A Whole New World? The Election, ESSA Implementation, and

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1 A Whole New World? The Election, ESSA Implementation, and Julia Martin, Esq. Other Washington Updates Congressional Updates BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 2 Congressional Schedule Left town last week in September Returned after Veterans Day, one week break for Thanksgiving Target adjournment for the year is December 16 th Current Congress can reconvene in new year but does not have to New Congress starts in early January Four weeks of session between the election and the end of the year BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 3 1

2 Appropriations Status Now under continuing resolution ( CR ) through December 9 th Extends current funding, authorizations Minus sequestration cut of 0.49% Breached sequestration cap by increasing non defense discretionary and decreasing defense spending Clean legislation No amendments or riders Leaves debate about actual full year funding levels for lame duck session BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 4 Appropriations timeline Timing and outcome of appropriations debate depends on election outcome Majority will game out best possible scenario based on majorities in House/Senate, White House Possible final, full year appropriations bill will come as late as late January/early February With interim CRs Big issues for debate: Flint water funding NDAA and exemptions to non discrimination clauses against LGBTQ individuals Legitimacy of election results/gop leadership? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 5 The Lame Duck Congress BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 6 2

3 Appropriations Issues for Education Less money at the LEA level for Title I? After School Improvement set aside, Direct Student Services Less money overall for Title IV Block granting No reauthorization of child nutrition programs (temporary extension instead) Rider on ESSA regulations? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 7 ESSA implementation oversight Both House and Senate Committee holding multiple hearings on ESSA implementation On impact/policy generally On specific items (e.g. proposed supplement, not supplant regulations) Senator Alexander (December 2015): Expect the federal role to be very different under ESSA ED need[s] to read the law carefully. And we expect them to do it and to follow the law, and there are specific prohibitions. We have an oversight responsibility. September 2016: Don t assume you can t do anything, and if ED rejects State plan, you can take the department to court, and I hope that you do. BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 8 Alexander s Threats Will use every power of Congress to make sure the law is implemented the way we wrote it, including our ability to use the appropriations process and to overturn such regulations once they are final Appropriations powers Can condition acceptance of federal funds by ED on non enforcement of rule Legal Action Congress has sued/joined suits over Congressional action Congressional record on disagreement Congressional Review Act (1996) Can overrule regulations within 60 days of publication of final rule through passage of a joint resolution Congressional resolution of disapproval must be signed by President BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 9 3

4 Perkins House passed legislation to reauthorize the law early in September Senate set to mark up draft legislation September 21 st, but postponed indefinitely Reportedly over Democrats concerns regarding Secretarial authority May or may not see reauthorization in lame duck session depends on whether two sides can reach compromise BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 10 Perkins Sample Secretarial limitations (many more throughout draft Senate bill): Can t promulgate regulations that would: Add new requirements that are inconsistent with or outside the scope of this Act Add new criteria inconsistent with or outside the scope of this Act Be in excess of statutory authority granted to the Secretary Can t prescribe: Specific performance indicators, targets, or levels of performance Approaches taken to ensure equitable access Indicators or measures of teacher/faculty education or quality The role of the Secretary in the identification and dissemination of the State target levels of performance shall be limited to providing technical assistance BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 11 JJDPA Reauthorization Supporting Youth Opportunity and Preventing Delinquency Act (H.R. 5963) Bipartisan: sponsored by Reps. Bobby Scott (D VA), Carlos Curbelo (R FL) Encourage collaboration among State leaders to create smooth transitions out of the juvenile justice system Require that State planning process is based on scientific knowledge regarding adolescent development and behavior Adds stakeholders to the required members of the State advisory groups including public defenders, substance abuse counselors, representatives of victim advocacy groups Increase the amount of training and technical assistance provided by the federal government (2% 5%) GAO and DOJ now able to assess compliance, take enforcement action Passed in House in late September marker bill? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 12 4

