Federal Update: January 8, 2021 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:January 8, 2021The Federal Update for January 8, 2021 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc61004254 \h 1DeVos Resigns, Citing Events at Capitol PAGEREF _Toc61004255 \h 1Executive Order Would Open Up CCDBG for Vouchers PAGEREF _Toc61004256 \h 2ED Issues New Grant Priority and Definitions on Remote Learning PAGEREF _Toc61004257 \h 3DOL Issues New Training and Employment Notice PAGEREF _Toc61004258 \h 3Biden to Nominate Boston Mayor for Labor Post PAGEREF _Toc61004259 \h 4News PAGEREF _Toc61004260 \h 5Murray to Become Head of Senate HELP Committee PAGEREF _Toc61004261 \h 5DeVos Sends Final Remarks to Congress PAGEREF _Toc61004262 \h 6House Members Ask for Audit of CARES Act Spending PAGEREF _Toc61004263 \h 7Trump 1776 Commission Holds First Meeting PAGEREF _Toc61004264 \h 7 Legislation and Guidance DeVos Resigns, Citing Events at Capitol Secretary of Education Betsy DeVos announced late yesterday that she would leave her post at the end of the day today, January 8th, citing President Trump’s support of riots at the Capitol Building this week, which left five dead, as a deciding factor.“The eyes of Americans’ children and students—the rising generation who will inherit the republic we leave them—are watching what is unfolding in Washington today,” DeVos said in the statement issued immediately after the conflict on Wednesday. ?“We must set an example for them, and we must teach them the solemn obligations and duties that come with the title ‘American.’”In a letter to the President announcing her resignation, DeVos wrote that “[w]e should be highlighting and celebrating your administration’s many accomplishments.... Instead, we are left to clean up the mess caused by violent protesters overrunning the U.S. Capitol....That behavior was unconscionable for our country.? There is no mistaking the impact your rhetoric had on the situation, and it is the inflection point for me.”DeVos also used her letter to double down on the administration’s insistence that schools should be open amid the pandemic.? “I know with certainty that history will show we were correct in our repeated urging of and support for schools reopening this year,” she asserts. ?“Millions are being denied meaningful access to education right now, in no small part because of the union bosses who control so much of the traditional system.”Response from Capitol Hill was unsympathetic. House Majority White Jim Clyburn (D-SC) accused DeVos of “running away” from responsibility, calling on cabinet members to invoke the 25th Amendment (though an aide for DeVos pushed back on this assertion, saying that she only resigned after learning the Vice President would not act on that front). Senator Elizabeth Warren responded to the announcement by calling her the “worst Secretary of Education ever.”DeVos is the second cabinet member to resign, following Secretary of Transportation Elaine Chao.? Despite the short window – only a week and a half – until the inauguration of President-Elect Joe Biden, the Department of Education says that Assistant Secretary Mick Zais will temporarily take over as Acting Secretary.DeVos’ resignation letter is here.Resources:Joseph Choi, “Betsy DeVos resigns as Education Secretary,” The Hill, January 7, 2021.Quint Forgey, “’They are running away’: Clyburn blasts DeVos, Chao for resigning without invoking the 25th Amendment,” Politico, January 8, 2020Nicole Gaudiano, “DeVos Resigns, citing violence at the Capitol,” Politico, January 7, 2021.Author: JCMExecutive Order Would Open Up CCDBG for VouchersIn an executive order issued in late December, President Trump instructed the U.S. Department of Health and Human Services (HHS) to use funds under the Child Care and Development Block Grant (CCDBG) for private school vouchers. The order argues that the “failure to quickly resume in-person learning options” during the pandemic “is likely to have long-term economic effects on children and their families,” and that children with special needs are unlikely to receive the full range of needed supports in remote or hybrid instruction. It also expresses concern about private schools – specifically Catholic schools – closing permanently since the beginning of the pandemic because of financial issues.The executive order directs HHS to allow grantees and other eligible entities to use funds under CCDBG for “emergency learning scholarships” directed at “disadvantaged families… without access to in-person learning.” Families can then use those scholarships for tuition and fees at private schools, homeschool or learning pod costs, special education and related services and therapies, and tutoring or remedial education.It was not immediately clear if the order would fall within the permissible use of the statute, or if it would be able to provide grants to students outside the