Education Law Update: DeVos 1.0

Now that Betsy DeVos has been (barely) confirmed as Secretary of Education, here are some of the policy shifts we can expect and that could have an impact on Education Law practice:

Washington will likely ease regulatory burdens on academic institutions…to the extent it can. However, this does not mean that the large number of campus compliance positions generated by the landmark Higher Education Act of 2008, which imposed more than 300 new regulatory compliance mandates on higher education, will go away. That law remains in place and has made colleges and universities more transparent, a development applauded by consumers regardless of political leaning. DeVos will not be able to change that trajectory, assuming she is even aware of the law.

Moreover, compliance mandates come from many different sources, the U.S. government being only one of them. State governments and private accreditation and sanctioning organizations are also important actors in the compliance mix.

Colleges will not be laying off their compliance staffs. Expect that compliance hiring will continue to be robust.

For-Profit Colleges Can Breathe a Sigh of Relief. The Education Department, which has been on a tear against for-profit institutions for most of the Obama years, will ease up on the pressure. Don’t expect any more “gainful employment” directives from Washington. However, the federal pull-back will energize state attorneys general (especially Democratic AGs) to rev up their scrutiny of these sometimes questionable outfits. New York AG Eric Schneiderman, for example, recently settled with DeVry Education Group over its allegedly misleading advertisements regarding post-graduation outcomes. DeVry settled with the Federal Trade Commission in late 2016 regarding similar allegedly misleading advertisements about employment and job prospects.

Expect the legal hiring impact here to be static.

Charter Schools Will Get a Boost. If DeVos is known for anything, it is that she was all in for charter schools in Michigan despite their often dismal performance and that her family poured a lot of its multi-level marketing (some critics call Amway a “pyramid scheme”) millions into them. Expect her to try to cascade a push for charter schools, parental vouchers, etc. nationally.

This portends well for attorneys seeking charter school company employment or representation, as well as public education advocates seeking to slow the cascade.

Public Schools under Siege. The other side of the DeVos pro-private education coin is her hostility to public schools. This might give some impetus to public education attorney hiring, accelerating the recent trend among America’s 14,000 school districts to bring more lawyers in-house. Only 9 percent of public school funding comes from the federal government and is primarily directed at disadvantaged and disabled students. Nevertheless, you can expect a more adversarial relationship to develop, one that has not existed in the 21st century.

Don’t overlook opportunities to go to work for special interest education organizations, such as the National Education Association, United Federation of Teachers, and many, many others.

Civil Rights Enforcement Will Take a Back Seat. One of the largest education law employers that may be adversely affected by the new regime at the Education Department is its Office for Civil Rights, by light years the largest such office in the U.S. government. Devos and her horseholders are not exactly big fans of aggressive civil rights enforcement.