Education in the First 100 Days of the Trump Administration Julia Martin jmartin@bruman.com www.bruman.com 2 3 1
4 Agenda The Administration s Efforts at Deregulation Congress and Reigning in Federal Power The Fight for What s Left Education So Far What to Expect Moving Forward 5 6 2
The Administration s Efforts at Deregulation 7 What s Behind It? Federalism Concept that most power should be seated at the State level Fewer decisions made by federal government More autonomy for individuals, corporations Less regulation/restriction 8 Incoming Administration President Trump (for the most part) toes Republican party line on limiting government Promised to limit size of federal agencies Promised to take power away from Washington and give it back to the people Most likely through State enforcement mechanisms Promised to eliminate or rescind overly restrictive laws and regulations 9 3
Executive Orders Regulatory Pause (1/20) Paused implementation of rules that had been published but had not yet gone into effect for 60 days after inauguration Including ESSA accountability regulations Though this ended up being moot Urges agencies to further delay/review individual rules Regulations includes guidance documents of general applicability and future effect Exceptions for health/safety/ national security 10 Executive Orders Regulatory Reduction For every new regulation published, two must be revoked Costs must be offset Memo from White House (4/6) Applies not only to interim and final regulations published in the federal register, but also significant guidance documents If a rule is required by Congress, still have to revoke 2 old ones If a rule is overturned by Congress (e.g. through CRA), qualifies as cost savings Agencies may bank cost savings toward a future year 11 Executive Orders Agency Reorganization (3/13) OMB must come up with new way to organize federal agencies/ programs Agencies have 180 days to come up with draft plans to improve efficiency, effectiveness, and accountability OMB published consolidated plan in Federal Register for public comment Within 180 days after completing public comment, must submit a complete reorganization plan detailing: o Whether some or all of the functions of an agency. Would be better left to State or local governments or to the private sector through free enterprise o Whether functions are justified by the public benefit [they] provide o Potential cost of shutting down agencies or offices 12 4
White House Memo Staff Reduction (4/12) Replaces 90 day hiring freeze put into place early in term Memorandum to agency heads outlines cuts based on skinny budget proposal 13% cut to education, including in staffing Agencies should "begin taking immediate actions to achieve near term workforce reductions." 13 Function of Government Regulation and Guidance Deregulation and flexibility 14 Under the Last Administration This is the first time that the supplement not supplant requirement contains a statutory directive regarding how an LEA must demonstrate compliance with the requirement. For this reason, the Department proposes these regulations to provide clarity about how LEAs can demonstrate that the distribution of State and local funds satisfies the funds based compliance test introduced in the law. (Introduction to now withdrawn draft supplement, not supplant regulations August 2016) 15 5
and the New Administration New ESSA State Plan Template Revision promotes innovation, flexibility, transparency and accountability, and reduces burden Contains only those descriptions and information that are absolutely necessary for the Department s consideration of each State s plan Removes regulatory requirements (statute only) Less information, please! States may have to adapt their answers to the revised requirements, but if a state submits a consolidated State plan per the revised template, the overall application they submit should be far shorter. 16 Congress and Reigning in Federal Power 17 Federalism (the Congressional Perspective) Republicans Limited federal government (in size and scope) Limited regulation/restriction Idea that market should be sole control on behavior of corporations/individuals Democrats Strong role for federal government in enforcing rights/norms Strong social safety net 18 6
Congressional Review Act Reaches back 60 legislative days New Congress given an additional 15 days Likely means everything issued since May/June 2016 Only useful during Presidential transition Rescinds regulation Prohibits agency from ever issuing substantially similar regulations on the same legislative text What is substantially similar? Only used once on DoL ergonomics regulations in 1996 19 Appropriations Powers Congress still has the power to render regulations unenforceable through appropriations Uses power of the purse to prohibit resources from being spent on certain items/ programs 20 REINS Act *Proposed only!* Expands definition of major rule Congress has 70 legislative days to vote on new rule If they don t approve, doesn t take effect President can require rule to take effect for 90 day period in an emergency Subjects all portions of rulemaking process to judicial review 21 7
Regulatory Accountability Act *Proposed only!* Health and safety standards must also take cost into account, adopt least costly rule Agencies must analyze substantial alternatives submitted by interested persons during rulemaking Ends Chevron deference 22 The Holman Rule First adopted in 1876, previously eliminated in 1984 Adopted through change to House rules in January Allows lawmakers to bring an amendment on an appropriations bill that may Reduce the number of federal employees in a particular agency or Cut the salary or compensation of any person paid out of the Treasury of the United States. 23 Eliminating Federal Agencies/Programs? H.R. 610 (Rep. Steve King, R IA) Would eliminate ESEA, child nutrition standards Turns money into a block grant for public schools, private schools, or home schooling Light on substance likely intended to be a message bill House and Senate have no appetite to revisit ESSA as implementation is just getting off the ground H.R. 899 (Rep. Thomas Massie, R KY) Would eliminate the Department of Education on December 31 st, 2018 No further details about transitioning out, what would happen to funding, no termination of grants (and therefore no accountability?) 24 8