targeted age for CCDBG programs. However, it is unlikely that this administration could launch the voucher program in the short time they have left, and it is unlikely that the Biden administration will implement it.The text of the executive order is available here. Resources:Michael Stratford, “Trump Opens up Federal Dollars for Private School Vouchers Amid Pandemic,” Politico, December 28, 2021. Author: JCMED Issues New Grant Priority and Definitions on Remote LearningThe U.S. Department of Education (ED) recently published a final priority and definitions for discretionary grant programs for fiscal year 2021 and beyond to promote the use of grant funds to support remote learning. The new definitions added include competency-based education, interoperable credentials, and remote learning. The notice defines remote learning as any learning that occurs away from the physical building and can include full online instruction or hybrid learning. The new grant priority is building capacity for remote learning and includes several requirements that applicants must meet one or more of, including adopting models that leverage technology, developing performance-based assessments that promote competency-based education and can be delivered remotely or in-person, or providing high-quality remote learning for certain student subgroups, among others. If ED chooses to attach this grant priority to future discretionary grant competitions, applicants would either be required to meet the priority or would receive additional points for meeting it, depending on whether ED makes it an optional or required priority for the competition. The decision to develop the new priority and related definitions likely stems from the increase in remote learning due to the COVID-19 pandemic. The final notice with the new priority and definitions is available here.Author: KSCDOL Issues New Training and Employment NoticeIn December, Assistant Secretary for Employment and Training, John Pallasch, issued Training and Employment Notice (TEN) 8-20, titled Public Workforce System Role in Reopening State and Local Economies.The TEN provides information to State and local workforce agencies regarding service delivery, customer outreach, and business management as State and local economies begin to reopen. It also discusses key partnerships and available flexibilities to support State and local efforts and encourages the use of carryover Workforce Innovation and Opportunity Act (WIOA) formula funding to address increased demand. The guidance section of the document is divided into five parts, including service delivery to job seekers, service delivery to business customers, timely and useful labor market information, partnership and planning, and system infrastructure and capacity.The TEN identifies seven considerations for State and local workforce agencies as they plan for and respond to the opportunities and challenges caused by increased State and local economic activity. It suggests that these agencies prepare for increased demand, increase capacity for online services and training, align workforce services with unemployment insurance, adjust physical service delivery options, address youth outreach, adapt work-based learning, and support entrepreneurship.The TEN also contains a lengthy discussion on the allowable uses of carryover funding for system and infrastructure capacity. Generally, workforce agencies can spend funding on supplies or equipment to provide and help people access virtual workforce services. The guidance clarifies that “laptops and tablets usually fall within the definition of supplies, which do not need grant officer approval.” Workforce agencies, however, may not use WIOA funds for “the building of infrastructure needed for local broadband services.” The guidance also states that WIOA funds may be used to “pay for devices and broadband internet service that will allow a participant to create or maintain a wireless connection for distance learning, searching for jobs, and other employment and training services where such services are already allowable.” Finally, the document reminds grantees to use “sound fiscal prudence and ensure all funds, property, and other assets are safeguarded against loss from unauthorized use or disposition,” referencing the Uniform Guidance sections on financial management and internal controls. The TEN also encourages grantees to use the staffing flexibilities provided by the Wagner-Peyser Act Staffing Flexibility Final Rule (effective on February 5, 2020) and the Trade Adjustment Assistance (TAA) for Workers Final Rule (effective on September 21, 2020). Under these flexibilities, States can provide Wagner-Peyser Act-funded or TAA-funded services through staffing arrangements that best suit their needs, instead of through State merit staff. A copy of the TEN 8-20 guidance can be found here.Author: ASBBiden to Nominate