By now, you have almost certainly heard that president-elect Trump nominated Betsy DeVos for the position of Secretary of Education last week Wednesday. DeVos is well-known for her activism promoting school choice via charter schools and vouchers, inspiring an outpouring of both hopes and fears following her nomination announcement. I want to offer something a little different by taking a step back to assess how easy it will be for DeVos to implement her school choice agenda as Secretary of Education (assuming the Senate confirms her nomination). The answer is less straightforward than you might think.

ESSA rolled back federal authority

The Every Student Succeeds Act (ESSA) shrunk the Department of Education’s scope of authority. Signed into law almost exactly a year ago, ESSA came on the heels of the No Child Left Behind (NCLB) era, which became associated with federal overreach and well-intentioned but ineffective mandates. ESSA decisively shifts a good deal of policymaking authority from the federal government to the states, particularly with regard to designing and implementing accountability systems. In terms of the Secretary of Education’s authority, ESSA specifically prohibits the Secretary from requiring states to adopt a specific set of standards. Further, the Secretary cannot require a state to adopt particular policies in order to receive flexibility from federal law via waivers (a rebuke of the Obama administration’s waiver strategy).

Elizabeth Mann Levesque Former Brookings Expert Student Support & Classroom Climate Consultant - University of Michigan

While the Department of Education retains oversight authority to hold states accountable for implementing ESSA, any Secretary hoping to use their office to mandate or prescribe specific policies will likely face an uphill battle. A case in point is current Secretary of Education John King’s embattled efforts to implement specific policies through the rulemaking process. Republicans in Congress and teachers’ unions, among others, have vociferously criticized King for overreaching his authority by proposing an Accountability and State Plans rule that includes what many see as additional requirements not mandated by ESSA.[1] With a Republican Congress, it could certainly be the case that DeVos would receive more latitude than Secretary King, given that her policies presumably align more closely with those of the Republican committee chairs. But after spending nearly a year criticizing King for overreach via the regulatory process, sudden deference to an activist Secretary would be an abrupt about-face. Such a strategy could leave Republican members of Congress open to charges of opportunism and government overreach as they look ahead to the 2018 midterms.

In short, even though DeVos is an outspoken advocate of school choice, the Secretary of Education lacks the authority to simply mandate policy changes to states. As a result, if she is to implement her policy agenda, it will require cooperation from governors, chief state school officers, and state school boards. The implication? Change, if and when it happens, will not occur quickly or uniformly.[2]

Fewer carrots, fewer sticks

In light of the reduced federal role in education under ESSA, perhaps the best option for DeVos to influence education policy is to incentivize state leaders to cooperate with her. Indeed, the Obama administration pursued this strategy through Race to the Top and the ESEA Flexibility waiver program. However, the Obama administration leveraged two factors to motivate this cooperation that the incoming administration will not necessarily have.

First, Race to the Top was funded through the American Recovery and Reinvestment Act, commonly known as the stimulus package. Similar funds are not currently authorized under ESSA. Unless Congress authorizes (and the President signs) an infrastructure bill, for example, that grants the Department of Education broad discretion over a large sum, it is unlikely that DeVos, as Secretary, would have access to the kind of resources that funded Race to the Top.

Second, ESSA fundamentally changed the policy environment, granting states much more flexibility than under NCLB. State leaders were eager to escape NCLB’s prescriptive accountability system. Ultimately, 43 states and D.C. agreed to the terms of Secretary Arne Duncan’s waiver policy in order to obtain this flexibility.[3] ESSA obviates the need for states to request this flexibility, leaving the incoming Secretary with a diminished bargaining position.

Policymaking opportunities remain

The limiting factor on how far DeVos can go in promoting school choice-friendly policies will likely be cooperation from governors and other state education leaders. Without the “carrot” of funding under Race to the Top or the “stick” of NCLB mandates, DeVos lacks leverage over governors who are not inclined to implement an aggressive school choice agenda. Cooperation, in this scenario, may look very different than it did under the Obama administration. Rather than relying on carrots and sticks, the predisposition of like-minded governors to implement policies that align with DeVos’s agenda may be key to securing cooperation from states.

