DeVos confirmation squeaks through Senate

By Andrew Kreighbaum
February 8, 2017

To many of the teachers’ groups and other critics who protested, called and emailed their senators, the confirmation of the pro-charter school, pro-voucher Michigan billionaire was a blow to public education. But while most of the public debate about her nomination swirled around issues affecting K-12 public schools, it largely neglected the realm of higher education.

Observers of higher education policy said DeVos could have a significant effect in the short term by changing tack on Obama administration strategies that saw the department take on a bigger oversight role involving for-profit colleges and student loan servicers.

DeVos’s public image took a scouring during the confirmation process. After a rocky hearing on Capitol Hill in which she often looked unprepared or ill informed about questions of education law and policy, she was widely mocked on forums like Twitter and Saturday Night Live. Newspaper editorial boards across the country questioned her competence and qualifications for the job. And DeVos did nothing during the confirmation process to win over Democrats who were — at best — skeptical of her nomination since Donald Trump announced her as his pick to lead the Department of Education.

The contentiousness of the confirmation process has led some observers to question whether DeVos will begin her tenure as a weaker secretary. But Barmak Nassirian, the director of federal relations and policy analysis with the American Association of State Colleges and Universities, said Secretary DeVos’s credibility and effectiveness will be a direct function of her conduct on that job.

“You don’t want to be on Saturday Night Live being made fun of. That’s generally not a good way of building effectiveness,” he said. “It is possible to overcome those kinds of perceptions with impressive conduct and good administration of programs.”

Nassirian, a frequent critic of for-profit colleges, said it appears the Trump administration will be more sympathetic to that sector and the student loan servicing sector. The Obama administration introduced a number of regulations to step up accountability of for-profits that receive revenue from federal financial aid.

Those regulations, which the department pursued independently of any congressional mandate, came under frequent attack from Republicans in Congress. Whereas Obama’s second secretary of education, John B. King Jr., made no bones about aggressive oversight of for-profits, it’s likely the department will be less active in that role under DeVos. Jeff Andrade, a senior adviser with the McKeon Group who has previously worked at the department and for GOP lawmakers on Capitol Hill, said DeVos would find power through the secretary’s bully pulpit to highlight problems that conservative critics have found with the department’s current approach.

“Most casual observers will take a look at the Obama administration’s position with respect to for-profits and come to the conclusion that a lot of it was bureaucratic and regulatory overreach,” he said. “A lot of it was done without congressional input, without congressional leadership and in many cases without a legislative mandate.”

Even after receiving intense scrutiny from Democrats, DeVos has made few policy commitments on issues like student loan policy and implementation of gainful employment rules or other oversight measures in the for-profit sector. But it’s likely that she will find more areas of agreement with Republican congressional leaders than did her Democratic predecessor, King.

DeVos said after her confirmation that she will be a tireless advocate for all children.

“I appreciate the Senate’s diligence, and I am eager to get to work,” she said in a statement. “Partnering with students, parents, educators, state and local leaders, Congress, and all stakeholders, we will improve education options and outcomes across America.”

GOP lawmakers have put rolling back the Obama administration’s regulatory legacy at the top of their agenda. They’ve indicated they plan to use the Congressional Review Act to block “midnight regulations” like the borrower defense and teacher prep rules finalized in the waning months of the Obama administration. They could also look to defund gainful employment, which the department crafted to weed out vocational programs that graduate students with high volumes of student loan debt and poor prospects of paying it off.

Andrade said DeVos could undertake a re-evaluation of the gainful employment regulations, including the quality of the data and metrics used. And the department under DeVos could give programs currently deemed failing more time to come into compliance with the regulations.

“She obviously can’t wave a magic wand and make the regs go away,” Andrade said.

Much of the heavy lifting on those issues will also be done by staff members that have yet to be named. DeVos hasn’t indicated whom she might name to serve as an assistant secretary or under secretary.

Mark Huelsman, a senior policy analyst with progressive think tank Demos, said the public outcry that accompanied DeVos’s confirmation could make her more cautious about pursuing controversial agenda items.

“There’s absolutely a chance she would be chastened by this, given the level of opposition to her confirmation,” Huelsman said.

DeVos’s confirmation as secretary could also mean a more chastened department in regulatory areas beyond the for-profit sector. In areas such as guidance for campuses on enforcement of Title IX of the Education Amendments of 1972 and oversight of loan servicers, the department could be “less of a cop on the beat,” Huelsman said.

Under the Obama administration, the department through Dear Colleague letters pushed colleges and universities to take a more active role in investigating sexual assaults on their campuses. Those policies could be among the first to be shifted in a department whose leadership is more sympathetic to concerns about due process rights for students accused of sexual assault. Advocates for victims of sexual assault say federal guidance was critical to ensure institutions were reporting and resolving cases appropriately, but many critics — including some Republican politicians — said the Obama administration’s policies denied the accused fair treatment.

But there are a number of nonideological issues that could keep the department preoccupied in the coming months, said Dennis Cariello, a former attorney at the Department of Education who now advises institutions including for-profit colleges. He pointed to a Government Accountability Report from last year that found the department has miscalculated the costs of income-driven repayment programs and news, more recently, that it had included an error in loan repayment rates in the College Scorecard.

“The department is basing policy on repayment rates that are wrong. There’s no Republican or Democratic way to make sure you have correct data,” he said. “You’ve just got to get that done.”