Boston Mayor for Labor PostPresident-elect Joe Biden will reportedly nominate Boston Mayor Marty Walsh to serve as Secretary of Labor. Walsh is supported by the AFL-CIO, the American Federation of Teachers (AFT), and the American Federation of State, County, and Municipal Employees. Walsh himself is a former union leader, having served as the head of the Boston Building and Construction Trades Council. Some current and former union officials raised concerns about accusations of corruption that reportedly occurred during Walsh’s time as mayor, though they were quick to note that the accusations were not against Walsh himself. Others expressed disappointment that Biden had not selected someone who was Asian American for his cabinet, pointing to California Labor Secretary Julie Su as a potential candidate.House Republicans were quick to criticize the pick. In a statement, the top-ranking Republican on the House Committee on Education and Labor, Representative Virginia Foxx (R-NC), said that “Marty Walsh’s background in organized labor signals that he will work to deliver on left-wing campaign promises including a $15 mandated minimum wage, punitive one-size-fits-all regulations, forced unionization of small businesses, and eliminating the independent contractor model.” Foxx added that she has “serious concerns that the Department of Labor under Walsh will crush our economic recovery by strangling business owners with an onslaught of job-killing regulations and vindictive and overzealous oversight.”Author: JCMNews Murray to Become Head of Senate HELP CommitteeSenator Patty Murray (D-WA) will become Chairwoman of the Senate Committee on Health, Education, Labor, and Pensions (HELP) for the 117th Congress, which convened this week. Murray’s move to Chairwoman comes in light of the results of the runoff election in the State of Georgia, where both Democratic candidates won – Jon Ossoff and Raphael Warnock, who is the first Black person elected to the Senate by the State of Georgia. Since no candidate in the November election gained more than 50 percent of the vote, both Senate seats went to a runoff race. The top two candidates in the race for each seat ran in the runoff election, which was held on Tuesday. The results of the runoff election mean the Democratic Party has gained majority control of the Senate. There are now 50 Democrats and 50 Republicans in the upper body, and Vice President-elect Kamala Harris will provide a tie-breaking vote for the Democratic Party when necessary.Murray has served as the Ranking Member of the Senate HELP Committee since 2015 and was a key player in the reauthorization of the Elementary and Secondary Education Act. She will take the place of former Senator Lamar Alexander (R-TN), who retired at the end of 2020. Murray’s greatest focus in the coming months will likely be on the impact of COVID-19 on schools, pushing for additional aid money to assist with reopening and ensuring that students, particularly disadvantaged and minority students, do not continue to fall further behind. Other issues Murray is expected to focus on during her tenure include strong accountability measures for K-12 education, reversing Secretary of Education Betsy DeVos’ Title IX rules, and pushing to expand early childhood education – many of which are priorities of President-elect Joe Biden as well. Republicans have not yet decided who will become the Ranking Member on the HELP Committee, but Senator Richard Burr (R-NC) is next in line by seniority, followed by Senator Rand Paul (R-KY). Murray and Alexander had a productive working relationship on the Committee for most of their tenure. It remains to be seen whether we can expect a similar relationship with whoever is chosen as the new Ranking Member.Resources: Andrew Ujifusa, “Patty Murray Set to Lead Senate Education Committee After Democratic Wins in Georgia,” Education Week: Politics K-12, January 7, 2021.Author: KSCDeVos Sends Final Remarks to Congress Secretary of Education Betsy DeVos wrote a farewell letter to Congress this week highlighting her achievements and asking lawmakers to pursue her policies on establishing State block grants, encouraging school choice, and increasing accountability and transparency.The letter suggests the COVID-19 pandemic “revealed” that education in America is beholden to a rigid system that caters to the interests of every stakeholder except the student. Specifically, DeVos points to how funding goes to “school buildings, programs, and activities” and how “lobbyists and special interest groups” ultimately represent adults in school administration rather than students. This, DeVos says, indicates that the “entire apparatus is designed to support a ‘system’ that provides schools to students…instead [of] for students.”In her letter, DeVos urges Congress to “fund students, not school buildings” and appeals to using direct funding to students, remediating