Chris Powell: Beware 'regulatory capture' of appointees to Cabinet

MANCHESTER, Conn.

Many teachers around the country are cheering the forthcoming change in national administration  because Betsy DeVos will be replaced as secretary of education. DeVos, an heiress and philanthropist, has been a fan of charter schools and a foe of political correctness. While not really expert in pedagogy, at least she has not been the usual tool of teacher unions.

But President-elect Joe Biden is encouraging teachers to expect Nirvana. Addressing them the other week, Biden noted that his wife, Jill, is a community college teacher, and so "you're going to have one of your own in the White House." Presumably that means that teachers will have "one of their own" at the Education Department as well.

Among those mentioned is U.S. Rep. Jahana Hayes, the former Waterbury teacher and 2016 national teacher of the year, a Democrat who was just elected to her second term in Connecticut's 5th Congressional District.

Apart from her classroom work, Hayes has no managerial experience and her first term in Congress was unremarkable. Her recent campaign's television commercials celebrated her merely for listening to her constituents. While she won comfortably enough in a competitive district in a Democratic year, her departure for the Cabinet would prompt a special election that the Democrats might lose even as they already are distressed by the unexpected shrinkage of their majority in the U.S. House.

But then the U.S. Education Department does little to improve education. Mainly it distributes federal money to state and municipal governments, which do the actual educating. No matter who becomes education secretary, money will still get distributed and education won't improve much if at all.

Quite apart from the personalities, the big issue about the appointment of an education secretary is the big issue with other federal department heads. Why should the public cheer the appointment of an education secretary who is part of the interest group he would be regulating, any more than the public should cheer another Treasury secretary coming from a Wall Street investment bank, another labor secretary coming from a labor union, another defense secretary coming from the military or a military contractor, another agriculture secretary coming from agribusiness, and so yforth?

This kind of thing is called "regulatory capture" and it operates under both parties, though some special interests do better under one party than the other, as the cheering from the teacher unions indicates.

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The virus epidemic has invited a comprehensive reconsideration of education but no one in authority has noticed.

Every day brings a change of plan and schedule in Connecticut schools. One day they're open and the next day they are abruptly converted to "remote learning" for a few days, a week or two, or a whole semester because somebody came down with the flu.

Amid all this many students have simply disappeared. Additionally, since education includes not just book learning but the socialization of children, their learning how to behave with others, the education of all children is being badly compromised.

Gov. Ned Lamont wants to leave school scheduling to schools themselves. This lets him avoid responsibility for any school's policy. But local option isn't producing much education.

The hard choice everyone is trying to avoid is between keeping schools open as normal, taking the risk of more virus infections because children are less susceptible to serious cases, or converting entirely to internet schooling and thereby forfeiting education for the missing students and socialization for everyone else.

If social contact can be forfeited, the expense of education can be drastically reduced. The curriculum for each grade can be standardized, recorded, and placed on the internet, with students connecting from home at any time, not just during regular school hours. Tests to evaluate their learning can be standardized too and administered and graded by computer. A corps of teachers can operate a help desk via internet, telephone, or email.

Much would be lost but then much already had been lost even before the epidemic, since social promotion was already the state's main education policy. Maybe the results of completely remote schooling would not be so different from those of social promotion.

Chris Powell is a columnist for the Journal Inquirer, in Manchester.

Terry Hartle: Seeking transparency in college sexual-assault cases

Via The New England Board of Higher Education (nebhe.org)

When U.S.  Education Secretary Betsy DeVos announced on Sept. 7 that her department would revisit how Title IX rules are enforced with respect to campus sexual assault, she said the first step would be a “transparent notice and comment process” to replace the 2011 “guidance” (and follow up 2014 guidance) that has been criticized for its one-size-fits-all presumption and lack of flexibility for campuses.

The U.S. Department of Education announced more details last week about how that process will work.

On Friday, Sept. 22, the department issued a “Dear Colleague” letter and Q&A documenton Title IX and sexual assault. The Dear Colleague letter rescinds the 2011 and 2014 guidance and states that the department will develop a policy that “responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits” through a rulemaking process. The schedule for this process is unclear.

In the interim, the department will rely on the “Q&A on Campus Sexual Misconduct,” developed using the 2001 “Revised Sexual Harassment Guide.” In some areas—such as letting colleges choose whether to use the “preponderance of evidence” or the “clear and convincing” evidentiary standard—the Trump administration is clearly making a change from current practice. In other areas, the new Q&A requires the same thing as the existing guidance. For example, the 2011 guidance and the Trump administration’s Q&A both require schools to have a title IX coordinator.

It should go without saying that schools should be very careful about altering current practices and only do so after close examination of the Q&A. And keep in mind that any changes may be temporary. The regulatory process the department intends to pursue is very likely to result in further changes in federal requirements.

But as the process for updating the Title IX campus sexual assault enforcement rules gets underway, let us not forget how notable it is that this is happening in the first place.

At one level, a regulatory process is not a big deal. The Education Department does it all the time on many issues.

Just since 2000, hundreds of higher education rules have been modified, created or eliminated.

