Deep Dive Episode 311 - Can the President Shut Down the Department of Education? - RTP's Fourth Branch Podcast

Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Regulation after regulation. There are pagated regulations that need to.

Speaker 2 (00:04):
Be changed one hundred and eighty five thousand pages.

Speaker 3 (00:08):
Now public accountability and transparency. There will be no public supports.

Speaker 1 (00:13):
It's really the best we can do.

Speaker 4 (00:14):
There's a regulation that doesn't make any sense.

Speaker 1 (00:16):
Why do you keep you.

Speaker 5 (00:17):
Know who wrote the regulatory laws you must comply with.

Speaker 1 (00:20):
Welcome to the Regulatory Transparency Project's fourth Branch podcast series.
All expressions of opinion are those of the speaker.

Speaker 6 (00:32):
Good afternoon, and welcome to today's Regulatory Transparency Projects webnar titled
can the President shut down his Department of Education? You're
so glad that you're able to join us today. My
name is Sarah Clark. I am the assistant director with
the partnerlest Society Orgatory Transparency Projects. As a reminder, all

(00:55):
opinions extrasts are those of the speakers and not of
the farterallest design be are honored to be adjoined by
a fantastic panel of experts. In order to get right
into discussion, I'll leave indidividual introduction to our moderator. After
the panel of discussion, there will be a short period
designated for audience questions. We ask you to submit them

(01:18):
viasums Q and a nature not the chat, and that
the questions are pertinent to the topic at hand. Our
moderator today is Robert I. Tell, who's the co founder
and president of the Defense of Freedom Institute. He previously
served as Senior Counselor to the Secretary of Education from

(01:38):
twenty seventeen through twenty twenty and defan General counsel at
the US Department of Education from two thousand and five
to two thousand and nine. You can find out more
about today's moderator and panelists at budsox dot org. With that,
I will hand Thames up to mister I Tell to
get us started. Mister I Tell, thank you for to

(02:01):
thank you so much.

Speaker 3 (02:01):
Sah. It's a delight to be here, and I really
appreciate the opportunity and I'm pleased that all of you
could join us today as we explore the question can
the President shut down the Department of Education for clarity?
This will be a discussion of the legal and policy
aspects of dismantling the US Department of Education, So this

(02:23):
will not be a solely a law center discussion. Because
we're fortunate to have today for excellent experts in this
area that addresses both the legal and the policy aspects
of this issue. Jonathan Butcher, Michael Petrelli, David Randall, and
Ken Talbert. I'll introduce each of them. I'm going to

(02:46):
also after that way, they sort of set out the
context for the current discussion. There's been a lot percolating.
I realized that not all of the persons watching this
webinar have the time to keep up with this issue.
A lot has spent happening. I'll sort of set the
contacts in terms of litigation and presidential action and departmental action,

(03:13):
and then we'll open it up to opening statements from
our panelists, followed by discussion and then Q and A.
First up. Jonathan Butcher's the Will S. Gilman excuse me,
a Senior Research Fellow in education policy at the Heritage Foundation.

(03:34):
He has researched and testified in education policy around the
United States, including testimony before the US Commission on Civil Rights.
He serves as chair of the South Carolina Advisory Committee
to the US Commission on Civil Rights, and in twenty
twenty one, the Governor of South Carolina nominated Jonathan to
serve on the board of the South Carolina Public Charter

(03:55):
School District a statewide charter school authorizer. Mike Patrelli. He's
the president of the Thomas B. Fordham Institute, Research Fellow
at Stanford University Sugar Institution, and an executive editor of
Education Next. From two thousand and one through two thousand
and five, he served at the US Department of Education

(04:17):
in the George W. Bush administration. David Randall is Director
of Research at the National Association of Scholars an executive
director of the pacifics Alliance. He was lead author of
the recent NAS publication Wasteland the Education Departments, probablycy, Mediocrate

(04:37):
and Radicalism. Kent Talbert, my old boss at the Department
of Education, currently serves as an investigative council on the
US House Committee on Educational Workforce, handling a range of
oversight issues involving higher education, primal rights, and other matters.

(04:57):
He has previously served as General Council at the US
Department of Education and during the Trump administration, as a
senior advisor to the Deputy Secretary of Education. So let's
turn out to what's been what's been happening litigation and
policy wise concerning efforts by the Trump administration to shut

(05:21):
down the Department of Education. I think the first thing
you need to realize, well, there's I think there's there's
there's three general items. The first is that on March
eleventh of this year, the Administration announced that the Department
of Education would engage in a fifty reduction force in

(05:45):
its workforce. That came as a surprise to many people
in this area. And this announcement, this riff, as you
will see, will have an effect upon the ability of
the Administration to close the Department of Education, and litigation

(06:05):
that has been subsequently commenced. The second thing that happened
was that on March twentieth this year, the President signed
EO one four to two four to two Improving Education
Outcomes by Empowering Parent States and Communities. And in this EO,
the President directed the Secretary of Education quote to the

(06:27):
maximum extent appropriate and permitted by law, to take all
necessary steps to facilitate the closure of the Department and
return authority over education to states and local communities. The
second aspect of that EO directed, and this is something

(06:49):
that's less discussed in connection with this dismantlement EO, was
that the Secretary was directed to space paid special attention
to federal civil rights laws as it relates to legal
requirements that attach themselves to Department of Education funds and programs,

(07:14):
particularly the requirement that any program receiving federal financial assistance
terminate illegal discrimination under the label the diversity, equity and
inclusion in similar terms, and programs promoting gender ideology. So
in the CEO, you had a directive from the President