learning loss for vulnerable students, and the failures of increased funding. DeVos cites to Medicare, Medicaid, Supplemental Nutrition Assistance Program, healthcare under the VA system, Pell grants, and Veterans’ use of the GI Bill, to highlight how Congress has used direct funding in the past. She also states that the data “speaks for [itself]” to indicate that the “‘system’ has never figured out how to remediate students at scale.” DeVos then says that although education spending has increased nearly threefold on a per pupil basis since 1960, “[student performance measures] show that the increased burden on taxpayers has not translated to improved student achievement.”The letter goes on to highlight her achievements while in office. Among those listed in the letter are: the new Title IX rule which she claims “restores due process,” passing Perkins V, modernizing the FAFSA application, and revamping the College Scorecard. DeVos also says that “across-the-board [debt forgiveness] …is…the most regressive of policy proposals…” (Some Democrats have recently urged President-elect Joe Biden to use executive powers to cancel student loan debt after he enters office.)DeVos’ tenure as Secretary of Education had many opponents and struggled to create bipartisan support. During her time, many saw DeVos as an adversary to public schools and the traditional principles of the U.S. Department of Education. As President-elect Joe Biden promises to undo some of the Trump administration’s policies, some critics see this letter as a plea to Congress to shield them from this pending change in power. A copy of the letter can be found here.Author: ASBHouse Members Ask for Audit of CARES Act SpendingRepublican members of the House Committee on Education and Labor wrote to Government Accountability Office (GAO) Comptroller Gene Dodaro last month asking the organization to report on the use of education funding appropriated through the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Lawmakers were following up on a database launched by the U.S. Department of Education (ED) the same month which purported to show that only 12 percent of K-12 relief funds and only 18 percent of money directed through Governors had been spent as of the end of the fiscal year. The signatories said that with the possibility of additional aid, it was important “for Congress to determine whether funds allocated to school systems are meeting the needs of students and parents.” Notably, the letter seems to acknowledge the difference between obligation rates – the point at which a State or district has committed to spend federal money – and liquidation, which is the drawdown of funds by ED to demonstrate whether funds were “spent” in the online tool.Though the question of additional aid is somewhat moot with the passage of more than $80 billion in education relief in December, GAO will still be required to draft the report. They must respond to questions regarding how CARES Act funds have been used to support K-12 education, the obligation and expenditure rates over time, any information available regarding the underlying information used to populate ED’s database, and any plans the organization can ascertain from ED as to its plans to release itemized spending information to the public. Lawmakers are requesting that this information be released within the first quarter of the year.Author: JCMTrump 1776 Commission Holds First MeetingThe 1776 Commission, an advisory group President Trump created by executive order last year to encourage “patriotic education” in K-12 schools, held its first meeting on Tuesday. The Commission consists of 18 President-appointed members from an array of fields, with some coming from the education world. During the meeting this week, the Commission criticized young American’s lack of pride for their country and described the current teaching of American history as divisive. The members also crafted a plan for their future actions and discussed the founding fathers.The President created the Commission the day before the November election, partially in response to the 1619 Project led by the New York Times, which has sought to shift the teaching of American history to focus on the consequences of slavery as well as the contributions of Black Americans. President Trump has repeatedly taken aim at the 1619 Project. Although members of the 1776 Commission have been appointed for a two-year term, the Commission may be dissolved after President-elect Biden takes office on January 20th. The Biden administration has yet to comment on its plan for the Commission but has said it will have more information soon. Resources:Nicole Gaudiano, “Trump’s 1776 Commission, in First Meeting, Targets Teaching of American History,” Politico, January 5, 2020.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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