5 Child Nutrition: House Partisan legislation passed House Committee in May Controversial issues: CEP threshold from 40% ISP to 60% ISP Rokita: don t want to be giving wealthy kids free meals In exchange for increase in breakfast reimbursement? Fresh fruit and vegetable changes 3 year administrative review cycle 5 years Loss of carryover? Exempts student group fundraisers from standards Removal of paid lunch equity provision Pelosi: will see House floor over my dead body BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 13 Child Nutrition: Senate Senate bill introduced, passed Committee in January Attempted to hotline compromise bill into omnibus legislation in September Problems: No one saw compromise except select Senate staff, advocates Concerns about pay for: WH opposes if it means cutting WIC benefits Adds more controversial material to appropriations bill How to find compromise with very conservative House bill? CR text extends authorization for current bill Likely tied to appropriations through next September 30 th Possible action next Congress? Unclear BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 14 Looking Forward to the Lame Duck Congress Biggest priority will be appropriations Perkins (if compromise can be found on Secretarial limitations) Child nutrition, HEA unlikely (IDEA not even on radar) But possible in new Congress BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 15 5

6 and the Lame Duck President President s/administration s motivation to behave and be bipartisan largely disappears when election is over Could potentially see more actions that: Anger Republicans Strain limits of executive authority Staff/administrative capacity diminishes Potentially: Environmental actions? Action on for profit colleges? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 16 ESSA Implementation BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 17 Assessment Regulations Developed largely by negotiated rulemaking committee Cover: Locally selected assessments 8 th Grade Advanced Mathematics Assessments Innovative Assessment Pilot 1% Limitation on alternate assessments based on alternate achievement standards Few changes expected in final version BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 18 6

7 Accountability Regulations Areas of controversy: Requirement for a single, summative rating for each school Requirement for at least 3 levels of performance Improvement funding Schools identified for comprehensive intervention: minimum of $500,000 Schools identified for targeted intervention: minimum of $50,000 Likely to change in final version Reporting on per pupil expenditures Timeline for implementation Statute says interventions start in school year Draft regulations say interventions start in using data Two windows for submission in State plan: March and July of 2017 Possible area for change? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 19 Supplement, not Supplant ED issued regulations following failed negotiate rulemaking Statute says ED/States can only ask for assurances that the methodology itself is compliant; cannot ask for individual costs to be identified or prescribe methodology Goal of statutory provisions was to eliminate three presumptions of supplanting ED s proposal provides four options for compliance (comments due 11/7), to be met overall or by grade span Weighted student formula Personnel and non personnel expenditures State drafted funds based compliance test (OPTIONAL for State) Must be at least as rigorous as federal tests Special rule: per pupil expenditure test De minimis variation, special schools exception BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 20 Title II Guidance Largely restates statutory changes Encourages States and districts to use Title II funds to make sure students have access to effective teachers Evaluations are an allowable use of funds If creating teacher prep academies, look to charters for lessons on accountability Class size reduction an allowable expenditure, but LEA needs to show evidence Must meet ESSA s evidence based standard BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 21 7

8 Title III Guidance Overall purpose is to clarify use of Title III dollars now that accountability for English Learners has moved into Title I Overall, can use Title III funds for many of the same purposes as under NCLB, despite change, e.g.: Identification of ELs Notification of parents Developing assessments/ensuring alignment with State standards Reporting requirements regarding ELs and former ELs Title I funds may also now be used for these purposes as they relate to ELs An LEA may spend funds under both Title I and Title III on the same EL related programs or activities Title III s State and local cap on administrative costs applies only to direct administrative costs BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 22 Title IV Guidance Largely restates statutory language, with additional examples for allowable uses of funds For LEAs receiving $30,000 or more, must spend at least 20% on safe and healthy students 20% on well rounded education Some portion on technology (no more than 15% on infrastructure) But some activities can satisfy more than one requirement explain in application to State Distribution requirements only apply at LEA level, not at school/state level LEA has flexibility in determining the amount of funds to distribute to a school and for which activities, provided its determinations are consistent with its needs assessment and school prioritization BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 23 ED s ESSA Checklist DONE Draft Regulations: Accountability Assessments Supplement, not supplant Guidance Title II Title III Title IV TO DO Equitable Services guidance Maintenance of Effort guidance Allocation (Titles I,II) guidance BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 24 8