(07:36):
to the Secretary to the maximum extent appropriate to take
steps to facilitate the closure, but also, by the way,
to enforce vigorously the civil rights laws of the United States.
Subsequent to that, the President and a press conference announced
that the Federal Student Loom portfolio would transfer from ed's

(07:58):
Office of Federal Student Aid to the Small Business Administration,
which again took I think many people by surprise, because
that is not an issue that authority, that that notion,
that policy had not been discussed before. A couple months
later I made twenty second, the Collection of States and

(08:20):
school Districts sued the Department, alleging that the riff that
I referenced before was actually a pretext for dismantling the
Department of Education. On this theory that the riff would
make it impossible for the Department to perform its statutory obligations,
and that the riff was a step toward a de

(08:40):
facto dismantlement. Ultimately, the Court of the Planets managed to
convince the Court that the Administration was leveraging the rift
to dismantle the Department with that congressional authorization. The Court,
for a number of reasons, not the least the witchers
that they found a violation to super ration of powers

(09:01):
and that the Department was allegedly acting outside of its
scoop of statutory statutory authority. They should a preliminary injunction
UH and the Department, as a consequence, has been directed
to reinstate the employees that were subject to the riff
and to take steps not to enforce any dismantlement of

(09:25):
the department. Administratively, the Administration went to the Fifth Circuit,
First Circuit to ask for a stay that was refused,
and I believe that the matter that the State request
is now pending before Scotus. So with that context, I
wanted to recenter the conversation. I asked can Talbert specifically

(09:53):
to talk a little bit about the origins of the
Department and the statute statutory authority giving rise to the
Department of Education and specifically the Department of Education Organization
Act CA. What did Congress do with this legislation that
created the department?

Speaker 6 (10:15):
Sure?

Speaker 5 (10:15):
Sure, and thanks very much to the Federalist Society for
hosting the Department. Or actually, back in nineteen seventy nine
when the Department of Education Organization Act was first enacted,
it established the Department as an independent cabinet level agency.

(10:38):
And that was after many other education functions had been
put into law on the various statutes over the years.
And so, you know, the statute itself, the Department of
Education Organization Act itself, included a number of findings. It
actually had about ten findings, which is quite a few.

(11:01):
It had seven purpose statements, and it also had a
separate section on federal state relationships given the concern of
a number of members of Congress and others as well
at the time. And so the findings and the purpose
statement set up to a degree, you know, what the

(11:24):
role should be of the newly established Department of Education.
Finding three, for example, says that parents have the primary
responsibility for the education of their children, and states, localities
and private institutions have the primary responsibility for supporting that
parental role, and so they right away had a finding

(11:46):
associated with parents again as they're establishing this new department
and peeling off the Bureau of Education from the former Health, Education,
and Welfare Department. Finding for for example, goes directly to
the primary responsibility of education, and that essentially says that

(12:07):
the primary public responsibility for education is reserved respectively to
the states and the local school systems and other instrumentalities
of the states. Again picking up on you know, state
and local government's role that's reserved for them under the Constitution.

(12:30):
The purpose statements. Also, there's a purpose statement that talks
about the Department being coming into existence to supplement and
complement the efforts of states, local school systems, and other
instrumentalities of the states, and the private sector. And there
are also several other entities mentioned, but in essence that

(12:54):
purpose statement, one of the purpose statements is to supplement
and compliment that what states are doing. And then the
last thing this section on federal state relationships. Again it's
part of the Department of Educational Organization Act. It says
that the establishment of the Department of Education shall not

(13:16):
increase the authority of the federal government over education or
diminish the responsibility for education which is reserved to the
states and local school systems and other instrumentalities of the states.
And so again, you know, the drafters and the drafters
of the act, the legislation, we're very concerned about, you know,

(13:41):
what is the role of the department to be as
a freestanding cabinet level agency. And again it says the
establishment of the Department of Edge shall not increase the
authority of the federal government or diminish the responsibility of education,
which is reserved to the states. And the law also

(14:01):
includes as a rule of construction which is very relevant,
that nothing in the law shall be construed to authorize
the Secretary or any other officers of the Department to
exercise direction control over curriculum or programs of instruction. Again,

(14:23):
the writers of the law were laying down some markers
as to what is the proper role of the department
to be now that you know, it's coming into existence
in nineteen eighty it was, it was enacted and signed
in nineteen seventy nine, But unfortunately, the net result over
the nearly forty six years of the Department has been.

(14:45):
The Department seems to have veered far a field of
these limitations that we see in the findings and in
the purpose, and also in the statement about the relationships
between the federal government in the states and localities. Also
over the forty six years, the Department appears to have

(15:06):
increased its authority, and in fact, some would argue has
taken on a primary role rather than a supplementary role,
and that it's displaced in effect, what the states are
responsible for doing and driving the agenda, when it should

(15:29):
be the other way around. The other thing is I
think some would argue that the Department of Education Organization
Act is fully implemented as of today forty something years later.
In some respects, the Department has ignored the role of parents.

(15:50):
Some would say in many respects it's it's done that.
But but in short, you know, the the review of
the Department of that Organization Act and it's establishment of
the department, it really seems to be a question about
the governance of education at the federal level and the

(16:12):
proper federal role if any you know, what what should
that be? And so it's a very timely issue, and
thanks so much for the opportunity to participate.

Speaker 3 (16:25):
So in that, Dan Jonathan, why don't you give some
opening thoughts about all this.

