1. Post-Election Updates and Agenda for the Lame Duck Congress
Julia Martin, Esq. & Kelly Christiansen

2. Appropriations
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3. Appropriations Fiscal Year 2018 Omnibus bill passed in March 2018
Boosts funding for most formula-funded programs
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4. Appropriations Fiscal Year 2019
Education funding bill passed on time in September
Increases (again!) for
many education programs
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5. Historical Funding Levels
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6. 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?
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7. 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
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8. Impact of Midterms
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9. New political Balance House of Representatives Senate Source: CNN
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Source: CNN

10. 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
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11. 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
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12. 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
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13. Reauthorizations HEA, IDEA
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14. 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 by Virginia Foxx (R-NC)
Aim Higher Act introduced by House Democrats in July 2018
HEA  generally very controversial legislation
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15. 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
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16. Coming Next From the Administration
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17. 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
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18. 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
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19. 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
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20. 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
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21. 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?
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22. Results? Source: Federal Employee Viewpoint Survey (FEVS), 2012 - 2018
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Source: Federal Employee Viewpoint Survey (FEVS),

23. 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  trainings that typically range in length from ½ day to 1 day, but could be as long as 5 days
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24. Substantive Changes New protocols for monitoring/enforcement
Data-based  who is the biggest risk?
Limited resources for technical assistance/guidance
Less guidance, regulations
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25. 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
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26. 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?
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27. 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”
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28. 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.”
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29. deregulatory Changes
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30. 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
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31. 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
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32. 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)
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33. “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
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34. 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!
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35. 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.