Post-Election Updates and Agenda for the Lame Duck Congress

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Presentation transcript:

Post-Election Updates and Agenda for the Lame Duck Congress Julia Martin, Esq. & Kelly Christiansen jmartin@bruman.com kchristiansen@bruman.com WWW.BRUMAN.COM

Appropriations Brustein & Manasevit, PLLC © 2018. All rights reserved.

Appropriations Fiscal Year 2018 Omnibus bill passed in March 2018 Boosts funding for most formula-funded programs Brustein & Manasevit, PLLC © 2018. All rights reserved.

Appropriations Fiscal Year 2019 Education funding bill passed on time in September Increases (again!) for many education programs Brustein & Manasevit, PLLC © 2018. All rights reserved.

Historical Funding Levels Brustein & Manasevit, PLLC © 2018. All rights reserved.

Moving forward… Sequestration is still alive! Budget Control Act of 2011 Imposed budget caps, mandatory cuts to federal spending Amended since 2011 to raise caps but extends sequestration February 2018 bipartisan budget deal raises caps again More funding for education Only a two-year deal  spending cuts in 2020? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Moving forward… President tells federal agency leaders to cut 5% next year Will Congress be on board? President proposed cutting 5% from ED for FY 2019 Instead, Congress increased ED funding by $581 million Brustein & Manasevit, PLLC © 2018. All rights reserved.

Impact of Midterms Brustein & Manasevit, PLLC © 2018. All rights reserved.

New political Balance House of Representatives Senate Source: CNN Brustein & Manasevit, PLLC © 2018. All rights reserved. Source: CNN

Potential Changes in Congress Congressional committee staff  increases for Democrats, decreases for Republicans New leaders for Education committees Bobby Scott (D-VA) for House Committee House Committee name change  Committee on Education and Labor New leaders for subcommittees Brustein & Manasevit, PLLC © 2018. All rights reserved.

New Policy Priorities With Democratic majority… Stepped up oversight of ED Secretary DeVos in the hot seat ESSA For-profit sector More money for upgrading schools Higher Education Act reauthorization Increased access to preschool and child care Limit use of federal funds for firearms Brustein & Manasevit, PLLC © 2018. All rights reserved.

New Policy Priorities BUT… With Republican-controlled Senate, how much can be accomplished? Could help lay the groundwork for major issues in 2020 Presidential election Brustein & Manasevit, PLLC © 2018. All rights reserved.

Reauthorizations HEA, IDEA Brustein & Manasevit, PLLC © 2018. All rights reserved.

Higher Education Act Top of the list for education reauthorizations for 116th Congress Previous bills could be used as base, but both very partisan PROSPER Act introduced Dec. 2017 by Virginia Foxx (R-NC) Aim Higher Act introduced by House Democrats in July 2018 HEA  generally very controversial legislation Brustein & Manasevit, PLLC © 2018. All rights reserved.

Individuals with disabilities Education Act Last reauthorized in 2004 No discussion of reauthorization Not on priority list for Democrats or Republicans Not expected to be addressed anytime soon Brustein & Manasevit, PLLC © 2018. All rights reserved.

Coming Next From the Administration Brustein & Manasevit, PLLC © 2018. All rights reserved.

The Department of Education Created by the Department of Education Organization Act in 1979 Began operating on May 4, 1980 Created after the Department of Health, Education, and Welfare was split into individual cabinet-level agencies Many offices within ED are mandated by organizing legislation Brustein & Manasevit, PLLC © 2018. All rights reserved.

What ED Looks like now… Office of the Secretary Institute of Education Sciences Office for Civil Rights Office of Communications and Outreach Office of Educational Technology Office of the General Counsel Office of Inspector General Office of Legislation and Congressional Affairs Office of Planning, Evaluation and Policy Development Brustein & Manasevit, PLLC © 2018. All rights reserved.

What ED Looks Like Now… Office of the Deputy Secretary (Mick Zais) Office of the Chief Financial Officer Office of the Chief Information Officer Office of Elementary and Secondary Education Office of English Language Acquisition Office of Innovation and Improvement Office of Management Office of Special Education and Rehabilitative Services Risk Management Services Brustein & Manasevit, PLLC © 2018. All rights reserved.

What ED Looks Like Now… Office of the Under Secretary Federal Student Aid Office of Career, Technical, and Adult Education Office of Postsecondary Education Center for Faith and Opportunity Initiatives White House Initiative on American Indian and Alaskan Native Education White House Initiative on Asian Americans and Pacific Islanders White House Initiative on Educational Excellence for African Americans White House Initiative on Educational Excellence for Hispanics White House Initiative on Historically Black Colleges and Universities Brustein & Manasevit, PLLC © 2018. All rights reserved.