Speaker 7 (16:31):
Well, thank you, thank you Robert, and to the Federal
Society for putting on this event, and thanks to my
fellow panelists. And I'm sorry to inform you that in
any debate, the boat tie always wins. The President's leadership
and policies are essential to closing the Department of Education.
Now clearly there the agency was established by statute, and

(16:53):
there are parts of education policies that are in law
that will need legislative authority for the agency to be
closed down. But it simply cannot be done without the
vision and leadership that would come from the executive branch.
So let me give you three quick points here. And
first I'd have to say that I do agree with
Kent's comments, especially at the end, and as you'll see

(17:15):
from what I'm going to say, my view and really
the evidence in policy and in the results of the
department are in line with where can landed at the end.
So first, the President is correct to close the Department
of Education or to call for its closure. The riff
the reduction force that Robert alluded to in his opening remarks,

(17:37):
the executive order, there are all steps in that direction
to wind down the agency. The Heritage Foundation has a
paper that I co authored. I'm sure that we can
make available to everyone via the chatter or otherwise about
how the agency would be not just wound down, but
that parts of it should be kept and then moved

(17:59):
to other departments that are better suited. So, for example,
the Office of Civil Rights in the US Department of Education,
it would make sense to that to go to the
Department of Justice. Civil rights is essential. Conservatives or those
on the left, we shouldn't be calling for less civil
rights protection.

Speaker 6 (18:15):
Right.

Speaker 7 (18:15):
We need to be calling it for ocr to be
handled in a right agency. NCS which measures student achievement,
many of the same functions are performed by the Census Bureau.
It would make sense for the nation's report card to
go there. So we have an outline of where these
different offices should go, and then the list of offices

(18:37):
or parts within the Department of Education that need to
be closed. Second, make no mistake, the policy history that
kent't just laid up is essential in understanding the department.
But don't forget the politics. The US Department of Education
was created an agreement with unions. It was a deal.
They made a deal with the unions to create this agency.

(18:59):
It allowed the t unions to have better access to
federal money and advocating for programs and in perpetuity, essentially
calling on taxpayers to pay for special interests. That's why
it was created. The sheer number number of federal activities
and I'm a quote here from a report that's about

(19:19):
more than twenty years old. Now that was a review
of the Department. Back then, the sheer number of federal
activities had quote actually led to a cottage industry in
selling information on program descriptions, application deadlines, and filing instructions
for each of the myriad of federal programs. It created

(19:39):
something for people to work on. That's what the agency created.
Number three, the Department of Education. It's not about achievement.
So we can talk about student achievement, math scores, reading scores,
we can talk about how it hasn't helped, but that's
not what the agency was really set up to do.
It actually does very little to to manage or change

(20:03):
the way that student achievement swings across these subjects. However,
it does have a lot to do with coercion. So,
for example, in twenty fourteen, the Department of Education was
key under the Obama administration in swinging the way that
we deal with student discipline and essentially advocating for a

(20:24):
singular view of telling schools they may not discipline students
of certain races more than others, right, which is a
slap in the face to how we should understand civil
rights law. The same thing goes for national standards. Right
under the Obama administration, they coerced schools with money to

(20:46):
adopt national standards under the Common Core. In the last administration,
they redefined what sex is in Title nine right without
bothering to go through Congress. And what's fascinating is that
the same teachers unions who are suing under the lawsuit
that Roberts described to stop the Trump administration from closing

(21:08):
the US Department of Education. These are the same unions
who didn't say boom when the Biden administration wanted to
redefine the word sex in civil rights law. Which is
fascinating that they were so quiet about it. So make
no mistake, closing the Department of Education will return authority
to the States. This is not an issue of abandoning education.

(21:29):
This is about returning it to the place where parents
and local educators will have the most autonomy.

Speaker 3 (21:35):
Michael Trayli, I'd like to hear from you about this,
so go ahead please.

Speaker 2 (21:41):
Great Well, first of all, thanks Bob, and thank you
Sarah for the invitation, and Jonathan very nicely done. Look,
I you know, am here in some ways to disagree
with what Jonathan said, but I think we do agree
with many things, which is that there have been some
really bad policies coming out of the federal government over
the years that have done some harm. That twenty fourteen

(22:03):
guidance on discipline, that's something I've written a lot about,
and I think it was definitely a big mistake. I
think what we have to acknowledge, though, is that, like
anything else in this life, you know, federal policy can
be good, bad, or in between, and it has varied
over time. If you go way back to the nineteen
fifties and sixties and the age of desegregation, you know,

(22:25):
the federal government did a lot of good and the
schools in the South in this especially the sixties into
the seventies, would would not have desegregated as fast without
federal policy. And the results were tremendous in terms of
both making our schools more integrated, but also in terms
of student achievement for African American kids going way way

(22:47):
up in those years, especially in the South, in the
age of No Child Left Behind in the sort of
late nineties early two thousands, in that era when there
was a lot of focus on testing and accountability, a
lot of leadership from both Democrats and Republicans from the
White House, we saw huge gains in student achievement, especially
for the lowest income kids, especially for African American Hispanic kids.

(23:10):
And so that was a time when we were rowing
in the same direction as a country, and the federal
role did some good. And then, like Jonathan said, there's
lots of examples of federal policy doing harm. So my
own take is that for the last decade or so,
there's not much of a strong federal role to point to.

