The Potential Impact of Abolishing the Department of Education
| | Student Rights, Title IX
Although not yet completely abolished, the U.S. Department of Education will be stripped of much of its authority during the coming weeks of the Trump administration. How will that impact the rights and opportunities of students? As lawyers for college students who have focused our practice on enforcing rights provided to students, faculty, and staff under federal and state laws, the team at Nesenoff & Miltenberg has been watching very closely to see what will happen.
We know that changes in the law often open up rights in some areas while restricting them in others. It’s a balancing act that shifts according to political priorities. We always focus on helping our clients take advantage of the best available opportunities to enforce their rights in the current legal environment, but we look ahead to anticipate when new opportunities may become available and determine when it may be necessary to act quickly before an opportunity vanishes.
The Role of the Federal Department of Education
To understand the potential impact of life without the Department of Education, it is helpful to consider what the Department has been responsible for. Congress created the Department of Education in 1979, making it relatively new among Cabinet-level agencies. Up until the 1950s, education programs were primarily funded and managed by state and local governments. Federal funding of education began to increase in the 1950s, and as federal programs began to focus efforts on improving educational opportunities for low-income students and promoting equal opportunities for women and minorities, Congress consolidated functions spread among other federal agencies into a new Department which officially began operating in May of 1980. Since that time, agency functions have increased, and the Department’s share of federal spending has nearly doubled, reflecting its expanded role.
The Department fulfills a number of purposes under the umbrella of four main activities:
- Distributing federal financial aid for education, including creating policies to determine how funds should be distributed and monitoring how those funds are used
- Collecting and sharing data about education in the U.S.
- Identifying “major issues and problems” in education and focusing attention on those issues
- Enforcing federal statutes designed to prevent discrimination and provide equal access to education
If the Department is no longer able to undertake these functions, there is great fear that the many critical tasks will be left undone. However, diminishing or dismantling a federal agency does not necessarily mean that the laws traditionally enforced by that agency will be abolished or disregarded.
Changes to Student Rights and Protections
The Department of Education plays a crucial role in enforcing federal laws that protect students’ rights, including Title IX, which prohibits sex-based discrimination. To a certain extent, the Department also enforces rights protected under the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) in schools.
Abolishing the Department will lead to a decline in federal oversight and enforcement of these protections, leaving students potentially more vulnerable to discrimination and violations of their rights. However, since states have the primary responsibility for enforcing the protections of IDEA and enforcement of Title IX and the ADA could be undertaken by the Justice Department, the diminished role of the Department of Education may not leave as great a vacuum in enforcement as many fear.
Because the Department of Justice (DOJ) is not focused solely on educational issues, there are concerns that enforcement of civil rights protections in education could be fragmented under the DOJ. It will be more critical than ever for students, faculty, and staff to understand their rights and the mechanisms for enforcing them.
This starts at the school level, ensuring that schools have implemented proper rules for handling complaints and that they follow those rules. For instance, Title IX regulations include rules that require schools to clearly identify the institution’s Title IX Coordinator responsible for handling complaints. The rules also establish standards schools must meet to protect the due process and other rights of complainants and respondents when investigating and adjudicating complaints, particularly those involving accusations of sexual assault and other forms of sexual violence.
The rules remain in force unless and until they are changed through the formal rulemaking process. Changing the agency responsible for enforcement does not impact the rules themselves. Experienced student rights lawyers help students ensure that the schools respect their rights, and if they do not, then the schools can be held accountable through legal action, including lawsuits in federal court.
One feature that is likely to change with the role of the Department of Education severely reduced or abolished is that the Department will stop issuing “Dear Colleague” letters to provide guidance to colleges, universities, and other educational institutions clarifying how the schools should craft and implement their rules to comply with federal requirements. In the absence of this type of guidance, the legal precedent set through lawsuits enforcing civil rights may become more frequent and prominent. It may be necessary for more students to take their issues to the courts to decide to ensure that their rights are upheld.
Access to Financial Aid
The Department of Education administers federal student aid programs, including Pell Grants and student loans. Abolishing or diminishing the Department could disrupt the delivery of financial aid because the functions handled by the Department will still continue but under a different agency. The new processes and procedures that will need to be implemented could be disruptive for a considerable period of time, causing hardship to many. Lawyers for college students may be able to help students take legal action if their access to financial aid is unlawfully obstructed by the changes to the Department of Education.
Collection of Higher Education Data
Currently, the Department of Education collects, analyzes, and distributes information about the “condition” of education throughout the U.S. Data comes from a variety of sources, including direct student assessments, state reports, surveys, and reports from colleges and universities. This data is used to assess the performance of institutions and the effectiveness of policies. If the Department is no longer tasked with gathering and analyzing this data, this function may be fulfilled by other agencies, including the Department of Labor. If the information functions are spread among federal agencies, it could become more difficult for students and parents to gain access to information.
For instance, colleges and universities have an obligation to report information about the participation of male and female athletes in sports programs and the support provided to these programs to ensure that the schools are meeting their obligations under Title IX. If the Department of Education is no longer gathering and sharing this information, it may be challenging for students to determine whether a school is infringing their rights.
Increased State Control and Variability
Reducing or abolishing the Department of Education is likely to shift more control over education to state governments. While there are concerns that this shift could lead to greater variability in student protections and services across states, potentially creating disparities in educational opportunities, it is important to remember that primary responsibility for public education has always rested with the states, so the change may not be as significant as anticipated.
The federal role has primarily involved distribution of federal funding in a way that supports the priorities of the current federal administration. As noted above, the federal government started becoming more involved in education to help provide greater funding and equal opportunities for disadvantaged students. If these opportunities diminish under state control, student rights lawyers may be able to successfully challenge changes that create a disparate impact on vulnerable student populations. For instance, if a state is not properly administering the Individuals with Disability Education Act, designed to provide education tailored to the needs of students with disabilities at the K-12 level, then a lawsuit could provide relief for underserved students and their families.
Private Enforcement May Become More Critical
Reducing or eliminating the U.S. Department of Education does not mean that student’s rights have been removed. However, it may mean that students and their families will need to be more proactive in understanding and enforcing their rights under state and federal laws. Student rights lawyers have long understood the effective impact legal action can have not only for students involved in a particular case but also on the rights of all students in the future.
Without active oversight by the Department of Education, individual action may be the key to protecting students’ rights. At Nesenoff & Miltenberg, we’ve spent decades enforcing the rights of students, faculty, and staff on campus and in court, so we know that even when the Department of Education is operating at peak capacity, there’s no guarantee that rights will be respected. We work effectively to protect the rights and opportunities of those who study and work in the educational system. For a confidential discussion regarding your educational rights and how we can help you protect them, schedule a consultation with our team today.