The Fight for What s Left 25 Conflict to Come Note pull between executive branch (President/agencies) and Congress over policy President: regulations and executive orders Congress: control over past/future regulations States: role unclear are told there will be more decision making power 26 More State Power? Conversation about moving power down to State/local level leaves lots of unanswered questions How far will this go? Mostly, stuck working within confines of existing laws E.g. Sec. DeVos tells Brookings in March that she may condition approval of State plans on choice But ESSA specifically says plans must be approved unless they fail to meet requirements Also requires additional responsibility/ oversight Will this really result in more power? E.g. new ESSA State plan template says information about consultation is optional 27 9
Whose Job is it Now? Rep. Virginia Foxx (R NC) interview in Inside Higher Ed (November 2016) We need to look at the functions of the Education Department and see are there things that can be done at the state and local level that are now being done at the federal level. We will want to use [the Government Accountability Office] and the inspector general a lot more than we have. I have advocated for a long time that we beef up the staff of the GAO. I really and truly believe that the GAO really does very good work. 28 29 Balance of Government Clear top down accountability Shared power/responsibility (?) 30 10
Education So Far 31 Removal of Regulations Supplement, not Supplant withdrawn January 2017 ESSA Accountability nullified March 2017 HEA Teacher Preparation nullified March 2017 32 Suspension of Obama Era Guidance/Practices Guidance on accommodation of transgender students rescinded (February 2017) Disagreement on applicability of Title IX protections Disagreement on federal role in enforcing student rights There must be due regard for the primary role of the States and local school districts in establishing educational policy 33 11
Suspension of Obama Era Guidance/Practices Withdrawal of 3 previous letters on student loan servicing (April 2017) Procurement process had too many moving deadlines, changing requirements, lack of consistent objectives Withdrawal of guidance negate[s] any impediment, ambiguity, or inconsistency 34 Ending Extraneous Programs Ending four higher education experimental sites effective June 30th (April 2017) Program granted participating institutions of higher education (IHEs) a waiver from certain federal student aid rules (e.g. allowing colleges to limit the unsubsidized loans a student could take out) Also ended certain Pell/ work study initiatives Ended socioeconomic diversity grants known as Opening Doors, Expanding Opportunities 35 Role of ED Guidance/ requirements/ new programs You re on your own! 36 12
What to Expect Moving Forward 37 Appropriations FY 2017 Continuing Resolution (CR) through April 28 th Little room for sweeping changes Already 7 months into fiscal year Budget plan for fiscal year agreed to by last Congress, previous President Lingering issues Title IV funding 38 Appropriations FY 2018 President s skinny budget proposal sent to Congress in March Little detail May send additional information in May Shift $54 billion from non defense discretionary ( NDD ) spending into defense spending Desire to further cut federal budget through cuts to non essential social or arts programs NEA, NEH, CPB, etc. 39 13
Appropriations FY 2018 President s skinny budget, continued Would eliminate appropriations for programs including: Title IV, Part B (21 st Century) Title II (Teacher Preparation) SEOG Less potential for additional targeted cuts to certain programs (IDEA, maybe Title I) New initiatives More money for charter schools ($168 million) Additional funding for school choice $250 million for a new private school choice program $1 billion for Title I incentive program encouraging districts to adopt a system of student based budgeting and open enrollment 40 Appropriations FY 2018 Pushback from Congress: President is not in charge of appropriations We authorized those programs for a reason 41 Appropriations Sequestration Still technically operational until 2025 Sets caps on budget for Defense and Non Defense discretionary sectors Does not impact individual accounts (e.g. Labor HHS ED) or programs If cap is breached by appropriations bill, sequestration requires an automatic, across the board cut to reach cap 42 14
Funding Levels Relatively consistent appropriations Wild swings, zeroing out programs 43 K 12 Education ESSA was passed December 2015 Bipartisan, called a Christmas miracle Little appetite for change Little interest in reauthorizing/changing IDEA Focus is on funding law, not law s requirements Potential for action limited here 44 School Choice? Trump/DeVos suggest more money for school choice/vouchers Would require Congressional action Recent History not positive A PLUS Act (which would have allowed States to take ESSA money as block grant) Offered as amendment to ESSA Killed by Republican leadership, including Alexander over worries it would sink bill Has calculus changed now? Lack of time/interest key 45 15
Perkins House passed legislation to reauthorize the law 405 5 early in September 2016 Senate markup postponed, reportedly over Democrats concerns regarding Secretarial authority Committees say it s a priority, but High level of partisanship Will Congress have time? Will Senate be able to assuage Democrats fears of Secretarial restrictions? 46 Perkins Sample Secretarial limitations (more throughout draft Senate bill): Can t promulgate regulations that would: Add new requirements 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 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 47 Child Nutrition: House Partisan legislation passed House Committee in May 2016 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 Senate legislation introduced Tried to hotline into CR in September 2016 but failed 48 16
Child Nutrition House and Senate Committees both say they want to resume work But is it a priority? Can they come to an agreement with Democrats? 49 Low Priority Higher Education Act Provisions about student aid, cost, for profit schools certain to be controversial Concerns about losing younger voters IDEA Reauthorization 50 Other Legislative Priorities Potential reform of entitlements Medicare/ Medicaid/ Social Security Potential repeal of Affordable Care Act Approval of nominations Change in Senate procedural rules to eliminate filibuster for Supreme Court nominees the nuclear option 51 17
Congressional Mood Cooperation/ Compromise One party rule/ Obstructionism 52 Overall Uncertainty Regulations/ laws/ funding subject to change Less policy work in Congress Less money for federal programs Turf war over federal powers 53 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 attorneyclient 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. 54 18