(23:31):
When No Child Left Behind went away and was replaced
with the Every Student Succeeds Act, which is coming up
on its tenth birthday this December, a lot of the
more coercive parts of federal policy went away in terms
of how states had to design their accountability systems and
the like. So what we're left with is still some

(23:51):
spending on education. Certainly, these debates Jonathan mentioned that relate
to the Office for Civil Rights and how we interpret
some of the anti discrimination and laws. And my take
is that it's the federal government's not doing much harm
in education anymore, but it's also not doing a whole
lot of good in education anymore. And so it's a tool.

(24:11):
You know, it is a tool that can be used
for good or for harm, and right now it's not
being used for much of either. So, look, the administration
is clearly serious about trying to eliminate the Department of Education.
They have said they will, however, not eliminate the federal
role in education. They've expressed support, for example, for the
big Title I program that supports K through twelve education.

(24:35):
They want to move things around. I think that's nothing, Burger.
I think that's not going to again make much difference
in the real world of schools and classrooms. If anything,
it might make life a little bit more difficult for
people at the state and local level that now have
to deal with even more federal agencies than they do today.
But if you're looking to improve student achievement, to improve

(24:56):
our schools, to reform this school system. Number one, we
shouldn't look to Washington. And number two, we shouldn't expect
this activity around the Department of Education to do a
whole lot to help or hinder that cause. The actions
at the state and local level. Unfortunately, at the state
and local level, at least in blue states, is where

(25:16):
the teachers' unions are the strongest, and that is where
the real efforts got to be. This is mostly a
side show.

Speaker 3 (25:24):
Thanks, thank you, thank you, Michael David.

Speaker 4 (25:27):
Thank you, thank you so much, Bob, thank you to
the Federalist Society. On the direct question of whether the
Trump administration can close down the Education Department by executive order,
the answer is, God bless them. I hope they can,

(25:47):
and if they can't, then we need to think about
the plan b And I guess I want to say
it's always been a question whether you could do it
by executive order alone. NAS has basically been saying it's
sure to go by statutory reform in the long run,

(26:09):
So if it doesn't work out the executive order, that's
always the thing to focus on. I guess I would
say that our general focus is to make sure that
this substance of education reform, you follow through in all
the details and don't let the don't let bad stuff continue,
even if the Education Department has been formally closed, So

(26:34):
that would mean we think it's terribly important to shut
you remove the statutes authorizing an awful lot of the
small programs from the Education Department, because the lack of
accountability is directly the result or there being so many
dozens of programs you can't figure out what they do,

(26:56):
and then every single one of these programs can then
be a top for some sort of regulatory shenanigans from
the OCR It's the sheer complexity of it that makes
it an unaccountable bureaucracy. So we're very strongly in favor
of concentrating on statutorily removing all of the as many

(27:16):
small programs as you can and making that a priority.
We're then also worried the fat transfer transplant problem. What
happens if you shut down the Department of Education, but
every little bureaucratic program simply continues doing the same thing
in the Department of Health and Human Services, in the

(27:38):
Justice Department, and so on. Frankly, the reduction in force
answered that a great deal but that's also being challenged
by in the courts, so we can't at this point
tell if that will stick. And I guess I just
say it's very important to make sure that the little
evil doing bureaucratic cells don't continue somewhere else. I'd also

(28:01):
another big thing, watch out for the unfunded mandates, in particular,
I'm thinking about special education idea. There are these extraordinarily expensive,
intrusive unfunded mandates and special education. The federal government doesn't
have to spend a dime itself, but you know, pumpted

(28:23):
by lawsuit, the school districts and the states are responsible
for any enormous amount of spending, which is just growing
and growing and growing, like you know, every day. And
I want it to be sure that the education reformers
make sure that Congress doesn't think its job is done
if it shuts down the Department of Education. I want

(28:45):
Congress to feel responsibility about not shunting off responsible expensive liabilities,
undefined liabilities to the states and the localities. And the
last thing is actually a little counter to this, and
I must say this is obviously a great deal of policy.

(29:05):
The Trump administration is using the powers of the education
Department to finally, well, wail on Harvard, but generally to
try to address all of the distributed illiberal bureaucracies that
have sprung up, you know, in every state, in every locality,
in every private institution, and we need the Department of

(29:30):
Education is doing a good thing with that, and we
need to make sure that if the Department of Education
goes away, that the power to confront the distributed authoritarian
liberal bureaucracies still that that's that this can be done
somewhere in the federal government Justice Department elsewhere. Now that's it.

Speaker 3 (29:53):
Perfect, think, Dave Ken, I want to I want to
I want to return the conversation just to the to
the sort of the direct legal bodies of this issue
of the President dismantling the Department of Education that you
mentioned in the Department of Education Organization Act, and I
do think that that is sort of the central reference

(30:16):
point for the legal discussion. The DOO, as it's known,
has some fairly clear statutory mandates that there will be
a Department of Education, the determination made by Congress, and

(30:37):
that this Department of Education will have within it shall
have certain offices, it shall have a Deputy Secretary, it
shall have areas offices. Could you comment on that a
little bit, sort of walk people through exactly what is
required statutorily, and because I think that shows that this
is not simply a magic wand exercise as a party

(31:00):
within the President dictates that there not be a department
and we're done their statutory requirements and there are appropriations
that the company and that would would you talk a
little bit about that place?

