DeVos: A Potential Grizzly Due Process Violation

By Victoria Garcia

Recently confirmed Secretary Betsy DeVos discussed many topics related to education during her confirmation hearing,[1] including the Individuals with Disabilities Education Act (“IDEA”)’s implementation.[2]  Congress created IDEA with the purpose to ensure “equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.”[3]  One of IDEA’s key components is to help individuals with disabilities become economically self-sufficient.[4]  By 2020, an estimated 65% of jobs will require a high school diploma.[5]  IDEA helps students with disabilities meet the future economy’s requisite.

Secretary DeVos emphasized the importance of allowing states to determine whether they will continue funding IDEA.[6]  When Senator Tim Kaine explained that IDEA is a federal law that requires states to provide resources to students with disabilities, Secretary DeVos emphasized that the decision should be left with the state.[7]  While IDEA is itself controversial,[8] the federal government created a property interest for students with disabilities that requires due process protections.[9]

The Fourteenth Amendment’s Due Process Clause states that, “. . .Nor shall any state deprive any person of life, liberty, or property, without the due process of law.”[10]  In Goss v. Lopez,[11] the Supreme Court determined that public education was a property interest under the Fourteenth Amendment’s Due Process clause.[12]   Although the court primarily focused on the student’s property interest at stake if suspended, it found that state laws established public education and compulsory attendance, which were benefits that the schools could not revoke without procedures to protect the students’ due process rights.  In comparison, the federal government created IDEA, which “requires schools to provide students with disabilities the same educational opportunities that they provide students without disabilities.”[13]  Despite states largely managing education,[14] Congress created benefits when it passed IDEA, which arguably provides similar property interests and due process protections as Goss v. Lopez.[15]

As a member of the Executive Branch, the Secretary of Education must execute laws created by Congress and IDEA falls within that purview.[16]  If Secretary DeVos allows states to decide whether they will provide resources to students with disabilities, then the Fourteenth Amendment requires the states to provide due process hearings for the students who would lose their constitutionally protected interests.[17]  IDEA emphasizes the importance of educating students with disabilities and empowering them to become economically self-sufficient and productive participants in the U.S. economy.   By 2020, an estimated 65% of jobs will require a high school diploma.[18]  If states do not uniformly apply IDEA, many students will not be able to satisfy the future economy’s requirements.  Subsequently, the quality of the U.S. workforce will decrease, leaving lasting impacts on individuals’ quality of life and the U.S. economy.

[1] See Corey Turner, School Vouchers, Oligarchy and Grizzlies: Highlights From The DeVos Hearing, NPR (Jan. 18, 2017 5:12 p.m.), (providing a transcript of controversial parts of DeVos’s hearing).

[2] 20 U.S.C.A. § 1400 (2010).

[3] Id (emphasis added).

[4] Id.

[5] Alliance for Excellent Education, The High Cost of High School Dropouts: The Economic Case for Reducing the High School Dropout Rate, (last visited Feb. 20, 2017) (hereinafter AEE).

[6] See Turner, supra note 1.

[7] See Turner, supra note 1.

[8] See generally Endrew v. Douglas Cty. Sch. Dist., 798 F.3d 1329 (10th Cir. 2015), cert. granted (determining what are the minimum benefits IDEA requires).

[9] See generally Goss v. Lopez, 419 U.S. 565 (1975) (finding that a student attending public school has a protected property interest that requires due process hearings if the right is being taken away).

[10] U.S. Const. amend XIV, § 1.

[11] See Goss, 419 U.S. at 574 (“Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest . . .”).

[12] See id.

[13] See Turner, supra note 1 (DeVos’s hearing transcript).

[14] See U.S. Const. amend X.

[15] Goss, 419 U.S at 573-74.

[16] See US. Const. art. II.

[17] See also Goss, 419 U.S at 573-74.

[18] AEE, supra note 5.

One thought on “DeVos: A Potential Grizzly Due Process Violation

  1. While controversial, it seems that IDEA is important enough that no immediate repeal effort is underway. DeVos’ comments also make me wonder if she honestly believes that this is a states rights issue, or if she wants to try and de-fund this law without suffering the backlash for advocating its repeal. Either way, the due process requirements now in place make her proposed delegation to the states unlawful, without Congress altering or repealing the law itself.

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