Shift to Greater Flexibility Under Federal Grants Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Shift to Greater Flexibility Under Federal Grants Michael L. Brustein, Esq. mbrustein@bruman.com www.bruman.com

Are we witnessing the “Deconstruction of the Administrative State”? Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Are we witnessing the “Deconstruction of the Administrative State”? Brustein & Manasevit, PLLC © 2017. All rights reserved.

Does this mean no accountability? Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Does this mean no accountability? Block grants/revenue sharing No regs/no EDGAR No monitoring No OIG No single audits Not so fast!! Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Can Administration/ Congress turn back the clock to pre “Great Society” prior to Title I, VEA, IDEA, ABE, Pell? Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 “The Department of Education shall terminate on December 13, 2018” HR.899 Congressman Massie (R-KY) 2/7/16 Brustein & Manasevit, PLLC © 2017. All rights reserved.

Biggest Cut in Federal Workforce since World War II

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Administration proposes $54 billion cut to domestic (non-defense discretionary) programs 10% cut Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Majority of SEA/LEA professional staff positions assigned to federal subsidized programs! Are you looking for an alternative career? Brustein & Manasevit, PLLC © 2017. All rights reserved.

What can we learn from an historical context? Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 What can we learn from an historical context? BRUSTEIN & MANASEVIT, PLLC © 2017. ALL RIGHTS RESERVED.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” The Tenth Amendment Brustein & Manasevit, PLLC © 2017. All rights reserved.

Is education the responsibility of state/local government? Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Is education the responsibility of state/local government? BRUSTEIN & MANASEVIT, PLLC © 2017. ALL RIGHTS RESERVED.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 All states rely on state constitutions and state statutes to delineate education powers Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Courts have held that federal responsibility for education is constitutional under the “commerce clause” and funding is constitutional under “taxing and spending clause.” Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 States’ rights making a comeback: Federalism had been a right-wing cause – Secessionism Federalism now a left-wing cause  CALEXIT/BLUEXIT Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Because states and federal government involved in education for 50 years – is it possible to disentangle? Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Lamar Alexander advocated “grand swap”: Feds pay for Medicaid States solely responsible for education Brustein & Manasevit, PLLC © 2017. All rights reserved.

Federal vs State Role in Education Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Federal vs State Role in Education BRUSTEIN & MANASEVIT, PLLC © 2017. ALL RIGHTS RESERVED.

Department of Education 1867-1979 Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Department of Education 1867-1979 Created in 1867 Demoted in 1868 to USDE, minor Bureau – Dept. of Interior Transferred in 1939 to “Federal Security Agency” as USDE Federal Security Agency became Department of Health Education Welfare - 1953 Brustein & Manasevit, PLLC © 2017. All rights reserved.

U.S. Department of Education Organization Act Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 U.S. Department of Education Organization Act P.L 96-88 (1979) Opened May 4, 1980 3,000 Employees/ $12 Billion Budget Today  4,400 Employees/ $68 Billion Brustein & Manasevit, PLLC © 2017. All rights reserved.

Reduction in Force (RIF) Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Reduction in Force (RIF) The Reagan RIF Uptick in OIG The Single Audit Act A very complex process Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Growth at SEA Level Prior to National Defense Education Act of 1958 – SEAs very small In 1958, only 15 states had supervisors in math, sciences, foreign languages In 1963, only 3 states had specialists in preschool education Brustein & Manasevit, PLLC © 2017. All rights reserved.

Congress Accelerates SEA/LEA Growth Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Congress Accelerates SEA/LEA Growth VEA of 1963 – Sole State Agency Concept Title V of ESEA (1965) – Strengthen capacity of SEAs Section 1202 of HEA – P/S Commissions Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Exponential growth of Federal Categorical Programs (state plans) led to cloning at State/Local Agencies Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 “A Nation at Risk” – 1983 State Education Departments assigned much of the policy and program development work related to school reform Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 SEAs Now Contracting Reduction of Administrative Dollars Consolidation Attempts by Governors/Legislatives to downsize SEAs often become “political football” Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Funding Since 1980 Title I 1980 $2,731,651,000 1985 $3,200,000,000 1990 $4,768,258,000 1995 $6,698,356,000 2000 $7,941,397,000 2005 $12,739,571,000 2010 $14,492,401,000 2015 $14,409,802,000

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Funding Since 1980 (cont.) Pell Grants 1980 $2,157,328,000 1985 $3,862,000,000 1990 $4,804,478,000 1995 $6,146,845,000 2000 $7,639,717,000 2005 $12,364,997,000 2010 $22,794,816,000 2015 $28,856,352,000

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Funding Since 1980 (cont.) IDEA 1980 $1,194,025,000 1985 $1,471,440,000 1990 $2,162,027,000 1995 $3,294,959,000 2000 $5,971,763,000 2005 $11,673,606,000 2010 $12,587,035,000 2015 $12,522,358,000

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Funding Since 1980 (cont.) VEA/Perkins 1980 $784,041,000 1985 $842,148,000 1990 $936,723,000 1995 $1,107,847,000 2000 $1,188,150,000 2005 $1,326,107,000 2010 $1,271,694,000 2015 $1,125,019,000

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 Key Takeaways: Fewer Regs/Non Regulatory Issuances Fewer $ for Federal Program Reviews Fewer $ for OIG Investigations/Audits Cuts to Federal Programs 7/1/18 Leadership/Professional Development Innovation at State/Local Level No cutback to single audit or pass through monitoring Brustein & Manasevit, PLLC © 2017. All rights reserved.

Education: The New Federalism! Spring Forum 2017 May 10-12, 2017 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 © 2017. All rights reserved.