1. 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.

2. 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”?
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3. 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!!
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4. 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?
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5. 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
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6. Biggest Cut in Federal Workforce since World War II

7. Education: The New Federalism! Spring Forum 2017 May 10-12, 2017
Administration proposes $54 billion cut to domestic (non-defense discretionary) programs
10% cut
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8. 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?
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9. 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?
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10. 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
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11. 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?
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12. Education: The New Federalism! Spring Forum 2017 May 10-12, 2017
All states rely on state constitutions and state statutes to delineate education powers
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13. 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.”
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14. 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
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15. 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?
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16. 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
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17. Federal vs State Role in Education
Education: The New Federalism! Spring Forum 2017 May 10-12, 2017
Federal vs State Role in Education
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18. Department of Education 1867-1979
Education: The New Federalism! Spring Forum 2017 May 10-12, 2017
Department of Education
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
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19. 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 (1979)
Opened May 4, 1980
3,000 Employees/ $12 Billion Budget
Today  4,400 Employees/ $68 Billion
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20. 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
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21. Education: The New Federalism! Spring Forum 2017 May 10-12, 2017
Growth at SEA Level
Prior to National Defense Education Act of – 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
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22. 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
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23. 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
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24. 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
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25. 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 © All rights reserved.

26. 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

27. 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

28. 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

29. 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

30. 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
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31. 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.
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