Speaker 5 (31:15):
Sure? Yeah, So the Department of Ed Organization Act, it
sets up the framework for the Department that there shall
be a secretary, there shall be a deputy secretary, for example,
and there shall be assistant secretaries. It also sets up
the different offices within within the department elementary, secondary, post secondary,

(31:41):
AD and and many many others. It also gives a
hand to the department to exercise some discretion in additional
officers that they they wish to have. But but you're correct,
the statute does talk about the framework and saying there

(32:03):
shall be this office, that office within the department, that
sort of thing. In response to the question of can
the question presented, can the President shut down the Department
of Education? The answer is yes, but not without the
involvement of Congress. And so to completely disband the Department

(32:27):
would require an amendment or amendments to the Department of
Education Organization Act. The Department and the Secretary of Education
have indicated their willingness to work with Congress to achieve
their goals and to do that, whether it's downsizing or
whether it's complete closure. They've communicated their willingness to work

(32:51):
with Congress. Congress and Chairman Wahlberg of the Committee on
Education in the Workforce on which I work has communicated
his interest UH in the Committee's interest in working with
the Secretary and with the Department, and so it would
indeed require UH legislation. But in addition, there are other

(33:14):
authorities apart from the Department of Educational Organization Act. There's
interpersonnel agreements there, there are other provisions that give some
flexibility to the Department and and how it operates and
administers and manages it's it's day to day affairs. So
there's still some things the President can do without UH

(33:37):
statutory change.

Speaker 3 (33:39):
We'll talk about that in a minute, but I wanted
to I wanted to ask Jonathan Jonathan if you know,
to Mike's point, if into the into the point of
the executive order, which appears to state that appropriations will continue.
If we're going to dismantle the department and simply spread

(33:59):
very offices to different agencies or departments within the department
and the appropriations on federal appropriations for these educational programs continue,
why does it matter, I mean, what are we achieving?

Speaker 7 (34:16):
Well, first, the point that you make about the appropriations
continuing is an important piece of this lawsuit because they
do intend and understand that the agency will remain open
until they can have legislative help in closing the department.
But secondly, no, it wants the President and Congress work

(34:36):
together on a proposal to wind down the department. They're
not going to keep everything. No, they shouldn't write things
like Title II, which is for teacher training. Even those
who advocate for teacher training under title to look, if
you read the reports about the evaluations of this, even
they admit that the program doesn't work, they just call

(34:58):
for more money to keep it working. Title three, which
is money for students who don't speak English as a
first language, that needs to be cut. I mean, you
can go on down the list of various programs that
should be that should be closed. Some of the essential
ones that I said should remain are just that. I mean,
they are essential from OCR to the nation's report card.

(35:19):
But it's a pretty short list. And I'll say something
that you know, if people really need to pay, they
may chuckle at, but we are talking about closing an
Apartment of Education, and we're closer to it today than
we perhaps ever have been. And so what I'm gonna
say is even the student loan program right eventually that
you know, should move to whether it's SBA or Treasury,

(35:40):
and then we should get Washington out of the business
of being the number one provider of student loans across
across the country. So that is a huge program, right,
the biggest responsibility of within the department. Now even that,
so it's not just a matter of taking programs and
moving them around and take some of them, take the
essentials and move those, but then close the rest, say
the very quickly. Per Michael's point about the good that

(36:02):
was done in the nineteen fifties and sixties around civil rights,
agree completely, but I would add those were done without
a US Department of Education. Right by the same token
to David's common about the deal that's going on with
how the President is using the Department of Education to

(36:24):
take on universities. This is resulting in lawsuits, right Harvard
has already turned around and food Eventually this needs to
be handled by the Department of Justice or it will
need to be handled in court. You don't need a
Department of Education to do this long term. So it's
serving a purpose right now, It's not one that it
will need to serve forever. So I mean, look, I

(36:46):
would agree with Michael's point finally that you know, when
it comes to improving student achievement, which is what we
that's the bottom line of every conversation, right, or at
least it should be. It comes to K twelve, we
shouldn't look to Washington. We should be looking to the
states that are creating school choice programs that are available
to every child right across the state. Texas just did that.

(37:08):
New Hampshire just did that again, even after we had
West Virginia, Arizona, Florida. I mean, we can go down
the list of state lawmakers that have created expansive private
learning options on top of in many cases the charter
school options already available in states across the country. This
those things, that is the future of education policy. That

(37:30):
is what is going to move the needle for student achievement?

Speaker 2 (37:33):
Michael, do you have a response to me of that,
you know, I mean, look, I think we mostly agree here,
and I think we should talk a little bit about,
you know, what we should be rooting for here. Right,
it's a lot of political capital that the administration is
investing in this effort to try to break up the

(37:55):
Department of Education. And look, I think some of us
are a little bit surprised. Admit that. I am. I
thought that, like in the first term, this might be
something they talk about a little bit and then quickly
move past and go about their business because it's so
hard to do, because it does appear. Again I'm not
the lawyer on the panel, but it appears that you

(38:16):
really need Congress to do most of this. And what
do you get for it? You know, even if you
succeed and you dismantle the Department of Education, most polls
show that this isn't particularly popular. This isn't a hugely
winning issue. Maybe it's popular with some parts of the
president's space, but you know, at the end of the day,
it's not like it then leads to more options for kids,

(38:38):
or better schools or improve student achievement. If it does that,
it would be very indirect. So, you know, I think
there is this question about why is the administration so
focused on it? You know, I guess give them credit
for trying to follow through on a campaign promise, but
I would argue that some of this political capital could
be spent in better ways. I would like to see

(39:01):
more attention being given, as Jonathan said, to improving student achievement.
You know, could we hear more from the Secretary of
Education and from her top deputies about what is going
to take right now to address the country's learning loss,
which is still immense after the pandemic and after the
teachers' unions kept our schools closed for so long. Again,
if this is just a whole lot of work in

(39:23):
political capital for not much gain, you know, you can
ask what could that investment be better used for.

