A Whole New World - Brustein & Manasevit · 3 To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016 Appropriations Issues for Education

1

To Accountability…and Beyond!!Brustein & Manasevit Fall Forum 2016November 30 – December 2, 2016

Julia Martin, Esq.

[email protected]

www.bruman.com

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

Other Washington Updates

To A c c o u n t a b i l i t y … a n d B e y o n d ! !B r u s t e i n & M a n a s e v i t F a l l F o r u m 2 0 1 6

N o v e m b e r 3 0 – D e c e m b e r 2 , 2 0 1 6

Congressional Updates

BRUSTEIN & MANASEVIT, PLLC © 2016. 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 16th

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


2



Appropriations Status

Now under continuing resolution (“CR”) through December 9th

◦ 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




Appropriations timelineTiming 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?




The Lame Duck Congress


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?




ESSA implementation oversightBoth 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.”




Alexander’s ThreatsWill “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


4



Perkins

House passed legislation to reauthorize the law 405‐5 early in September

Senate set to mark up draft legislation September 21st, 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




PerkinsSample 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”




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?


5



Child Nutrition: HousePartisan 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”




Child Nutrition: SenateSenate 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 30th

Possible action next Congress? Unclear




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


6



…and the Lame Duck PresidentPresident’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?




ESSA Implementation




Assessment Regulations

Developed largely by negotiated rulemaking committee

Cover:◦ Locally‐selected assessments

◦ 8th Grade Advanced Mathematics Assessments

◦ Innovative Assessment Pilot

◦ 1% Limitation on alternate assessments based on alternate achievement standards

Few changes expected in final version


7



Accountability RegulationsAreas 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 2017‐18 school year”

• Draft regulations say interventions start in 2017‐18 using 2016‐17 data

• Two windows for submission in State plan: March and July of 2017

• Possible area for change?




Supplement, not SupplantED 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




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


8



Title III GuidanceOverall 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




Title IV GuidanceLargely 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




ED’s ESSA ChecklistDONE

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


9



The Election


Public Policy Polling, July 2016:• 43% Clinton• 38% Trump• 13% Giant Meteor

hitting the earth• 7% Undecided

26



The Presidential ElectionHillary Clinton wins popular vote by <1%◦ Trump got fewer votes than Romney in 2012

Donald Trump takes electoral college by wide margin (279‐228)◦ Key States:◦ Wisconsin (47.9% ‐ 46.9%, 4% to 3rd party candidates)

◦ Michigan (47.6% ‐ 47.3%, 4% to 3rd party candidates)

◦ North Carolina (50.5% ‐ 46.7%, 3% to 3rd party candidates)

◦ Pennsylvania (48.8% ‐ 47.6%, 3% to 3rd 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


10



The New Department of EducationNew 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




Shift in Focus

Equity Deregulation and States’ Rights




Impact on PolicyESSA 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


11



Fallout in CongressSenate: Democrats gained 2 seats, now 51‐48◦ Shift in top HELP Democrat?

House: Democrats gained 7 seats, now 239‐193◦ 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)




Fallout in CongressOpposition 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




Fallout in CongressLikely 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?’”


12



OverallEducation 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




Legal DisclaimerThis 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.


Documents

A Whole New World - Brustein & Manasevit · 3 To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016 Appropriations Issues for Education