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From: Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen
Re: Federal Update
Date: January 4, 2019
Legislation and Guidance
Partial Government Shutdown to Enter Week Three
ED Rescinds School Discipline Guidance
Congressional Committees Have New Leadership, Members
Reorganization at ED Takes Effect Sunday
Congress and the White House failed to reach an agreement to end a partial government shutdown before the end of the year, which means that the new 116th Congress that convened this week has a tall task ahead of it.
With a Democratic majority in the House, new House Speaker Nancy Pelosi (D-CA) brought a package of funding bills to the floor yesterday evening that would fund the Department of Homeland Security at fiscal year 2018 levels until February 8th and fund the remaining federal agencies that are part of the shutdown at previously agreed-upon levels through the end of the fiscal year. Senate Majority Leader Mitch McConnell, however, has said he will not bring the legislation up for a vote in the Senate, and the legislation does not have support from President Trump.
At the core of the debate surrounding the government shutdown is the President’s demand for billions of dollars in funding for a southern border wall, which is strongly opposed by Democrats in Congress. A bipartisan meeting on Wednesday between top Congressional leadership and the President failed to resolve the disagreement. A second gathering at the White House Friday still left leaders at an impasse.
The U.S. Department of Education (ED) was fully funded for fiscal year 2019 in September and, therefore, is not impacted by the shutdown. With no clear end in sight, however, schools may be impacted by the U.S. Department of Agriculture’s closure with regards to school meals reimbursement. In a memo sent to Regional Directors on December 26th, USDA’s Food and Nutrition Service states that “funding has been provided for Child Nutrition Programs at least through January.” It is unclear if it means that there are funds available to issue reimbursements this month for meals served during December, or if it means that there are sufficient funds to reimburse meals served in January, should the shutdown last long enough to impact those reimbursements.
Burgess Everett, “Unprecedented: Shutdown Bleeds into New Congress,” Politico, January 3, 2019.
The U.S. Department of Education (ED) announced in late December that it would rescind guidance on school disciplinary policies issued in 2014 by the Obama administration. The guidance was issued jointly by ED and the Department of Justice. While it did not modify statutory or regulatory requirements, the guidance was controversial because it suggested that schools could violate federal civil rights laws if school disciplinary policies had a “disparate impact” on different groups of students, even if those policies were written without the intent to discriminate. In particular, it discouraged so-called “zero-tolerance” policies which resulted in suspension or expulsion for a student’s first disciplinary violation, based on evidence which suggested that students of color and those with disabilities were more often impacted by such policies.
The decision came after a yearlong examination of school safety policies and procedures by the Federal Commission on School Safety, housed at ED and overseen by Secretary of Education Betsy DeVos. “Every student has the right to attend school free from discrimination. They also have the right to be respected as individuals and not treated as statistics,” DeVos said in a statement about the rescission. “In too many instances, though, I’ve heard from teachers and advocates that the previous administration’s discipline guidance often led to school environments where discipline decisions were based on a student’s race and where statistics became more important than the safety of students and teachers.”
She also talked about the importance of State and local decision-making: “[o]ur decision to rescind that guidance today makes it clear that discipline is a matter on which classroom teachers and local school leaders deserve and need autonomy. I would encourage them to continue to implement discipline reforms that they believe will foster improved outcomes for their students.”
The administration is reportedly planning new guidance to replace the rescinded document. It is not yet clear how this would incorporate the principle of disparate impact, which was the basis of the previous guidance. This concept says that policies which impact groups of individuals differently – even if written neutrally – are a form of discrimination prohibited under the Civil Rights Act of 1964. The Federal Commission on School Safety report raised questions, however, about whether disparate impact analysis was supported by the Civil Rights Act, calling the interpretation of “questionable validity” and “dubious, at best.”
In the interim, the administration has issued a “Dear Colleague” letter and a brief FAQs document on racial discrimination and school discipline which describes the investigation process to be followed on school disciplinary complaints.
Andrew Ujifusa, “Betsy DeVos Revokes Obama Discipline Guidance Designed to Protect Students of Colors,” Education Week: Politics K-12, December 21, 2018.
Laura Meckler and Devlin Barrett, “Trump Administration Considered Rollback of Anti-Discrimination Rules,” Washington Post, January 3, 2019.
Anya Kamenetz, “DeVos To Rescind Obama-Era Guidance on School Discipline,” NPR, December 18, 2018.
Erica L. Green and Katie Benner, “Trump Officials Plan to Rescind Obama-Era School Discipline Politics,” New York Times, December 17, 2018.
With the new 116th Congress gaveling into session on Thursday, there are some fresh faces in the House and Senate Committees with jurisdiction over educational issues.
In the House of Representatives, the Committee on Education and Workforce became the Committee on Education and Labor with the approval of a new set of operational rules for the body. Because Democrats have taken the lead in the chamber, a Democrat – in this case, Representative Bobby Scott (D-VA) will be Chairman of the Committee. Scott has served as top-ranking Democrat in the Committee since the retirement of former Representative George Miller (D-CA) in 2015.
On the other side of the Capitol, Senator Lamar Alexander (R-TN) will continue to chair the Senate Committee on Health, Education, Labor, and Pensions. Senate Republicans have added two new members to replace retiring or departing members: Senators Mitt Romney (R-UT) and Mike Braun (R-IN). Democrats announced last month that Senator Jacky Rosen (D-NV) would join the panel, with Senator Patty Murray (D-WA) continuing to serve as Ranking Member.
The proposal to reorganize the U.S. Department of Education (ED), announced last year, is set to officially take effect on Sunday, but it is expected to take months to completely roll out the new structure.
The key changes to be made at ED include consolidating the Office of the Secretary and the Office of the Deputy Secretary, integrating the Office of Innovation and Improvement into the Office of Elementary and Secondary Education, and merging the Office of the Chief Financial Officer with the Office of Management to become a new Office of Finance and Operations. In addition, certain responsibilities of the Office of the Chief Information Officer, Office of the Deputy Secretary, and Office of Planning, Evaluation, and Policy Development will be shifted to the new Office of Finance and Operations. Finally, the Offices of the Chief Information Officer and Planning, Evaluation, and Policy Development will function under a new organizational structure.
Other changes are being considered by ED as well, such as eliminating the Office of English Language Acquisition, but these changes are not part of the plan being kickstarted on Sunday. ED’s plan has garnered significant pushback from stakeholders, education advocacy organizations, and Democrats in Congress. The new Democratic majority in the House is likely to pushback and call on ED officials to testify in front of the Committee on Education and Labor regarding these changes.
Kimberly Hefling, “Morning Education,” Politico, January 3, 2019.
To stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming webinars. Topics cover a range of issues, including grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming webinar topics and to register, visit www.bruman.com/webinars.
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 2019
Contributors: Julia Martin and Kelly Christiansen