However, the department rarely uses the regulatory process for Title IX. Indeed, OCR has gone through the formal rulemaking process just three times since initial Title IX regulations went into effect in 1975. Only two of these affected higher education. The first time involved revoking the prohibition on discrimination in the application of the codes of personal appearance in 1982. In 2000, OCR altered Title IX regulations to implement the Civil Rights Restoration Act of 1987, the so-called “Grove City” law that overturned a 1984 U.S. Supreme Court ruling that held that Title IX applied only to student financial aid, not other parts of the college that received federal dollars. The Civil Rights Restoration Act ensured that Title IV student financial aid triggered Title IX exposure for the entire school.

OCR has been more inclined to simply issue “guidance” that interprets Title IX regulations pertaining to campus sexual assault rather than pursue a formal rulemaking process. For example, the 2011 Dear Colleague Letter was developed “in house” without any suggestions from affected parties.

It is significant that the Trump administration is attaching a great deal of importance to getting the serious and complicated issue of campus sexual assault enforcement right. Promulgating regulations affecting Title IX is infrequent, hard and important. It is always a good idea to give all the parties involved an opportunity to comment and give their views on public policy.

Institutions, in responding to claims of sexual assault, have a responsibility to support the victim and to be fair to both parties. Figuring out exactly how to do that, when there may be different stories about what happened, no witnesses, and substance abuse may have been involved, can be extraordinarily difficult.

What we have had is a set of requirements, some of which are legally mandatory, others of which may or may not be mandatory. For colleges and universities the result has been uncertainty and complexity with no way to be sure in advance if they are doing the right thing. In this environment, it’s hardly surprising that schools have run afoul of OCR.

In the short run, any tweaking of campus policies or proceedings is likely to be at the margins. It is unlikely that colleges and universities will immediately change policies that they spent the last six years writing—and sometimes rewriting. And no institution will back off the commitment to prevent sexual assaults from occurring in the first place and handling cases that do occur with compassion for the survivor and fairness to both parties.

But replacing legally binding but unclear guidance with legally binding and clearregulations, and soliciting input from all sides in doing so, is a very good idea that will result in clearer regulations and, we hope, greater protections for all students.

Terry Hartle is senior vice president of government and public affairs at the American Council on Education.

Chris Powell: Complexity, hypocrisy, ambiguity in school-choice issue; sieg heil Trump?

-- Photo by David Shankbone

Public high school class in Colorado.

Democratic legislators are always most conscientious when they are playing stooges for the teacher unions, perhaps the most powerful component of the party's base. Hence the all-nighter  that Democratic U.S. senators pulled on the Senate floor to posture against President Trump's nomination of Betsy DeVos for U.S. education secretary.    

Yes, DeVos has no experience in administration of public education, but then no one who has ever tried to get a straight answer out of a school superintendent will hold that against her. The real objection to DeVos has been her advocacy of school choice -- that is, giving public schools some competition from charter  schools and private schools. Speaking against DeVos during that all-nighter,  Connecticut Sen. Chris Murphy said she had sought to "undermine" public schools.   

School choice  is  a complicated issue. It can divert resources from the poor to the financially comfortable, who already have a large degree of choice through their ability to move away from urban poverty to the suburbs. But most advocacy of school choice aims to empower the poor, though even that can rob struggling schools of their best students.   

In any case insofar as the U.S. Education Department long has represented the education establishment and particularly the teacher unions, the department could use an outsider's perspective, as could all of primary education in the country. For in many states, including Connecticut, two-thirds of high school students graduate without ever mastering high school work, most of public education in this country having collapsed into social promotion.   

Further, a big problem with public education in Connecticut particularly is that it's not really public at all.    For example, since 1984 teacher evaluations have been exempted from disclosure under Connecticut's freedom-of-information law, an amendment to the law having been demanded by the teacher unions in response to a finding by the Freedom ofInformation Commission that the law required disclosure. Among all state and municipal employees in Connecticut, only teachers enjoy this exemption.   

A few weeks ago The Hartford Courant reported that about a third of Connecticut's school boards evaluate their superintendents only by discussion in private meetings to avoid generating any records that would become public.    State law requires towns to elect school board members for staggered terms so that even if townspeople are unanimous in wanting to replace every school board member, this cannot be accomplished in fewer than three elections over six years.   

Then there is Connecticut's "minimum expenditure requirement," the state law that forbids towns from reducing school spending even if student enrollment goes to zero. The law's purpose has been to ensure that all financial savings from declining enrollment go straight into teacher salaries and benefits, with taxpayers recovering not a cent.   

None of these provisions serves the public any more than the Democratic senators, in opposing DeVos, served the public. These provisions serve only those employed in education, and the Democratic senators have been only verifying Ambrose Bierce's definition of politics: "A strife of interests masquerading as a contest of principles; the conduct of public affairs for private advantage."

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IS PRESIDENT TRUMP A FASCIST? One swallow may not make a summer, but Trump's ugliest approach to fascism happened last week, when, at a meeting at the WhiteHouse with sheriffs from around the country, he was told of a state senator in Texas who has proposed legislation to prohibit police from seizing the assets of people who are only suspected but not convicted of crime.  

 The legislation would uphold ordinary due process of law. But Trump's response was: "We'll destroy his career."    The sheriffs laughed. They should have shouted: "Sieg heil!"  

Chris Powell is managing editor of the Journal Inquirer, on Manchester, Conn.