Speaker 3 (39:30):
Although I would say that she has spoken out of
favor of students further student achievement and workforce development and
things that are not necessarily in the front page of
the paper, right and she has spoken on those issues.
It's the other stuff that perhaps is sort of the

(39:52):
bright shiny object of the day, the deider theology stuff,
at all, of which is very important, gets most of
the presp you know, in Fairness to nursery has spoken
about that David you mentioned. Let me ask you this.
You've done a lot of work that's you're reimagining how

(40:13):
how this would work in terms of federal education policy
in where programs would go those which would be terminated.
Could you talk a little bit about about the work
you've done in that regard and sort of outline for us,
and you're thinking on if there's not going to be

(40:35):
an education department, then how federal education policy going to
work and where would these programs go if anywhere?

Speaker 4 (40:42):
Oh gull it? So all workforce education, you know, the
Department of Labor. Everything having to do with Indian education.
There's an entire duplicate bureaucracy within the Department of Education
and within the Apartment of Interior. Move merge everything which

(41:05):
is being done the Department of Education over to the
Department of the Interior. Arts education can go to the
National Education of the Arts, the Institute for Education Statistics,
which is by the way, yes, really important, not least
because state assessments of their own progress can be a
little dodgy. And it's good to have the federal information

(41:26):
as a double check on that. We were saying, Actually,
I think after the NSF has a social science the
National Science Foundation as a Social Science as a directorate,
perhaps that instead of the Census Department. I should say, however,
the Health and Human Service is an enormous amount the
rehabilitative services at least it doesn't things.

Speaker 3 (41:51):
Yeah sorry, yeah, so a special education at HHS. That's
sort of saying.

Speaker 4 (41:59):
And I should say there's also there's simplifications which don't
necessarily wherever they're done. For example, Title one spending now
has I think four different formula programs which have been
added over the years. They this should be amalgamated. There
should be one formula spending program. And again for accountability,

(42:22):
so that citizens and lawmakers can know precisely how this
darned machine works. Where the more moving parts you have,
the less democratic accountability you have. So it's reform within
as well as yes, slicing things to go to.

Speaker 3 (42:40):
Every other.

Speaker 4 (42:41):
Hey, look, the Defense Department has its own education system.
They should have full control over that. There we're still
doing stuff for like your Federated States of Micronesia. I
sort of think that could go to the State Department
at this point. Sorry, I it will take me the
next half hour to do our Sure.

Speaker 3 (43:01):
Sure, ken, I wanted to ask you. Uh So, we've
we've talked briefly about DOOA and the statutory requirements, and
there are some fairly specific mandates to the executive branch
by Congress and how to administer the programs and what
offices exist, what what give is there within the joints

(43:25):
of of not just the Department of Education Organizational Act,
but but you know, the federal law generally for the administration,
uh to to disband a particular office within the department
or to use certain types of agreements with other agencies

(43:45):
for those agencies to perform the tasks of the Education Department.
Any thoughts on that.

Speaker 5 (43:53):
Yeah, so there there are several different authorities that that
the Department of ED. Indeed, federal agencies in general can
rely upon if they wish to have, for example, interagency agreements,
agreements with other departments or agencies to do certain common

(44:16):
task or share in particular projects. For example, the General
Education Provisions Act has language in it and that's one
of one of the laws that provides for the administrative
kinds of things. That the Department does as it goes

(44:39):
about it's business. But there's a provision that allows for
agencies to share in projects of common interests where they
sign these memorandum understanding or other agreements where they agree
to do things of common interest. There's the Economy Act,
which allows for the purchase of goods and services UH,

(45:00):
for example, by one department or agency from from another
and to work out an agreement to do that. There's
even a separate provision in the Department of Education Organization Act,
but it's very constrained. There are a number of strings
and limitations attached to it, but there is some flexibility

(45:22):
within the the de E o A. And then there
there are statutes that deal with UH personnel and inter
governmental the inter Governmental Personnel Act, which allows for detailing
and transfer of employees between agencies UH that kind of thing,

(45:44):
So that so there is flexibility. You know, the the
the court in in Massachusetts, which is UH, the plaintiffs
there have challenged what the department is seeking to do.
You know, they've they've they've taken issue with with the

(46:08):
department carrying out it's essential functions and that kind of thing.
But but rightly structured agreements with other agencies can can
be a way to to to move things around, to
share in common functions, activities, that kind of thing.

Speaker 3 (46:26):
And it's interesting to note that in that in that
Massachusetts case, there there are filings that have been recently
made from the Department which indicate that the Education Department
is indeed using interagency agreements in a limited way. Uh
two uh operationalize this notion of dismantlement and specifically they're

(46:54):
they were uh but but that has been been enjoined
by the by by the court. But it's interesting to
note that they that is, the Department has attempted to
do this in two ways. One in relation to the
Office of Career, Technical and Adult Education, which administers sort

(47:15):
of the posts mostly post secondary grant programs relating to
technical and adult education. That they have entered into an
ia with the Department of Labor to perform certain tasks

(47:36):
or to manage certain programs formerly managed by the Department
of Education. And that they've entered into an intern agency
agreement with the Treasury Department, I believe for collections work,
which actually is not unusual that has happened in the past,
I believe well into the twenty first century. That was

(47:57):
a model where in the Education Department would would agree
with the Treasury Department to to UH institute collections work
on the federal student loan UH loan defaults. But it's
interesting to note that all that's all that's been a
joint I mean that has stopped in at the court

(48:18):
to stop all that in its tracks. Uh So that
I think bears watching up up the road. We have
we have some questions, and I thought we would get
into those now. The first question relates to returning education
authority to the states. What are the implications of returning

(48:40):
education authority to states and parents for school choice and
parental rights? Will eliminating the Education Department accelerate trends like
the expansion of the essays, charter schools and the like.
Thoughts on that, Mike might going to let you answer that.

