WASHINGTON — Education Secretary Betsy DeVos indicated discrimination in schools on the basis of sexual orientation is “unsettled” law and a matter for Congress and the courts to address — not her department.
After declining last month to say how she would handle allegations of private school discrimination under a federally-funded school voucher program, DeVos was pressed Tuesday on the topic by Democrats at a Senate hearing. President Donald Trump’s budget proposal sets aside funds to create a school choice program, but provides few details about how it would be run.
The education secretary repeatedly said that any school “receiving federal funding is required to follow federal law,” but said federal law is unclear on protections for LGBTQ students.
“On areas where the law is unsettled, this department is not going to be issuing decrees,” DeVos said. “That is a matter for Congress and the courts to settle.”
Later in the questioning, DeVos said she is broadly opposed to discrimination, but did not specify how she would handle cases brought to her attention.
“Discrimination in any form is wrong. I don’t support discrimination in any form,” she said.
Whether federal law protects LGBTQ students has become a hot-button issue. The portion of a 1972 education law known as Title IX bans discrimination “on the basis of sex,” but interpretations differ. Earlier this year, the Supreme Court declined to hear a case involving a transgender student and Title IX.
The questions came after DeVos declined in May to tell lawmakers whether federal funding for state-run voucher programs would be pulled from private schools that discriminate in admissions. She was specifically asked about an Indiana school receiving funds that denies admission to students who have LGBT parents.
She said states would be responsible to “set up the rules around that,” and that the department’s “Office of Civil Rights, and our Title IX protections, are broadly applicable across the board.”
On Tuesday, several Democratic lawmakers indicated they weren’t satisfied with her answers.
“I think that’s very important for the public to know, that today the secretary of education before this committee refused to affirm that she would put forth a program to ban discrimination based on LBGTQ status of students or ban discrimination based on religion,” Sen. Jeff Merkley of Oregon said.
Sen. Jack Reed called her answers on discrimination “rather cryptic.”
But the panel’s chairman, Republican Sen. Roy Blunt of Missouri, came to DeVos’ defense, citing a contrast with between her and the department leadership under President Barack Obama.
“Your predecessor wanted to write his own federal law. My impression is that’s not what you want to do,” he said.
“And the department in the past sent guidance letters — didn’t even want to go through the regulatory process that had input, sent guidance letters of what the secretary of education thought the federal law should say even though that clearly was not what the federal law did say,” Blunt continued.
When Blunt said he believed the guidance letters overstepped the role of the education secretary, DeVos replied, “I agree.”
The most high-profile of such letters was issued in May 2016 and ruled Title IX barred “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” The letter also said transgender students should be allowed to use bathrooms and locker rooms “consistent with their gender identity.”
After taking office, the Trump administration withdrew the guidance and said it needed to “further and more completely consider the legal issues involved.”
DeVos publicly supported the move, but argued against it behind closed doors during the decision-making process, two sources told CNN.