9 The Election BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 25 Public Policy Polling, July 2016: 43% Clinton 38% Trump 13% Giant Meteor hitting the earth 7% Undecided 26 The Presidential Election Hillary Clinton wins popular vote by <1% Trump got fewer votes than Romney in 2012 Donald Trump takes electoral college by wide margin ( ) Key States: Wisconsin (47.9% 46.9%, 4% to 3 rd party candidates) Michigan (47.6% 47.3%, 4% to 3 rd party candidates) North Carolina (50.5% 46.7%, 3% to 3 rd party candidates) Pennsylvania (48.8% 47.6%, 3% to 3 rd party candidates) The third party factor: 3 4% in many key swing States 21% for Evan McMullin in Utah, 9% for Gary Johnson in New Mexico BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 27 9

10 The New Department of Education New Secretary may be someone from outside the education world Trump had floated idea of Ben Carson as Secretary Gerard Robinson (former VA, FL chief) as spokesperson on education issues Structural impacts Elimination of ED as cabinet level agency? Reduce size of federal agencies, including ED ( streamline, at least ) Attrition or outright RIF? Brain drain Surrogates have suggested that OCR will be target Especially policies targeting disparate impact, transgender student guidance BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 28 Shift in Focus Equity Deregulation and States Rights BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 29 Impact on Policy ESSA Rollout Text of statute likely to be unaffected product of bipartisan compromise ground game of implementation may be target Emphasis on State/local autonomy, Secretarial restrictions Repeal/replacement of supplement, not supplant? Congressional Review Act a real possibility, pending timing of final regulation Review of accountability regulations? Focus on areas of flexibility Charters (plans for new $20b program), local funding flex pilot Higher Education Deregulation, roll back of actions more adversely impacting for profits Federal loan origination back to private banks? Will watch outcomes, employment, per surrogates BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED

11 Fallout in Congress Senate: Democrats gained 2 seats, now Shift in top HELP Democrat? House: Democrats gained 7 seats, now New Chair of Education and Workforce? But: Lack of united Republican front Pressure to endorse/vote for candidate (and the birth of support but not endorse ) Lack of united Democratic front New Democrats coming from districts that lean Republican and are more likely to push away from liberal Democratic leadership (i.e. Pelosi) BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 31 Fallout in Congress Opposition to second Ryan term as speaker? Mark Meadows (R SC) (Freedom Caucus member who led move to oust Boehner): A lot of people who believe so desperately that we need to put Donald Trump in the White House they question the loyalty of the Speaker. Calling for delay in election/caucus May oppose him on first ballot Long term opposition to Ryan Can only make policy by losing Republicans and using votes from Democrats Possibly violating Hastert Rule? Limited chances to do this Constitutional obligation to serve as Speaker of both parties BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 32 Fallout in Congress Likely results of conflict revisiting 2013? Conflict and opposition to most actions by the Speaker Potential challenge to leadership could split Republican party Adds to fears of being primaried Republican majority in House and Senate means legislating could be easier But will Democrats become party of No? BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED

12 Overall Education a little fish? With ESSA done, Congress will focus on: Appropriations/deficit/entitlement reform Repeal of ACA Partisan fights over Supreme Court, etc.. Policy making will focus on appropriations and must pass legislation over next few months Look for Perkins, HEA to be priorities in new Congress (move away from K 12) Focusing heavily on deregulation, State flexibility BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED. 34 Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. BRUSTEIN & MANASEVIT, PLLC ALL RIGHTS RESERVED