THE FEDERAL UPDATE 4
March 10, 2017
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From: Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen
Re: Federal Update
Date: March 10 , 2017
Senate Votes to Rescind Teacher Prep, ESSA Accountability Regulations 1
ED Updates McKinney-Vento Act Guidance 2
ED Pushes Back Gainful Employment Appeals Deadline 2
Democrats Request Hearings for Top-Level ED Nominees 3
CAP Report Critical of Voucher Expansion 3
Legislation and Guidance
Senate Votes to Rescind Teacher Prep, ESSA Accountability Regulations
The Senate took action this week to rescind two sets of education regulations under the authority of the Congressional Review Act – rules governing teacher preparation programs under the Higher Education Act (HEA) and regulations on accountability and State plans under the Every Student Succeeds Act (ESSA).
On the resolution to revoke the ESSA accountability rule, the Senate voted mostly down party lines, with only one Republican defecting to vote no – Senator Rob Portman (R-OH). The resolution to rescind the HEA regulations, which require States to report on the success of teacher preparation programs, was approved by a wider 59-40 vote margin.
Republicans argued that both sets of regulations represent an overreach by the federal government and that decision-making authority regarding education should be delegated to the States. The repeal of the ESSA regulations lends uncertainty to States, many of which have been working on crafting their State plans according to the regulations. Now States must rely on the statutory language of ESSA and any future guidance from the U.S. Department of Education (ED). ED reportedly plans to make public a new State plan template on Monday, March 13th.
The Senate’s action received mixed reviews from stakeholders. Many civil rights organizations and the American Federation of Teachers condemned the repeal of the ESSA regulations, noting concern that States will not be adequately held accountable to improve poorly-performing schools. In addition, the National Council on Teacher Quality opposed the Senate’s action on the teacher-preparation rules on the basis of transparency and accountability concerns, but the American Association of State Colleges and Universities praised the move and said it hopes to work with Congress to reauthorize the Higher Education Act this year and reset federal involvement in higher education.
The House passed both of these resolutions last month, so now the measures will be sent to President Trump who has indicated he plans to sign them.
Resources:
Alex Arriaga, “Senate Does Away With Obama Teacher-Prep Regulations,” Chronicle, March 8, 2017.
Emma Brown, “Senate Scraps Obama Regulations on School Accountability,” Washington Post, March 9, 2017.
Author: KSC
ED Updates McKinney-Vento Act Guidance
The U.S. Department of Education (ED) published updated guidance this week on the McKinney-Vento Homeless Assistance Act. The update added new questions to the frequently asked questions (FAQs) document that was initially produced last July.
The three new questions clarify issues surrounding the provision of transportation for foster and homeless students. Beginning on December 10, 2016, certain provisions in the Every Student Succeeds Act (ESSA) regarding foster and homeless students went into effect. ESSA modified the definition of “homeless children and youths” under the McKinney-Vento Act to remove the inclusion of students who are awaiting foster care placement. Those students are now served under the foster care provision in Title I of ESSA. The updated guidance clarifies that local educational agencies (LEAs) must ensure that students awaiting foster care placement who were permanently housed before December 10, 2016 are entitled to remain in their school of origin and receive transportation to that school, if necessary, for the rest of the academic year. Any students who receive permanent housing after that date, however, will be covered under the foster care provisions in Title I of ESSA.
The guidance also clarifies that LEAs are required to provide transportation for homeless students to attend extracurricular activities if lack of transportation is a barrier for those students’ participation.
Finally, the update provides guidance to States and LEAs on how to handle transportation costs when a homeless student with disabilities, whose individualized education plan (IEP) requires transportation as a related service, moves from an LEA in one State to an LEA in a different State. The guidance states that if it is determined that it is in a student’s best interest to remain in his or her school of origin located in an LEA in a different State from where the student resides, the two LEAs must still come to an agreement to cover the cost of transportation for the student to attend his or her school of origin.
The updated FAQs, which include new questions J-10, J-11, and J-12, are available here.
Author: KSC
ED Pushes Back Gainful Employment Appeals Deadline
The U.S. Department of Education (ED) announced this week that it would give colleges and universities additional time to file appeals under so-called “gainful employment” regulations.
The regulations say that if programs fail to meet certain benchmarks within three years, ED can prohibit students there from taking out federal loans and grants. In January, ED released the first year of debt-to-earnings data, identifying 800 programs in danger of failing the test if they do not meet benchmarks again, which could happen as early as this year. But schools may appeal the determination and data used if independent auditors can show that the information is flawed. The original deadline for filing appeals was March 10th, but ED says that it will now give schools until July 1st to file appeals. However, schools appealing the data and determinations must already have filed an intent to appeal in late January – this announcement does not change that deadline.
