Donald Trump’s pick for education secretary, Betsy DeVos, has proven to be polarizing.

Teachers, unions, and public-school advocates have argued that DeVos wants to see public education dismantled. They point to the fact that the Michigan billionaire, and the education-advocacy groups she funds, have pushed to funnel public dollars away from traditional public schools and into charter and private schools. DeVos’s proponents, however, argue that adult interests have taken over the education arena and that the nominee supports school choice because the traditional public-education system has failed kids. “Detroit Public Schools are academically and financially bankrupt, and they’ve lost the privilege of educating children in Detroit,” Gary Naeyaert, the Executive Director of the Great Lakes Education Project (GLEP), a charter-advocacy group DeVos bankrolls and helped govern until November, wrote in a 2015 press release describing a plan to “relieve DPS of all teaching responsibilities.”

While previous education secretaries, including the Obama appointees Arne Duncan and John King, have endorsed models such as charter schools, DeVos has been scrutinized for her connection to unfettered charter growth in Detroit, where—over two decades after Michigan’s charter experiment began—the competition enabled by school choice generally hasn’t lived up to the promise of better options.

More than half of Detroit’s school-aged students attend a charter school, but last year fewer than 1 percent of the city’s schools were given an A or B+ grade, according to Excellent Schools Detroit, a clearinghouse for school shoppers in the Motor City. Eighty percent of the state’s charter operators are for-profit, which not only reduces financial accountability, but has also earned Michigan a nickname as the “Wild Wild West” for education. In 1999, researchers from Michigan State University assessed charter-school laws across the nation and concluded that Michigan—along with Arizona and Delaware—had the most permissive charter-school laws in the nation, noting that in the Mitten anyone can start a school, and that there are very few boundaries when it comes to who could authorize a charter school.

That second factor has proven to be one of the touchiest. Today there are 45 different charter-school authorizers in Michigan—one of the highest numbers nationally—and there is still no comprehensive, or precise, statute detailing what their oversight should look like. In 2014, the National Association of Charter School Authorizers gave Michigan only three out of 27 points when it measured the state’s authorizing policies against the organization’s own best practices. That same year the Detroit Free Press published a year-long investigation into the state’s charter sector, highlighting mismanagement, sinking accountability, and flaws in oversight.

DeVos’s role in fostering this unregulated environment has become particularly important as of late. Detractors point to the fact that, in 2011, GLEP successfully killed a provision that would stop failing schools from duplicating; this past year, the organization helped stop the creation of the Detroit Education Commissions (DEC), a panel that would have overseen school openings and closings in Detroit, arguing that the commission would hurt charters by prioritizing the stability of district public schools. DeVos advocates, however, remain steadfast that she is being unfairly labeled as anti-oversight. They cite DeVos’s support last year of legislation that would create of A-F letter grades to hold schools accountable and enable automatic closures of persistently failing ones in Detroit.

“Organizations supported by DeVos backed an A-F report card for schools, a ban on authorizer shopping and automatic closure for poor-performing charter schools. That sure doesn't sound like opposing ‘any regulation,’ does it?” Dan Quisenberry, the president of the Michigan Association of Public School Academies wrote in a December letter to The New York Times following the publication of an article that documented DeVos’s push to eliminate the DEC.

To get a better understanding of what DeVos proponents are talking about when they say she supports accountability, I decided to zero in on the part of the 2016 law cited by Quisenberry that details how Michigan handles failing schools. Looking at the legislation, which was introduced by freshman Republican State Representative Daniela Garcia, who received $18,000 from DeVos family members, I found an ambiguous set-up with numerous loopholes.

While the federal Every Student Succeeds Act allows states to design their own accountability policies, dissecting how the DeVos-backed Michigan law does, and doesn’t, hold schools accountable may help illuminate how she could approach the issue from the bully pulpit. Provisions from the law appear below in grey, with explanations of the resulting loopholes immediately following each passage. DeVos declined to comment for this story, with a spokeswoman for the Trump transition team writing, “The Secretary designate is not granting interviews at this time.”  

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Sec. 507 (5) Except for a public school academy that is an alternative school serving a special student population, if the state school reform/redesign officer determines that a public school academy site that has been operating for at least 4 years is among the lowest achieving 5% of all public schools in this state for the immediately preceding 3 school years, as determined under section 1280c, not to include any individualized education plan subgroup, the state school reform/ redesign officer shall notify the public school academy’s authorizing body. Also, except for a public school academy that is an alternative school serving a special student population, after the accountability system under section 390 has been in effect in the community district for at least 3 full school years, if the state school reform/redesign officer determines that a public school academy site located in a community district has been assigned a grade of “F” under section 390 for the immediately preceding 3 school years, and is not currently undergoing reconstitution under this section, the state school reform/redesign officer shall notify the public school academy’s authorizing body. Subject to subsection (6), if an authorizing body receives notice from the state school reform/redesign officer under this subsection, the authorizing body shall amend the public school academy’s contract to eliminate the public school academy’s authority to operate the existing age and grade levels at the site and the public school academy shall cease operating the existing age and grade levels at the site, effective at the end of the current school year. Subject to subsection (6), if the public school academy operates at only 1 site, and the authorizing body receives notice from the state school reform/redesign officer under this subsection, the authorizing body shall revoke the public school academy’s contract, effective at the end of the current school year.

