A Whole New World - Brustein & Manasevit · 3 To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016 Appropriations Issues for Education
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To Accountability…and Beyond!!Brustein & Manasevit Fall Forum 2016November 30 – December 2, 2016
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Appropriations timelineTiming and outcome of appropriations debate depends on election outcome◦ Majority will game out best possible scenario based on majorities in House/Senate, White House
Possible final, full‐year appropriations bill will come as late as late January/early February◦ With interim CRs
Big issues for debate:◦ Flint water funding
◦ NDAA and exemptions to non‐discrimination clauses against LGBTQ individuals
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ESSA implementation oversightBoth House and Senate Committee holding multiple hearings on ESSA implementation◦ On impact/policy generally
◦ On specific items (e.g. proposed supplement, not supplant regulations)
Senator Alexander (December 2015): Expect the federal role to be “very different” under ESSA◦ ED “need[s] to read the law carefully. And we expect them to do it and to follow the law, and there are specific prohibitions. We have an oversight responsibility.”
◦ September 2016: “Don’t assume you can’t do anything,” and if ED rejects State plan, “you can take the department to court, and I hope that you do.”
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Alexander’s ThreatsWill “use every power of Congress to make sure the law is implemented the way we wrote it, including our ability to use the appropriations process and to overturn such regulations once they are final”
◦ Appropriations powers
• Can condition acceptance of federal funds by ED on non‐enforcement of rule
◦ Legal Action
• Congress has sued/joined suits over Congressional action• Congressional record on disagreement
◦ Congressional Review Act (1996)
• Can overrule regulations within 60 days of publication of final rule through passage of a joint resolution
Congressional resolution of disapproval must be signed by President
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Perkins
House passed legislation to reauthorize the law 405‐5 early in September
Senate set to mark up draft legislation September 21st, but postponed indefinitely◦ Reportedly over Democrats’ concerns regarding Secretarial authority
May or may not see reauthorization in lame duck session – depends on whether two sides can reach compromise
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PerkinsSample Secretarial limitations (many more throughout draft Senate bill):◦ Can’t promulgate regulations that would:
• Add new requirements that are “inconsistent with or outside the scope of this Act”
• Add new criteria “inconsistent with or outside the scope of this Act”• “Be in excess of statutory authority granted to the Secretary”
◦ Can’t prescribe:
• Specific performance indicators, targets, or levels of performance
• Approaches taken to ensure equitable access• Indicators or measures of teacher/faculty education or quality
◦ “The role of the Secretary in the identification and dissemination of the State target levels of performance …shall be limited to providing technical assistance”
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JJDPA Reauthorization◦ Supporting Youth Opportunity and Preventing Delinquency Act (H.R. 5963)• Bipartisan: sponsored by Reps. Bobby Scott (D‐VA), Carlos Curbelo (R‐FL) • Encourage collaboration among State leaders to create smooth transitions out of the juvenile justice system
• Require that State planning process is based on “scientific knowledge regarding adolescent development and behavior”
• Adds stakeholders to the required members of the State advisory groups including public defenders, substance abuse counselors, representatives of victim advocacy groups
• Increase the amount of training and technical assistance provided by the federal government (2% 5%)
• GAO and DOJ now able to assess compliance, take enforcement action
• Passed in House in late September – marker bill?
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Supplement, not SupplantED issued regulations following failed negotiate rulemaking
Statute says ED/States can only ask for assurances that the methodology itself is compliant; cannot ask for individual costs to be identified or prescribe methodology
◦ Goal of statutory provisions was to eliminate three “presumptions of supplanting”
ED’s proposal provides four options for compliance (comments due 11/7), to be met overall or by grade span
◦ Weighted student formula
◦ Personnel and non‐personnel expenditures
◦ State‐drafted funds‐based compliance test (OPTIONAL for State)
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Title III GuidanceOverall purpose is to clarify use of Title III dollars now that accountability for English Learners has moved into Title I ◦ Overall, can use Title III funds for many of the same purposes as under NCLB, despite change, e.g.:
• Identification of ELs• Notification of parents• Developing assessments/ensuring alignment with State standards
• Reporting requirements regarding ELs and former ELs
◦ Title I funds may also now be used for these purposes as they relate to ELs
◦ An LEA may spend funds under both Title I and Title III on the same EL‐related programs or activities
◦ Title III’s State and local cap on administrative costs applies only to direct administrative costs
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Title IV GuidanceLargely restates statutory language, with additional examples for allowable uses of funds
For LEAs receiving $30,000 or more, must spend at least…◦ 20% on safe and healthy students
◦ 20% on well‐rounded education
◦ Some portion on technology (no more than 15% on infrastructure)
But some activities can satisfy more than one requirement explain in application to State
Distribution requirements only apply at LEA level, not at school/State level◦ LEA has flexibility in determining the amount of funds to distribute to a school and for which activities, provided its determinations are consistent with its needs assessment and school prioritization
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Fallout in CongressSenate: Democrats gained 2 seats, now 51‐48◦ Shift in top HELP Democrat?
House: Democrats gained 7 seats, now 239‐193◦ New Chair of Education and Workforce?
But:◦ Lack of united Republican front◦ Pressure to endorse/vote for candidate (and the birth of “support but not endorse”)
◦ Lack of united Democratic front◦ New Democrats coming from districts that lean Republican and are more likely to push away from liberal Democratic leadership (i.e. Pelosi)
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Fallout in CongressOpposition to second Ryan term as speaker?◦ Mark Meadows (R‐SC) (Freedom Caucus member who led move to oust Boehner): “A lot of people who believe so desperately that we need to put Donald Trump in the White House ‐‐ they question the loyalty of the Speaker.“
◦ Calling for delay in election/caucus
◦ May oppose him on first ballot
Long‐term opposition to Ryan◦ Can only make policy by losing Republicans and using votes from Democrats
• Possibly violating “Hastert Rule?”• Limited chances to do this
• Constitutional obligation to serve as Speaker of both parties
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