Federal Update: January 15, 2021 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:January 15, 2021The Federal Update for January 15, 2021 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc61607738 \h 1Memo from ED Says No Title IX Protections for Gender Identity PAGEREF _Toc61607739 \h 1ED Issues Letter on CARES Act Reporting Through FFATA PAGEREF _Toc61607740 \h 2Biden Calls for Additional Education Relief PAGEREF _Toc61607741 \h 3ED Reinstates Some Guidance Documents Rescinded in August PAGEREF _Toc61607742 \h 4News PAGEREF _Toc61607743 \h 4New OCR Investigations Question Districts’ Provision of FAPE PAGEREF _Toc61607744 \h 4School Nutrition Association Calls for Universal Free Meals PAGEREF _Toc61607745 \h 5Reports PAGEREF _Toc61607746 \h 6OCR Sends Annual Report to Congress PAGEREF _Toc61607747 \h 6GAO Publishes Report on School Improvement Activities PAGEREF _Toc61607748 \h 6Legislation and Guidance Memo from ED Says No Title IX Protections for Gender IdentityIn an internal memorandum issued last week, the U.S. Department of Education’s (ED’s) acting general counsel says that protections against discrimination on the basis of sex under Title IX of the Education Amendments of 1972 only apply to biological sex, not gender identity. “[B]ased on controlling authorities, we must give effect to the ordinary public meaning at the time of enactment and construe the term ‘sex’ in Title IX to mean biological sex, male or female,” reads the memo. ED’s Office for Civil Rights had previously been instructed to apply whichever federal court position was controlling in the circuit where the complaint originated.The memo also examines whether a Supreme Court decision issued this summer in Bostock v. Clayton County, Ga. should influence the application of Title IX. In that case, the justices said that treatment on the basis of gender identity could not be separated from the interaction of an individual’s gender identity with his or her sex. Still, the memo concludes that because Bostock focused on employment law, and because the Court said it intended the decision to be interpreted narrowly, that it should be limited to employment law not be extended to gender identity in an educational context.But federal judges have already suggested that Bostock could control in education-related Title IX cases. A federal judge in Idaho late last year blocked a State law that barred transgender athletes from participating on girls’ sports teams, saying that OCR’s position that Bostock did not extend to Title IX was of “questionable validity.”Additionally, this memo is in conflict with recent federal court rulings which have interpreted Title IX to protect transgender students, requiring schools and districts to allow them to use restrooms and locker rooms and participate in sports consistent with their gender identity. Still, it says that ED attorneys are “unpersuaded by the Title IX analysis” in those two decisions and that the rulings “failed to rigorously analyze” the plain text of the law or address the impact ED’s implementing regulations, which permit separate facilities “for each sex” so long as they are “comparable,” the implication being that contemporaneous thought surrounding the term “sex” at the time Title IX was passed allowed for only biological sex to be considered.The memo suggests that the fault for the confusion over Title IX and gender identity lies with Congress, which could easily have passed legislation to redefine the term sex but “has chosen not to do so.” Legislation from Representative Tulsi Gabbard (D-HI) introduced late last year would attempt to define sex as limited to biological sex, but that bill expired with the end of the last Congress. The Supreme Court is also expected to take up a case on gender identity this term which would be controlling.The gender identity memo is available here.Resources:Mark Walsh, “Title IX Protections Apply Only to ‘Biological Sex,’ Education Department Memo Says,” Education Week, January 10, 2021.Author: JCMED Issues Letter on CARES Act Reporting Through FFATAThe U.S. Department of Education (ED) sent a letter to Chief State School Officers on Monday regarding grant reporting requirements under the Federal Funding Accountability and Transparency Act of 2006 (FFATA). ED reminds grantees that FFATA reporting requirements apply to all programs administered by ED, including Elementary and Secondary Education Act (ESEA) programs, as well as emergency funding under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. FFATA will also apply to the more recent stimulus funding authorized by the Coronavirus Response and Relief Supplemental Appropriations Act, but ED says that it will address those reporting requirements in future guidance.ED published updated CARES Act reporting guidance in October that notifies grantees that the quarterly reporting requirements required under the CARES Act can be satisfied through monthly FFATA reporting. Grantees receiving funding under the following programs will be considered to be in compliance with CARES Act quarterly reporting requirements as long as monthly FFATA reporting is submitted:Governor’s Emergency Education Relief Fund;Elementary and Secondary School Emergency Relief Fund;Education Stabilization Fund – Reimagine Workforce Preparation Discretionary Grant; Education Stabilization Fund – Rethink K-12 Education Models Discretionary Grant;Education Stabilization Fund Program Outlying Areas-State Educational Agency; andEducation Stabilization Fund Program Outlying Areas-Governors. This guidance does not apply to the Higher Education Emergency Relief Fund, which has separate instructions from ED on reporting. This week’s letter from ED reminds grantees that FFATA reporting data must be high quality, complete, and accurate and must include the name of the project or activity. Along with that description, ED directs grantees to include the estimated number of jobs created or retained by the project or activity, where applicable. ED also says that should grantees fail to meet these reporting requirements, it has the authority to take administrative action, which could include termination of the grant.In addition to the CARES Act