If a charter school in Detroit gets an F grade three years in a row, the state must notify the school’s authorizer. (Authorizers in Michigan are entities tasked with overseeing charters, such as a school district, public university, or community college. They get up to 3 percent of the state aid each charter school receives, in exchange for their sponsorship.)  The law does not not say the authorizer must close the charter once it learns of the status. Rather, it instructs the authorizer to amend its contract with the school to eliminate the current age and grade levels it is currently teaching. Hypothetically, this could mean if a failing charter teaches grades kindergarten through five, rather than close the school the authorizer can just amend the contract to let the school teach grades six through nine.

Sec. 507 (6) For a public school academy or site that is subject to a notice to its authorizing body under this subsection, the state school reform/redesign officer shall consider other public school options available to pupils in the grade levels offered by the public school academy or site who reside in the geographic area served by the public school academy or site. If the state school reform/redesign officer determines that closure of the public school academy or site would result in an unreasonable hardship to these pupils because there are insufficient other public school options reasonably available for these pupils, the state school reform/redesign officer may rescind the notice. If the state school reform/ redesign officer rescinds a notice subjecting a public school academy or site to closure, the state school reform/redesign officer shall do so before the end of the school year. If the state school reform/redesign officer rescinds a notice subjecting a public school academy or site to closure, the state school reform/redesign officer shall require the public school academy or site to implement a school improvement plan that includes measures to increase pupil growth and improve pupil proficiency, with growth and proficiency measured by performance on state assessments.

If the state’s School Reform/Redesign Office, which was placed under the Republican governor’s purview in 2015, decides that closing a charter would “result in unreasonable hardship” for students or that there are “insufficient other public school options” available, the office can rescind a closure notice and instead put the failing charter on a school-improvement plan.

Sec. 507 (7) Except as otherwise provided in section 502 or 503, the decision of an authorizing body to issue, not issue, or reconstitute a contract under this part, or to terminate or revoke a contract under this section, is solely within the discretion of the authorizing body, is final, and is not subject to review by a court or any state agency. An authorizing body that issues, does not issue, or reconstitutes a contract under this part, or that terminates or revokes a contract under this section, is not liable for that action to the public school academy, the public school academy corporation, a pupil of the public school academy, the parent or guardian of a pupil of the public school academy, or any other person.

Unless the charter school is authorized by a traditional public-school district (which applies to fewer than 15 percent of the charters in Detroit), the authorizers’ decision to close a school is “solely within the discretion of the authorizing body.” This means the accountability—i.e., the decision to close a failing school—is up to the authorizer. Authorizers have a monetary incentive to keep schools open, as they get a percentage of a school’s state aid.

This subsection also notes that the decision of the authorizer is “final,” “not subject to review by court or any other state agency,” and that the authorizer cannot be held “liable” for their decision. In layman’s terms, they are protected within law in the event that they make bad decisions.

Sec. 507 (8) Except as otherwise provided in this section, before an authorizing body revokes a contract, the authorizing body may consider and take corrective measures to avoid revocation. An authorizing body may reconstitute the public school academy in a final attempt to improve student educational performance or to avoid interruption of the educational process. An authorizing body shall include a reconstituting provision in the contract that identifies these corrective measures, including, but not limited to, canceling a contract with an educational management organization, if any, withdrawing approval of a contract under section 506, or appointing a new board of directors or a trustee to take over operation of the public school academy

Here the law says that instead of closing a failing charter, an authorizer may “take corrective action to avoid revocation.” The legislation gives some suggestions of how this could occur—such as appointing new board members or swapping out a management company—instead of closing the school.

This option comes with its own share of chaos and games. As a reporter in Detroit, I have written about how management company owners have been known to shuffle from one company to another in order to avoid responsibility but maintain control of a school.

Notably, the legislation also says that these moves—changing management companies, getting a new board—are just suggestions; the authorizer can ultimately come up with its own “corrective actions,” which leaves a lot of wiggle room.

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In addition to creating windows to get around closures, the law doesn’t apply accountability evenly—something that Naeyaert had said was important to his group and why it did not get behind the DEC. Rather, the law largely leaves a charter school’s fate in the hands of its authorizer, while traditional public-school closures are left to the state’s School Reform/Redesign Office. That office also has the option of rescinding a closure if it would create too much of hardship but doesn’t enjoy the kind of flexibility afforded to charter-school authorizers.

“There is a lack of equivalency that is indisputable in terms of organizational arrangement; you have different entities charged with the responsibility,” said David Arsen, a professor at Michigan State University who specialized in education policy and K-12 administration. “In both instances one is relying on the integrity and the fidelity of the operations of the respective organizations.”

Still, school-choice supporters in Michigan say there’s reason to have faith in the state’s authorizers. “Authorizers have really cleaned up their act. Very few problems that had been cited  two or three years ago—if any—exist anymore and nobody is talking about that,” said Eileen Lappin Weiser, a Republican member of the Michigan Board of Education who was recruited by Betsy DeVos to run for the position in 1998 and whose husband is a former chairman of the Michigan Republican Party and an influential donor.

In 2014, the Michigan Council for Charter School Authorizers announced plans to establish a voluntary authorizer accreditation system to ensure best practices were being followed, which signaled some hope. Only two of the state’s authorizers, however, have gone through with the process, and the 2016 legislation addressed accreditation minimally, only saying it was required if an authorizer wanted to open a new charter in Detroit.

While Arsen notes that authorizers can still do a good job holding schools accountable, he emphasizes the necessity in Michigan creating statutes that assure authorizers are acting in taxpayers and children’s best interest.

“Why,” he asked, “did it take 20 years to come up with features of charter accountability that still have so many loopholes?”