“This action is taken to allow the Department to further review the… regulations and their implementation,” ED said in the announcement. Though the new administration has not announced definite plans to amend these regulations, the rules themselves are controversial and have drawn objections from a number of institutions, as well as Republicans in Congress.
Resources:
Josh Mitchell, “Trump Administration Delays Enforcement of Obama-Era Rules on For-Profit Colleges,” Wall Street Journal, March 6, 2017.
Author: JCM
News
Democrats Request Hearings for Top-Level ED Nominees
Seven Democratic Senators sent a letter this week to Chairman of the Senate Committee on Health, Education, Labor, and Pensions Lamar Alexander (R-TN) requesting that he hold hearings for top-level nominees at the U.S. Department of Education (ED), such as the Assistant Secretaries for Elementary and Secondary Education and Civil Rights. The Trump Administration has not yet announced any nominees for these high-level ED positions.
The Senators cite precedent for holding hearings for these top officials at ED, noting that the Committee took such action for certain nominees under both Presidents Bill Clinton and George W. Bush. In addition, they state that DeVos’ lack of experience and intention to rely on her staff to help “ensure that federal monies are used properly and appropriately” warrants holding hearings for the nominees.
In response to the letter, a staffer from Alexander’s office said that "[o]nce the nominations are made, Sen. Alexander will confer with Sen. Murray and announce an appropriate process to ensure that the Secretary has the staff in place in a timely way to serve the nation's students." However, Alexander may be unlikely to give in to the Democrats’ request given that the Committee did not hold hearings on any of President Obama’s subcabinet-level nominees.
The Senators signing onto the letter included Elizabeth Warren (D-MA), Tammy Baldwin (D-WI), Bernie Sanders (I-VT), Al Franken (D-MN), Robert Casey (D-PA), Maggie Hassan (D-NH), and Chris Murphy (D-CT).
Resources:
Andrew Ujifusa, “Democratic Senators Seek Hearings on Education Department Nominees,” Education Week: Politics K-12, March 7, 2017.
Author: KSC
Reports
CAP Report Critical of Voucher Expansion
According to a report from the Center for American Progress (CAP), a left-leaning think tank in Washington, a national voucher program could be a crippling if not fatal blow to many of the small and medium-size school districts around the country. The report, "Vouchers Are Not a Viable Solution for Vast Swaths of America," examined the impact of a nationwide voucher program on three different classifications of districts based on the number of schools. This report comes on the heels of the President’s voucher proposal that he presented during his address at a joint session of Congress last month.
According to the report, 85% of the 11,200 districts considered (excluding regional education agencies and charter schools), specifically those where there are eight or fewer schools, vouchers are either "highly unlikely" to work, or "may not work." Even just slight changes in enrollment triggered by vouchers, according to the report, could "dramatically destabilize" districts and communities while ignoring the real problems these districts face, especially ones in rural areas. And the CAP report authors, Catherine Brown and Neil Campbell, also argue that a greater market demand for private schools triggered by nationwide vouchers won't necessarily be productive.
"There is also no reason to believe the new schools that crop up in response to the voucher initiative would be higher performing than the schools that are in operation today," Brown and Campbell write. The authors cite to a 2014 study of student performance data, but many critics have questioned the validity of that data.
While the report is highly critical of vouchers for private schools, they do highlight possible benefits of public school choice options. The report argues that charter schools have created high-performing options for millions of families across the country. The largest nationwide study of charter performance from Stanford University’s Center for Research on Education Outcomes found particularly strong outcomes for low-income black and Hispanic students and that recent improvements in charter performance are “mainly driven by opening higher-performing schools and by closing those that underperform.”
While the President has pushed for a national voucher program since the campaign, it is unclear if he has enough support in Congress to push a bill through. Even Republicans in Congress, especially those with large rural districts, question the viability of a national voucher plan. The issue may come up for debate soon, especially considering the fact that the voucher program is the only education policy that made it into the President’s recent address to a joint session of Congress. Whether or not it comes up as its own bill, or as part of the annual appropriations process remains to be seen.
Resources:
Andrew Ujifusa, “National Voucher Program Could Bleed Many School Districts Dry, Report Says,” Education Week: Politics K-12, March 6, 2017.
Author: SAS
The Federal Update has been prepared to inform Brustein & Manasevit, PLLC’s legislative clients of recent events in federal education legislation and/or administrative law. It is not intended as legal advice, should not serve as the basis for decision-making in specific situations, and does not create an attorney-client relationship between Brustein & Manasevit, PLLC and the reader.
? Brustein & Manasevit, PLLC 2017
Contributors: Julia Martin, Steven Spillan, Kelly Christiansen
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