’s history. Unfortunately, this is far from the first time she has tried to seize power she doesn’t have. Last month, she adopted a rule to force public schools to take money Congress reserved for them and give it to private schools, even those with the wealthy students. A few months before that, she faced court fines because she continued to collect student loan payments in violation of federal law. Now, she is trying an end run around the states by literally asserting control over the basic operation of every public school in the nation.
Secretary DeVos is, in effect, out of control. Each day she remains in her position she presents a real danger to the health and well-being of students and the state systems of education that serve them. States and school leaders must abandon any pretenses that the Secretary of Education can or will provide any helpful leadership. If our schools are to make it safely through this coming academic decision, they must look inward, make decisions based on local circumstances, and exercise the authority that rests in their hands, not with DeVos.
David Sciarra is executive director of the Education Law Center. Derek W. Black is the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina and author of “Schoolhouse Burning: Public Education and the Assault on American Democracy,” coming Sept. 22. Follow him on Twitter: @DerekWBlack
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