Over and over again, Education Secretary Betsy DeVos deflected a barrage of pointed questions with one answer:
"Schools that receive federal funds must follow federal law."
Appearing Tuesday before a Senate Appropriations subcommittee, DeVos was asked repeatedly by lawmakers if, under a federal voucher program, she would prohibit private schools from discriminating against LGBTQ students and children with disabilities. Recent reports, including an NPR investigation of Indiana's voucher program, have documented private schools excluding these students.
When Democratic Sen. Patty Murray of Washington asked if private schools would be required to follow IDEA, the federal Individuals With Disabilities Education Act, DeVos began the pattern:
"Any institution receiving federal funding is required to follow federal law."
When Murray followed up, she got the same answer, again.
Later, Sen. Jeff Merkley, an Oregon Democrat, pointed out that federal anti-discrimination laws are "somewhat foggy" and asked DeVos if private schools that take federal dollars should be allowed to turn away LGBTQ students.
"Senator, I said it before and I'll say it again, that schools that receive federal funds must follow federal law," DeVos replied.
Later in the hearing, when Democrat Jack Reed of Rhode Island picked up the anti-discrimination thread, DeVos repeated the answer eight more times. At one point Reed, exasperated, asked: "But what does that mean?"
Now that's a good question.
No current federal law explicitly protects the rights of LGBTQ students. Put another way:
"The current state of federal protections for LGBTQ students is ambiguous," says Nathan Smith, director of public policy at GLSEN, a group that champions LGBTQ issues in K-12 education.
That ambiguity stems from this sentence in the law known as Title IX of the Education Amendments of 1972:
"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
A debate has raged through U.S. courts around whether "sex" includes sexual orientation and gender identity.
"The majority view of the courts right now is that transgender students are protected from discrimination by Title IX," says Seth Galanter, a former senior official in the Education Department's Office for Civil Rights under President Barack Obama. "The courts are more divided about whether LGB students are protected by federal law from discrimination. But there is a trend in the lower courts that they will be protected."
In an attempt to clarify this ambiguity, the departments of Education and Justice under Obama issued a "Dear colleague" letter, telling districts that Title IX's prohibition on sex discrimination "encompasses discrimination based on a student's gender identity, including discrimination based on a student's transgender status."
In February, the Trump administration rescinded that guidance (a move DeVos reportedly opposed.)
Further complicating matters, Title IX includes an exemption for private schools that are run by religious organizations, as is the case with many current voucher-accepting private schools.
So when it comes to a hypothetical federal voucher system, says Galanter, that "makes the question about whether Title IX prohibits discrimination against transgender kids or LGB kids kind of irrelevant."
In short, when DeVos says, "Any institution receiving federal funding is required to follow federal law," it's important to know that that law offers limited protections for LGBTQ students and an exemption for many schools.
Students with disabilities
When it comes to protecting students with disabilities from discrimination, schools take their cues from three separate federal laws: the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the Individuals With Disabilities Education Act. But civil rights experts say that, in a hypothetical federal voucher system, none would offer strong guardrails.
First, the ADA. Like Title IX, it includes an exemption for private, religious schools and thus limited protection in a voucher system.
Section 504 does not offer religious schools an exemption and would likely provide students with disabilities some protections from discrimination in a federal voucher program. But, says Galanter, "It generally is a low bar." That's because the law only requires that private schools that receive federal funds make "minor adjustments" to accommodate students with disabilities.
"Those schools must provide reasonable accommodations" for students with disabilities, says Julie Mead, a professor in the Department of Educational Leadership & Policy Analysis at the University of Wisconsin-Madison. "But they do not have to alter their existing programs or add anything to them. What that means is, if their existing program does not provide any special education or related services, then they don't have to provide any."
As for IDEA, the federal law that Sen. Murray invoked at the start of Tuesday's hearing, students with disabilities enjoy few if any protections once their parents voluntarily enroll them in a private school. If a student is placed in a private school by a public school that cannot serve her needs, then the child is still guaranteed a Free Appropriate Public Education. But that protection requires that parents work through the public school system.