Reorganization? Shrinking ED workforce Limited telework Closed cafeteria Proposed reorganization plan at ED Group staffers by responsibility, not program Move OELA and OII into OESE Should “consider which activities to terminate given reduced staffing resources” Reassign staff  “broaden our horizons” Government-wide reorganization Merge ED and DOL? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Results? Source: Federal Employee Viewpoint Survey (FEVS), 2012 - 2018 Brustein & Manasevit, PLLC © 2018. All rights reserved. Source: Federal Employee Viewpoint Survey (FEVS), 2012 - 2018

Results? Lower employee satisfaction Fewer staff (OESE down from 270 to 200) Less responsiveness to stakeholder questions Now seeking contractor to help with: Satisfaction Reorganization Efficiency Leadership The Department anticipates the following volume of projects each year:  2-5 major projects that have multiple phases EXAMPLES: - analyze FEVS scores and present the resulting analysis to the leadership team in 9 client offices - assist with the development of a strategic plan - support a workgroup for a series of meetings (agenda, facilitation, notes) - assist in documenting and improving internal processes through developing process maps and determining strategies to streamline work  6-12 small projects EXAMPLES: - produce a literature review - facilitate a meeting - customize a course  20-30 trainings that typically range in length from ½ day to 1 day, but could be as long as 5 days Brustein & Manasevit, PLLC © 2018. All rights reserved.

Substantive Changes New protocols for monitoring/enforcement Data-based  who is the biggest risk? Limited resources for technical assistance/guidance Less guidance, regulations Brustein & Manasevit, PLLC © 2018. All rights reserved.

Substantive Changes Updated OCR Case-processing manual (March 2018) Aimed at “speedy resolution,” “clearing backlog” No more systemic investigations unless specific to allegations More reasons to dismiss New: “no longer appropriate for investigation” Automatically dismiss cases from “frequent fliers” Lots of investigator discretion Brustein & Manasevit, PLLC © 2018. All rights reserved.

Substantive Changes Title IX and the shift in relation to transgender students Obama administration: gender identity is part of sex and therefore Title IX protects transgender students against discrimination Trump administration: Gender identity NOT part of sex and therefore not protected HHS memo: sex is an immutable biological characteristic How to accommodate transgender students should be a State/local matter Georgia district investigation Does a bathroom policy allowing students to use facilities aligned with gender identity create a “dangerous and hostile” environment for female students? Brustein & Manasevit, PLLC © 2018. All rights reserved.

Substantive Changes New standard for Title IX Sexual assault? Leaked draft (pre-proposed rule stage) Title IX of the Education Amendments of 1972 – discrimination on the basis of sex Mostly impacts IHEs Sexual harassment: “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” Previous standard: “unwelcome conduct of a sexual nature” Schools would be able to choose legal standard: “preponderance of the evidence” or “clear and convincing evidence” Brustein & Manasevit, PLLC © 2018. All rights reserved.

Substantive Changes Redefining Discrimination under Title IX? OCR investigating complaint by doctoral student at University of Southern California who applied, but did not get in to, Yale Says Yale discriminates against men by offering special scholarship a program to train women in campaigning Discriminatory because women make up majority of students – no longer underrepresented on campus Complaint: “Women are an ever-increasing majority in colleges… Male students are far more likely to drop out. Also, younger men are making less money than women despite working in more hazardous jobs.” Brustein & Manasevit, PLLC © 2018. All rights reserved.

deregulatory Changes Brustein & Manasevit, PLLC © 2018. All rights reserved.

Deregulation and Rescissions 2017 Executive Order: agencies should rescind or repeal guidance or regulations that are “unnecessary, outdated, inconsistent with existing law, or otherwise improper” So far: ED/DOJ Guidance on transgender students DOJ Guidance on race-conscious admissions policies in higher education Delay of “substantial disproportionality” IDEA regulations To be replaced Delay of “borrower defense” regulations Halted by lawsuit To be replaced by negotiated rulemaking Brustein & Manasevit, PLLC © 2018. All rights reserved.

Deregulation and Rescissions May be rescinded: school disciplinary guidance 2014 Obama-era ED/DOJ guidance reviewing laws and regulations on discipline Best practices Lists triggers for OCR investigations Part of charge of Federal Commission on School Safety is to examine guidance and determine whether to rescind it Would not impact actual law or policy, but would send message about enforcement Brustein & Manasevit, PLLC © 2018. All rights reserved.

Non-Guidance as Guidance Conscious choices in some cases not to issue guidance/regulations Title IVA use of funds for weapons purchases or training DeVos Letter to Congressional Dems: “Let me be clear: I have no intention of taking any action concerning the purchase of firearms or firearms training for school staff under the ESEA... Congress did not authorize me or the department to make those decisions.”  No Perkins regulations (or guidance of any kind) Rescinding, but not replacing, certain ESEA regulations Exception: supplement, not supplant (probably) Brustein & Manasevit, PLLC © 2018. All rights reserved.

“Chilling effect” “Public Charge” draft regulations published in October Institutes new formula for determining whether immigrant is likely to become a “public charge” Based on acceptance of monetized and non-monetized benefits over a certain timeframe Does not include benefits to household members, or those accepted before regulations implemented Significant discretion to immigration officers Anecdotal evidence: lower turnout in meal programs Families reluctant to provide information Brustein & Manasevit, PLLC © 2018. All rights reserved.

Shift focus to State/local Decision-making DeVos on immigration status reporting: “I think that's a school decision, it's a local community decision…. We have laws, and we also are compassionate.  And I urge this body to do its job and address and clarify where there is confusion around this.” ESSA “flexibilities” document and parent guide “Your State may choose…” “your state may decide…” etc.. Title IVA, Title IX: State and local decision-making On the other hand… more responsibility at State/local level! Brustein & Manasevit, PLLC © 2018. All rights reserved.

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.