Speaker 2 (49:00):
Yeah, I'll go first on this one. Look again, I
think it depends. We have to clarify we're talking about
getting rid of the federal role or getting rid of
the Department of Education. Right, So if the programs and
policies stay but go elsewhere, nothing much really changes in
the real world. I do think if you got rid
of the big programs. So for K twelve, you got

(49:20):
rid of Title I and all of the requirements that
came along with that, it would be significant. It would
mean less spending obviously, but it would also, for example,
remove the current requirements for annual testing in grades three
through eight and reading in math, a requirement that I
would argue still is important to have some transparency in

(49:41):
our public education system to know how things are going.
I'd also say on the charter school front, the federal
government has actually been very constructive on charter schools, going
way back to the Clinton administration, providing grant startup grants
for brand new charter schools before they open their doors
and can start receiving state and local money. I think
there's no doubt we would have many fewer charter schools

(50:03):
today if we didn't have that seed money. And so
that's another important one. But you know, beyond that, you know,
you go down the list and you say, look, most
of the action still is at the state and local level.
I mean, if you're an educational reformer, you know to
spend most of your time out in the state capitals
because that is where the real decisions get made. As

(50:24):
Jonathan said, states like Texas passing big school choice programs.
What I don't know is whether a change to the
federal role would spark more school choice necessarily. Again, I
don't if there's a connection there, I think is quite indirect.
It's more hope over experience. What matters for school choice

(50:45):
is whether advocates can win these fights at the state
capital level.

Speaker 3 (50:50):
Let me ask you there's a question here about if
if education is shifted to the states, how will they
fund education? Will the federal government provide fund that the
states need to help fund education. I think we've probably
discussed here. You know, what is the amount of federal
aid in K twelve?

Speaker 2 (51:11):
We look for K twelve, it's about ten cents on
the dollar. Okay, so ten percent of the money is
coming from the federal government. Was more than that in
some times of emergency, like after the COVID pandemic, and
there's a huge influx of spending, but about ten percent,
and so now that's not spread around evenly. In higher
poverty districts they get more money, and so it would

(51:33):
be a bigger loss. You know, you can find school
districts where get fifteen even twenty percent of their dollars
from the federal government. So and that money, you know,
it's depending on how you study. It's hard to study.
That money kind of gets lumped in with everything else.
If that money went away overnight, you would notice, and
it would probably do some real harm because our school

(51:56):
system is terrible at reducing costs in a positive way.
That said, most of the money, again, ninety percent of
the money is coming from state and local sources, and
so the federal government has often been the tail that
wags the dog. It really is not the major player,
at least in K twelve education.

Speaker 3 (52:17):
So let me ask that, maybe Ken you might, I'll
open this up to all of you. Can the reconciliation
process be used to abolish the department? Any thoughts on that?
We have a question in that regard.

Speaker 5 (52:31):
Yeah, I mean certainly the House did not pursue that.
You know, we primarily pursue changes in the higher education
space to achieve savings that could then be used for
extension of the tax code changes so that those do

(52:53):
not or did not disappear. You know, whether whether the
Senate chooses to do anything on that is an open question.
My sense is that there's enough otherwise associated with extending
the tax provisions and achieving savings to do that that

(53:17):
it would probably not get touched on or dealt with
on the Senate side.

Speaker 3 (53:23):
So if the department. One question here is if the
Department of Education goes away, he would be in the
best position to administer the PELL grants program. Is that
a job for Treasury? Is it a job for SBA
or someone else?

Speaker 4 (53:37):
David, Well, that was actually something we thought was frankly
better to just stick with education for the moment. Okay,
I must say the Heritage or Project twenty twenty five
wanted a completely autonomous agency in charge of distributing all

(54:00):
much money you'll all you know, undergraduate loans and grants
to prevent a redo of the pretty darn criminal actions
by the Biden administration. I must say that strikes me
as a good idea. The question we want now is
not who will administer it most efficiently itself, but who
will be immune from maladministration by a future and Biden

(54:25):
esque administration. So whoever it should be, it should have
the maximum autonomy and the maximum guidelines to make sure
that things are done legally.

Speaker 3 (54:35):
So, just in that thin I'd like to stress that
much of this discussion about diminishing the federal role in
education and just mantling the Department of Education generally kind
of overlooks the federal student aid component of this, and

(54:58):
certainly within you know, with a conservative libertarian circles, there's
a consensus that certainly on K twelve there should be
a devolution to the states on these issues, and you know,
less of a department role, if any, but on the
higher side of things when it comes to, you know,

(55:18):
futal support for little student loans and pelgrams, there seems
to be a consensus that the reality is that the
program is not going to go anywhere. And the question
that becomes, if you're not going to have an education department,
where does it go? And and David, you've touched on
this idea of a of a of an independent agency,

(55:41):
which which frankly is an idea that we at the
Defensive Freedom Institute have have pushed since our days working
for Betsy DeVos and the Education Department. Others have advocated
that Treasury would be the best vehicle. I haven't think
that would be other than for collections if very poor
site for federal student aid activity. Does anybody have any

(56:05):
thoughts on this issue? Before we were up. We had
a few more minutes, and I'd like to give an
opportunity for brief close or closing statements as well.