reporting, FFATA also requires regular reporting for other ED-administered programs, like under the ESEA. Grantees can find information on those reporting requirements in their grant award notifications. ED recommends that States review their overall procedures for FFATA reporting as they work to develop procedures for reporting under CARES Act programs and make any necessary updates. The October 2020 guidance on CARES Act FFATA reporting, referenced in this week’s letter from ED, is available here.Author: KSCBiden Calls for Additional Education ReliefIn a speech Thursday night, President-elect Joe Biden called on Congress to pass an additional $1.9 trillion in coronavirus relief, of which $170 billion would be dedicated to helping schools to reopen safely.? The plan reiterates Biden’s goal of reopening the majority of K-8 schools within the first 100 days of his administration.? It includes $130 billion in funding for K-12 schools to reduce class sizes, improve ventilation, purchase personal protective equipment, and mitigate learning loss, though there is no allocation plan outlined in the proposal.? That funding could be used for mental health supports, extended learning time, and pre-k programs.? It would also reopen Federal Emergency Management Agency disaster relief funds for COVID-19 related expenses and support regular testing protocols.“We can [open schools] if we give school districts, communities, and states the clear guidance they need as well as the resources they will need that they cannot afford right now because of the economic crisis we are in,” Biden said in his speech. “That means more testing and transportation, additional cleaning and sanitizing services, protective equipment, and ventilation systems in the schools.”The plan also contains $35 billion for higher education, directed primarily at public colleges and universities and private schools classified as Historically Black Colleges and Universities (HBCUs) or minority-serving institutions (MSIs). Those funds would go to expanding public health protocols, improving distance learning, and providing emergency grants of up to $1,700 directly to students.The transition team calls the overall plan an “aggressive” approach which will consist of two steps: rescue and recovery.Among the other priorities named are mounting a national vaccination program, eliminating supply problems, scaling up testing and tracing, and providing paid sick leave as well as individual stimulus checks.? Business relief will be focused on small businesses, especially those owned by people of color.The transition team will have to work with a closely divided Congress to get legislation passed – one in which many members are skeptical that more aid is needed – so a final bill may be a much more watered-down version of the proposal.Resources:Michael Stratford, “Biden Pitches $170B in COVID Relief for Education,” Politico, January 14, 2020.Evie Blad, “Biden Calls for $130 Billion in New K-12 Relief, Scaled Up Testing, Vaccination Efforts,” Politics K-12, January 14, 2021.Author: JCMED Reinstates Some Guidance Documents Rescinded in AugustThe U.S. Department of Education (ED) issued a notice in the Federal Register Friday that reverses the rescission of 18 guidance documents that had been eliminated in August last year. The 18 documents that are reinstated were reportedly included in the August 2020 guidance rescission list by mistake. The August 2020 rescission included hundreds of documents from across all ED program offices, but the 18 that were inadvertently included in that list all come from the Office of Postsecondary Education. The 18 guidance documents vary in topic area but many apply to financial aid programs and other higher education program requirements, including guidance on competency-based education, FAFSA information, Title IV eligibility for students without a high school diploma, Pell Grant disbursement schedules, and others topics. A full list of the reinstated higher education guidance is available here. Author: KSCNewsNew OCR Investigations Question Districts’ Provision of FAPE The U.S. Department of Education’s (ED’s) Office for Civil Rights (OCR) recently opened investigations into at least four school districts or States across the country following concerns about the treatment of students with disabilities during the COVID-19 pandemic and whether those students have had equal access to educational opportunities.Providing services to special education students has been a challenge for school districts throughout the COVID-19 pandemic, as they have still been held to the requirement to provide a free appropriate education (FAPE) to students with disabilities during periods of virtual learning. Virtual instruction has made the provision of those services difficult for some districts. For that reason, many schools across the country, in their reopening plans, have prioritized special education students for in-person learning before bringing other student groups back for in-person instruction. The school districts facing investigations were brought to the attention of OCR through press reports, as well as parent complaints and legal challenges, over the past several months. Letters were sent this week from Acting Assistant Secretary for Civil Rights Kimberly Richey to Fairfax County Public Schools, Seattle Public Schools, Los Angeles Unified School District, and the Indiana Department of Education. Richey emphasized, though, that an investigation “in no way indicates that a violation exists.” It is unclear whether OCR will be issuing similar letters to additional school districts in the coming weeks, but States and districts should be aware that ED may have heightened attention on the issue of providing FAPE to students with disabilities in the coming months. Resources:Bianca Quilantan, “Education Department Launches Investigation into Treatment of Students with Disabilities,” Politico, January 14, 2021.Author: KSC School Nutrition Association Calls for Universal Free MealsThe School Nutrition Association issued a briefing paper this week asking the newly-sworn 117th Congress to make universal free school lunches and breakfasts permanent as Democrats