Indeed, Republican governors will be natural allies for DeVos. These allies are plentiful; following the 2016 election, there are 33 Republican governors (or 34, depending on the outcome in North Carolina).[4] While changes to state charter policies often require the enactment of new laws or revision of existing laws, this may not be a problem for many Republican governors; after the 2016 election, Republicans enjoy unified control of the state legislature and governor’s office in 24 states.[5]

And despite the scaling back of the federal government’s role in education under ESSA, as Secretary, DeVos would certainly have many opportunities to shape the national agenda in terms of education reform. Under ESSA, the Secretary is responsible for approving state accountability plans, although states have much more leeway in designing these plans. In addition, ESSA consolidates a number of existing programs into a $1.6 billion block grant, and the Department will oversee dispensation of this grant, providing the Secretary with an opportunity to set a policy agenda. ESSA also provides for Education Innovation and Research Grants, and the Secretary could conceivably prioritize research on school choice programs. With 24 states controlled by unified Republican government and an additional 9-10 states controlled by Republican governors, DeVos would likely find many partners eager to pursue the opportunities she offered via these avenues.

Unified Democratic opposition, for a change

This is not to say that state-level change will necessarily be easy. In pursuing her agenda, DeVos and state-level allies will likely face opposition from two strong factions within the Democratic party: civil rights organizations and teachers’ unions. As I have written before, these two groups often find themselves on opposite sides of the issues when it comes to education reform. However, members of both constituencies have vocally opposed the expansion of charter schools. In October, the NAACP issued a resolution calling for a moratorium on charter school expansion, although civil rights organizations do not uniformly oppose charter schools. Teachers’ unions, for their part, often oppose school choice-based reforms. In her statement on DeVos’s nomination, Lily Eskelsen García, President of the National Education Association (the nation’s largest teachers’ union), criticized the school choice policies that DeVos supports in no uncertain terms.

Both teachers’ unions and civil rights organizations could pose a significant barrier to state-level implementation of DeVos’s agenda. Consider, for example, the failed ballot initiative in Massachusetts to lift the cap on charter schools in Massachusetts, which enjoyed the support of Republican Gov. Charlie Baker yet faced sustained criticism from teachers’ unions in the recent election.

Concluding thoughts

The discussion here provides a framework for assessing the potential for DeVos to pursue her agenda as Secretary of Education. Is she strongly in favor of school choice reforms, including charter schools and vouchers? Absolutely. Will she be working with a friendly Congress and many friendly governors? Without a doubt. So should we expect the number of charter schools and voucher programs to skyrocket in the near future? Not necessarily.

[1]Similarly, Sen. Lamar Alexander, Republican chairman of the Senate Health, Education, Labor, and Pensions committee, and the NEA stridently opposed Secretary King’s proposed rule on the Supplement Not Supplant clause.

[2] Note that during the election, president-elect Trump made a campaign promise to invest $20 billion in existing funds in school choice programs, including charters and vouchers. If he delivers on this promise, the implications, of course, would be huge. However, given the lack of policy details regarding this campaign pledge, it’s difficult to say where exactly this money would come from or how such a program would be administered. Given skepticism that this campaign promise will come to fruition, in part because it would require legislative action, in this post I focus instead on the more likely scenarios with DeVos as Secretary of Education.

[3] Washington state lost its waiver in 2014 for failure to comply with all the terms of the Obama administration’s ESEA Flexibility program.

[4]The governor of Alaska, Bill Walker, was elected as an Independent, although he was formerly a Republican. By some counts, then, there are currently 34 Republican governors, and potentially 35 if the Republican candidate wins the North Carolina election.

[5] Following the 2016 election, in total, Republicans control both chambers of the state legislature in 32 states.