Protecting Students, Not Bureaucrats

Before President Trump took office, the conventional wisdom amongst policy wonks was that his promise to dismantle the Department was hollow, that there was nothing that could be done without 60 votes in the Senate. But through the thoughtful and creative use of inter-agency agreements, Secretary McMahon has shifted the administration of most statutorily mandated functions to agencies better equipped to handle them.

Throughout, teachers’ unions have complained that bureaucratic shifts in Washington, D.C., somehow harm students. But the latest and largest shifts clearly help to protect them: moving civil rights enforcement and privacy protection to the Department of Justice (DOJ) and special education to the Department of Health and Human Services (HHS).

The Department of Education’s Office for Civil Rights (OCR) is notoriously slow and inefficient at responding to complaints of illegal discrimination. Earlier this year, Senator Bernie Sanders (I-VT) published a report alleging that President Trump’s OCR is the least efficient in recent history. The long-run data, however, tells a different story. The first Trump administration resolved twice as many cases as the Biden administration. When President Trump took office again, his Department of Education faced nearly 12,000 pending cases.

One reason why cases take so long to process is that they are handled by regional offices serving multiple states apiece. The DOJ operates on a wider scale and can more easily form local partnerships to investigate claims. Students and parents should, once the administrative details are fleshed out, find that they no longer have to wait years for their complaints to be addressed.

The Department of Justice will also be taking a larger role in student privacy concerns. Traditionally, these have barely been an afterthought within the Department of Education. If a school district administered an invasive school survey in violation of the Protection of Pupil Rights Amendment, or mishandled student data in violation of the Family Educational Rights and Privacy Act, parents would have to complain to bureaucrats in Washington, D.C. This wasn’t widely broadcast, and there were relatively few agency staff on the case. Now that parents can bring their concerns to the DOJ, which has visible representation all across the country, we can expect student privacy rights to be far more vigorously enforced.

What’s more, the DOJ is already – by necessity – in the business of investigating school districts to defend children’s rights. The Supreme Court’s decisions in Mahmoud v. Taylor and Mirabelli v. Bonta have made it clear that school districts can’t expose children to sexually explicit material or gender ideology without providing an opt-out option and can’t conduct social gender transitions on students while keeping it secret from their parents. These are constitutional protections. The Department of Education has no authority to police them – the DOJ does.

Undoubtedly, defenders of the status quo will complain that students with disabilities will be harmed by transferring administration of the Individuals with Disabilities Education Act (IDEA) to HHS. But IDEA pre-dates the establishment of the Department of Education by five years and was originally administered through HEW (then the Department of Health, Education, and Welfare). The biggest beneficiaries of this administrative shift may be young adults with severe disabilities. Too often, parents face a cliff after their child becomes too old to remain in public school. Community and independent living programs exist, but they can be hard to find and difficult to navigate toward. With a single federal agency responsible for helping states protect these students, it should become far easier to streamline and expand services for them.

These latest interagency agreements could prove the most consequential yet for K-12 education. Congress has shown some skepticism toward these agreements, but the two described here should do far more to protect the rights of vulnerable American students than the status quo.

Erika Donalds is the Chair of Education Opportunity at America First Policy Institute.