prepare to take control of both chambers of Congress as well as the White House. Free meals would reduce stigma, improve childhood nutrition, and eliminate the issue of unpaid meal debt as well as the administrative burden of reviewing and verifying applications, the group argues.Schools have been offering free community meals throughout the school year as part of the federal government’s pandemic response. But more than 20 percent of households with children say they do not have enough food to eat at home according to recent data from the Annie E. Casey Foundation, and the group expressed concern that the slow economic recovery could result in long-term issues for many families.Additionally, the group asks for emergency relief for education programs, whose expanded reach has cut deep into local budgets – a recent survey by the group said that about 62 percent of programs expected to operate at a loss this year.The group’s 2021 position paper also calls for flexibility in whole grain, sodium, and milk requirements over concerns of availability and student response.The full 2021 position paper is available here.Author: JCMReportsOCR Sends Annual Report to CongressThe U.S. Department of Education’s (ED’s) Office for Civil Rights (OCR) recently published its annual report for fiscal year 2020 summarizing its compliance and enforcement activities for the year.In her message as Acting Assistant Secretary for Civil Rights, Kimberly Richey states that this report, “recaps OCR’s achievements and significant accomplishments both for fiscal year 2020 and over the past four years.” She adds that it “highlight[s] how OCR worked tirelessly to safeguard individual rights that are guaranteed to all students under federal law throughout the past four fiscal years of the Trump administration.”The report states that OCR made it its priority to “strengthen civil rights enforcement; alleviate unnecessary, outdated, or ineffective regulatory burdens…and bolster enforcement through proactive technical assistance” during the Trump administration.The report dedicates three feature sections to “COVID-19 Response”, “Significant Strides to Combat Sexual Violence in Schools”, and “the Religious Liberty and Free Inquiry Rule.” These sections highlight OCR’s role in providing guidance to support local education leaders during the pandemic and its push to prioritize the issues of sexual violence and religious liberty in schools. The upshot of the last two initiatives was ED’s publishing of the new Title IX Final Rule and the Religious Liberty and Free Inquiry Final Rule.The report also features two “issue spotlights” on “OCR’s Commitment to Protecting Women’s and Girl’s Athletics” – a reference to decisions which required school systems to base participation on biological sex – and “Use of Race in Admissions and Scholarships or Financial Aid.” These sections discuss the OCR’s response to recent supreme court cases on gender identity, sexual orientation, and race that made national headlines. Finally, the report has sections dedicated to discussions on OCR’s caseload, discrimination based on disability under Section 504 and Title II, civil rights data collection, and Freedom of Information Act requests.A copy of the report can be found here.Author: ASBGAO Publishes Report on School Improvement ActivitiesThe Government Accountability Office (GAO) released a report this week that examines school improvement activities under the Elementary and Secondary Education Act. Congress requested the report from GAO as part of the fiscal year 2019 appropriations bill for the U.S. Department of Education. The report examines how States identify and allocate funds for schools that are identified for support and improvement under the ESEA and the extent to which States have the capacity to support districts’ school improvement activities. GAO also reviews how helpful States have found ED’s technical assistance on school improvement to be. As part of the review, GAO analyzed ESEA State plans from all 50 States and the District of Columbia and surveyed all 50 States, conducting follow-up interviews with officials in three States. Approximately half of respondents sought at least one type of technical assistance from ED on school improvement and the majority of those who used technical assistance found it to be helpful. Types of technical assistance included in-person training, webinars, and reviews of research studies to assist with selecting interventions for school improvement. In addition, GAO found that a majority of States reported having at least moderate capacity to support school districts in their school improvement activities. Other findings from the analysis include four States taking advantage of ESEA flexibility to set higher graduation rates for accountability and 12 States assessing performance of more subgroups than required by the statute for purposes of identifying schools for improvement. Finally, the report reviewed how States allocate their ESEA Section 1003 funds, which are set aside for school improvement activities, finding that 27 States use a formula to allocate those funds to their school districts. The full GAO report on school improvement is available here.Author: KSCTo stay up-to-date on new regulations and guidance from the U.S. Department of Education, register for one of Brustein & Manasevit’s upcoming virtual trainings. Topics cover a range of issues, including COVID-19 related issues, grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming virtual training topics and to register, visit HYPERLINK "" \o "Brustein & Manasevit web page on Virtual Trainings"virtualtrainings/.The Federal Update has been prepared to inform Brustein & Manasevit, PLLC’s legislative clients of recent events in federal education legislation and/or administrative law.? It is not intended as legal advice, should not serve as the basis for decision-making in specific situations, and does not create an attorney-client relationship between Brustein & Manasevit, PLLC and the reader.? Brustein & Manasevit, PLLC 2021Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, January 2021 ................
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