Speaker 4 (56:15):
I want to push back against that consensus. Actually they
maybe they're right. There may be a consensus that it's
difficult to do, but the National Assoization of Scholars is
certainly on board that we should get rid of most
federal student federal aid. It's the vast majority is simply
captured by university administrations. It's not really helping the students

(56:39):
at all. It's, if anything, super charging student debt. And
I guess i'd say, if you're going to include it
at all, it's absolutely vital to make colleges be co
responsible for student debts, to align student college interests with
student interests, and not just have the colleges and universities

(57:01):
be rating the federal government and the tax payer for
more money. So I just want to say we're certainly
in favor of something being done, whether or not we
think the federal government is going to do it anytime soon.

Speaker 3 (57:15):
I understood. So we have a few minutes. Let's have
some quick thirty minute excuse me, thirty second closings on
this Jonathan, thank you.

Speaker 7 (57:28):
So I agree, and thanks to David for a shout
out to Heritage Research on the issue of higher ED.
And it is true as Michael was saying, that the
school choice developments that we've seen in the last you know,
going on thirty plus years have come from states. Often,
I would say, because in spite of what Washington has

(57:50):
done to either regulate private schools or otherwise make it
difficult to have school choice program. So I think that
closing the Department of Education isn't going to help nor
hind necessarily. Well, it'll certainly help the growth of private
school choice because there will not be regulations from Washington
that schools need to be looking over their shoulders about
about who private schools may or may or may not

(58:12):
have to accept. And I was just re emphasized most
of the money ninety plus percent of per student funding
comes from state and local taxpayers, and Mike was right,
is not evenly dispersed. Those areas that have higher levels
of poverty do get more, but they also happen to
be the urban areas like La Chicago, New York, Miami, etc.

(58:34):
That tend to have low performing schools. So money and
increase federal money is not associated with improved student achievements.
We need to be looking to good policy, and closing
the department is the first one.

Speaker 2 (58:46):
Mike gol real quick, I should really just stop with
Jonathan telling me that I'm right. I love that I
think we met. Thanks Johnathan. But I think what folks
listening should really pay attention to, other than these debates
going on, is the annual appropriations process. That is where
Congress gets to decide how much to spend on these
big programs and those you know, dozens and dozens as

(59:08):
David said, of little programs. And it's our chance every
year to try to chisel away at that federal role
and try to make sure that it's you know, if
we're going to do things from Washington on education, that
they are things that are targeted and that are actually
making a difference for kids.

Speaker 4 (59:27):
David, that two things that you want to reduce, that
federal role in education above all, that does matter more
than the sheer name of the Department of Education. But
we can't get there if there's a third rail, and
we can't even think about things like getting rid of
the Department of Education, and we can't even think of

(59:49):
firing a single federal bureaucrat there that makes it impossible
for there ever to be reformed. The current attempt makes
it thinkable. It's shifted down overton window, and it makes
puts everything on the table. God bless them for trying.
I hope they succeed, and even if they don't succeed,

(01:00:10):
immediately by this means they really put made closing the
Department of Education thinkable and politically feasible, as I don't
think it would have been if they hadn't made up
who you can.

Speaker 5 (01:00:22):
Yeah, three things. One, there's been some discussion about the
federal support of education is only ten percent in terms
of money. That's true, but there are a multitude of regulations, guidance, documents,
subregulatory guidance that then direct states and school districts on

(01:00:44):
what they need to do, and that has become a
problem over time. Secondly, we talked about federal student aid,
whether that goes to SBA or Treasury. I'll say there
is strong support in Congress for federal student aid. And
as we're talking about reconciliation, there were a number of

(01:01:05):
important policy changes that were made and that hopefully we'll
be a part of the final Reconciliation Bill, so again
there's strong support. I think the federal student role AID
role will continue. And then lastly, back to the Department

(01:01:25):
of Educational Organization Act where we began. The intent was
that the federal role, federal involvement be supplementary to states.
Over the forty plus years that it seems to have
become shifted to the primary rather than supplementary role. And
again the enabling statute set things up so that states

(01:01:53):
and local communities it acknowledged that they are the primary
drivers of education and not the federal government.

Speaker 3 (01:02:01):
Perfect gentlemen, Thank you so much. I appreciate your time.
Sarah to you.

Speaker 6 (01:02:09):
Thank you so much, mister I Tell for moderating, and
thank you again to everyone on our panel for joining
us and for sharing your insights today. Thank you also
to our audience for tuning in and for your questions.
For more content like this from the Rerogatory Transparency Project,
you're at the Potter List Society. Please visit us at

(01:02:31):
rightprojects dot org.

Speaker 1 (01:02:32):
Thank you on behalf of the Federal Society's Regulatory Transparency Project.
Thanks for tuning in to the Fourth Branch podcast to
catch every new episode when it's released. You can subscribe
on Apple Podcasts, Google Play, and Speaker for lays from
our TP. Please visit our website at regproject dot org.
That's our egproject dot org.

Speaker 5 (01:03:01):
This has been a fedsock audio production

All Episodes

Deep Dive Episode 311 - Can the President Shut Down the Department of Education?

Episode Transcript

Popular Podcasts

Fudd Around And Find Out

Crime Junkie

24/7 News: The Latest

.css-15opob5{left:0;position:absolute;top:0.8rem;} All Episodes

.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Deep Dive Episode 311 - Can the President Shut Down the Department of Education?