At the end of a heated exchange with Oregon's Sen. Merkley, DeVos broke briefly from her line about federal law to assure lawmakers that "discrimination in any form is wrong. I don't support discrimination in any form."
What's not clear is how the Education Department would prevent discrimination in a federal voucher program, given the current limitations of federal law.
AUDIE CORNISH, HOST:
Education Secretary Betsy DeVos faced the Senate appropriations subcommittee this week. During her hearing, she was asked repeatedly if the Trump administration tries to create a federal voucher program, would she prohibit private schools from discriminating against students?
A recent NPR investigation into state voucher programs found schools excluding LGBTQ students and children with disabilities. And this was DeVos's answer.
(SOUNDBITE OF ARCHIVED RECORDING)
BETSY DEVOS: Schools that receive federal funds must follow federal law, period.
CORNISH: To explain what that means, here's Cory Turner of the NPR Ed team.
CORY TURNER, BYLINE: Must follow federal law, period - it sounds simple and forceful - turns out it's neither. And DeVos said it 14 times, prompting this exchange with Oregon Democrat Jeff Merkley.
(SOUNDBITE OF ARCHIVED RECORDING)
DEVOS: As I said before, and let me say it again. Schools that receive federal funds...
JEFF MERKLEY: Saying the same thing 10 times when you're not answering the question does not help.
DEVOS: ...Need to follow federal law, period.
TURNER: Here's what that really means. First, for LGBTQ students, no current federal law explicitly protects them from discrimination. The law that comes closest is called Title IX, but it only prohibits discrimination based on sex. There's no mention of sexual orientation or gender identity, which has led to big legal battles.
SETH GALANTER: The majority view of the courts right now is that transgender students are protected from discrimination.
TURNER: Seth Galanter was a senior official in the Education Department's Office for Civil Rights under President Obama.
GALANTER: The courts are more divided about whether LGB students are protected by federal law.
TURNER: In an attempt to clarify things, the Obama administration issued a dear colleague letter telling districts that Title IX's prohibition on sex discrimination should include gender identity. Many conservatives and some school leaders considered that overreach, and the Trump administration rescinded it.
Making things even muddier, Title IX also has an exemption for schools that are religiously controlled. And in many states, right now the lion's share of voucher schools are religious. And so Galanter says that makes this whole question about whether a federal law would protect LGBTQ students...
GALANTER: Kind of irrelevant.
TURNER: Now to students with disabilities. They're protected by three different federal laws. One of them, the Americans with Disabilities Act, also has an exemption for private religious schools. Another, called the Individuals with Disabilities Education Act, offers protections for kids in public schools but loses its teeth when parents choose to enroll their child in a private school. That leaves something called Section 504 of the Rehabilitation Act of 1973, which says...
JULIE MEAD: Any recipient of federal financial assistance may not discriminate on the basis of disability.
TURNER: Professor Julie Mead of the University of Wisconsin-Madison has studied state vouchers and the law. When it comes to a potential federal voucher program, Mead says Section 504 would require private schools to make minor adjustments for students with disabilities.
MEAD: But they do not have to alter their existing programs or to add anything to it.
TURNER: If a private school does not already offer special education services, Mead says the law would not require it.
MEAD: If I am a school leader, that permits me to control which students I serve by virtue of which programs I make available.
TURNER: At one point in this week's Senate hearing, DeVos went back and forth with Senator Merkley.
(SOUNDBITE OF ARCHIVED RECORDING)
DEVOS: I don't support discrimination in any form.
MERKLEY: Does your program ban such discrimination, yes or no?
TURNER: DeVos answered again that schools receiving federal funds would need to follow federal law, which, it turns out, is another way of saying no because when it comes to protecting vulnerable students in a voucher system, federal law has its limits. Cory Turner, NPR News, Washington.
(SOUNDBITE OF GLASS ANIMALS SONG, "POOLS") Transcript provided by NPR, Copyright NPR.