Federal Legislative Report 115-01
Delivered via email: February 13, 2017
The last Federal Legislative Report (FLR) (114-11) was on Sept. 28, 2016. Very little has happened in Washington, D.C. between then and the end of the year due to the election. Since the beginning of 2017, many things in Washington, D.C. have changed. This FLR will review past issues reported on and the status of those issues.
PRESIDENT TRUMP INSTITUTES A REGULATORY FREEZE
On Jan. 20, President Trump instructed the heads of executive departments and agencies to institute a regulatory freeze so that pending regulations could be reviewed by the new administration. This freeze impacts several issues reported on in previous FLRs. Additionally, President Trump signed an executive order on Jan. 30 which further limits rulemaking of executive agencies by requiring two rules to be identified for repeal for each rule promulgated.
The Freeze’s Effect on Education Specific Regulations:
On Jan. 30, the Trump Administration U.S. Department of Education (DOE) published notice in the Federal Register delaying the effective date of three finalized regulations. Now that a formal delay of the regulations has been implemented, the DOE will conduct a substantive and legal review of the regulations to determine appropriate action. Also at this time, Congress is taking affirmative steps to repeal regulations finalized during the Obama Administration.
- Title I on the ESSA Accountability, State Plans, and Reporting Regulations (including foster care transportation), would have gone into effect Jan. 30. Affected by freeze, DELAYED until March 21.
- On Feb. 7, the House voted to repeal these regulations (HJR 57).
- Assessments Regulations and Innovative Assessment Pilot Program Regulations – finalized Dec. 8, went into effect Jan. 9. DELAYED by Federal Register filing.
- Teacher Preparation Regulations – finalized Oct. 31, went into effect Nov. 30. DELAYED by Federal Register filing.
- On Feb. 7, the House voted to repeal these regulations (HJR 58).
- Supplement Not Supplant Regulations – The Obama Administration DOE withdrew these on Jan. 18.
- Part B of IDEA – finalized Dec. 19, went into effect Jan. 18. The Trump Administration has not filed a delay in the Federal Register, nor has Congress acted to repeal.
What is the status of the many guidance pieces put out since this summer by the DOE under the Obama Administration?
No official position from the Trump Administration has been announced yet on non-regulatory guidance. Many of the following documents have been removed from the DOE website, however, and are presumably archived. Here is a list:
- Foster Care
- Homeless Youth
- CTE re-gender equity
- Ensuring equity and providing behavioral supports to students with disabilities
- Education of children with disabilities attending public virtual schools
- Responding to sexual assault in K-12
- Using evidence to select, implement, and evaluate evidence-based interventions
- Educating English learners
- How states and school districts can use federal funding under ESSA to better support teachers
- Early Learning
- ESSA Title IV – 21 st Century Schools
- Fiscal changes and equitable services requirements under ESSA
- Consolidated State Plan
- State and Local Report Cards
- High School Graduation Rate
- Title I and English Language Learners
ESSA IMPLEMENTATION STATUS
At the Federal Level
Only time will tell.
The Illinois State Board of Education (ISBE) released the third draft of the State Plan on Feb. 2. Every state is required by ESSA to develop a State Plan identifying their accountability plan, and must submit their Plan to the DOE by April 3 or Sept. 18. ISBE intends to submit Illinois’ plan by April 3.
The Illinois Statewide School Management Alliance submitted formal comments on the first and second drafts of the State Plan. The Alliance has been pleased with the process and the many opportunities to provide input. Many suggestions made by the Alliance have been included in the State Plan. The biggest concern remaining is in the determination of the weighting of non-academic vs. academic indicators. The Alliance supports current law (Public Act 99-0193), voted on unanimously by the General Assembly in May 2015, which determined that 70 percent should be non-academic indicators and 30 percent academic indicators. There is a push from some to reverse that to 30 percent non-academic/70 percent academic indicators. The Alliance opposes that and will continue to remind all stakeholders of the unanimous vote for 70 percent non-academic/30 percent academic indicators.
OTHER REGULATIONS IMPACTED BY ELECTION
U.S. Department of Labor (DOL) Overtime Regulations
Prior to President Trump’s election, the House voted on legislation on Sept. 28 to delay implementation of the DOL overtime rules. The Senate introduced a companion bill. President Obama said he would veto any delay sent to him. In November, a federal judge granted an emergency preliminary injunction to delay implementation. The Trump Administration would have to file a repeal of the regulation with the Federal Register since it took effect in December, but most likely the President will choose not to defend it in court and the court will declare it invalid.
U.S. Environmental Protection Agency (EPA) Polychlorinated Biphenyls (PCB) Regulations
In July, the EPA announced its intention to revisit regulations considered in 2013 which would require the replacement of all light fixtures containing PCBs. In mid-November, after the election, the Obama Administration EPA announced plans to bypass the regulatory process to expedite implementation. The Obama Administration EPA withdrew the regulations on Jan. 20.
U.S. SUPREME COURT
Three very important cases are being considered this session. Decisions will mostly likely come this summer.
- Transgender Restroom Use - the Court will consider two issues:
Definition of Free Appropriate Public Education (FAPE)/Special Education Consideration
- Should deference extend to a letter from the DOE Office of Civil Rights (OCR) that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
- With or without deference to OCR, should OCR's specific interpretation of Title IX and attendant rules be given effect?
Exhaustion of Administrative Remedies under Individuals with Disabilities Education Act (IDEA)
- FAPE is not currently defined in IDEA or its regulations regarding level of benefit. Any definition added will have serious ramifications on school districts. Will the Court define FAPE?
- The Court will address the issue of parents bypassing IDEA procedures to sue for damages under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, as damages are not available under IDEA.
FISCAL YEAR 2017 APPROPRIATIONS
A Continuing Resolution was passed by the House on Dec. 8 and by the Senate on Dec. 9 to continue funding through April 28.
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