Federal Update: December 11, 2020 - Government Affairs (CA ...



From:Michael Brustein, Julia Martin, Steven Spillan, Kelly ChristiansenRe:Federal UpdateDate:December 11, 2020The Federal Update for December 11, 2020 TOC \o "1-3" \h \z \u Legislation and Guidance PAGEREF _Toc58583576 \h 1ESEA Title IV-A Waivers Offered PAGEREF _Toc58583577 \h 1NCES Asks to Cancel NAEP PAGEREF _Toc58583578 \h 2USDA Publishes Proposed Rule on Child Nutrition Flexibilities PAGEREF _Toc58583579 \h 3ED Establishes Free Speech Hotline PAGEREF _Toc58583580 \h 3Incoming Administration Announces Cabinet Picks – But No Ed Secretary Yet PAGEREF _Toc58583581 \h 4DeVos Extends Student Loan Forbearance PAGEREF _Toc58583582 \h 5News PAGEREF _Toc58583583 \h 5ED Publishes CARES Act Spending Portal PAGEREF _Toc58583584 \h 5 Legislation and Guidance ESEA Title IV-A Waivers OfferedOn December 1st, Assistant Secretary for Elementary and Secondary Education Frank Brogan sent a letter to Chief State School Officers inviting States to extend waivers for certain sections of the Student Support and Academic Enrichment Grant Program (Title IV, Part A) of the Elementary and Secondary Education Act of 1965 (ESEA), in light of the continued disruption to learning caused by COVID-19. The sections identified in the letter that are subject to waiver include section 4106(d), related to LEA needs assessments for the 2020-2021 school year; section 4106(e)(2)(C), (D), and (E), with respect to content-area spending requirements for fiscal year (FY) 2020; and section 4109(b), with respect to the 15 percent spending limitation for technology infrastructure for FY 2020. Secretary Brogan exercised his authority under section 8401(b) of ESEA to offer these flexibilities.Initially, States requested and received a waiver of these provisions for the 2019-2020 school year and FY’s 2018 and 2019 Title IV, Part A funds under the waiver authority of Section 3511 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. However, the CARES Act did not provide authority to extend these waivers to the current school year. To take advantage of the extended flexibility, States must submit their request to the Title IV, Part A email provided in the letter and provide interested LEAs with notice and a reasonable opportunity to comment. The letter notes that should a request be granted, the U.S. Department of Education will follow up to discuss how the waivers are being used, any challenges the State may face, and what adjustments may be helpful to consider. Lastly, the letter included as an attachment an optional template that States may use to submit their request. A copy of the letter can be found here.Author: ASBNCES Asks to Cancel NAEPThe National Center for Education Statistics (NCES) has determined that it cannot conduct the National Assessment of Education Progress (NAEP) test this year. According to the NCES Commissioner, there are too many obstacles – including the high proportion of students engaged in distance learning and a prohibition on visitors at many schools – to successfully complete the test “in a manner with sufficient validity and reliability.” Because the test is Congressionally mandated, however, lawmakers must approve the cancellation of the assessment.Secretary of Education Betsy DeVos wrote to Speaker of the House Nancy Pelosi (D-CA) late last month indicating that testing would be impossible and asking to lift the requirement to conduct the test. “Unfortunately, nearly all the sampled schools are, at this point, either prohibited from participating in the testing by local officials or have indicated they cannot or would not participate in this January’s assessment. This situation is, unfortunately, unlikely to change in the next few weeks,” DeVos wrote. “Consequently, I have asked NCES to postpone any further expenditures on the 2021 NAEP preparations.”? DeVos suggests that the U.S. Department of Education should “postpone the administration of NAEP tests until the assessment will be able to produce useful results, likely in 2022.”? The Democratic leaders on the Congressional education committees, Representative Bobby Scott (D-VA) and Senator Patty Murray (D-WA), said in a joint statement that postponing NAEP was “unfortunate” but also “understandable” given the circumstances. And outgoing Senator Lamar Alexander (R-TN), Chairman of the Senate Committee on Health, Education, Labor, and Pensions, said DeVos made “the right decision” and that Congress should act quickly to provide the one-year delay. DeVos’s request, however, comes in contrast to her insistence that States should still conduct their annual assessments in the 2020-21 school year. She doubled down on that assertion in her letter, writing “I strongly believe that [S]tates should implement their own assessments on schedule in spring 2021, given that they do not face the same constraints as NAEP and have ample time to plan for successful test administration tailored to their unique circumstances.”The waiver requested by NCES and DeVos would likely be included in an omnibus appropriations package planned for debate and passage next week.Resources:Nirvi Shah, “Covid Cancels Giving The Nation’s Report Card This School Year,” Politico? November 25, 2020.Author: JCMUSDA Publishes Proposed Rule on Child Nutrition FlexibilitiesThe U.S. Department of Agriculture (USDA) recently published a proposed rule that would implement child nutrition program flexibilities that had previously been issued as part of a final rule in 2018 but were vacated due to a court ruling earlier this year.The flexibilities, initially promulgated in a 2017 interim final rule and then a 2018 final rule, include allowing schools to serve flavored, low-fat milk; allowing half of the weekly grains schools serve to be whole-grain rich; and extending the timeline for schools to comply with sodium targets. These rules followed administrative waivers which had offered the same flexibilities since the passage of the Healthy, Hunger-Free Kids Act in 2010. A U.S. District Court found the 2018 rule to be in violation of the Administrative Procedures Act in April of this year, rendering it invalid. USDA’s proposed rule takes the required first procedural step to restore the flexibilities. In addition to the proposed rule, USDA also issued a notice of rescission for the 2018 rule due to the court’s ruling – identified as another required procedural step by USDA to ensure compliance. If USDA is unable to finalize the restoration of these school meal flexibilities prior to the inauguration of President-Elect Joe Biden, then the new administration may not move forward with the final rule, instead leaving in place the current requirements. The proposed rule is open for public comment until December 28, 2020. Author: KSCED Establishes Free Speech HotlineThe U.S. Department of Education (ED) unveiled a new “free speech hotline” this week, which is available for stakeholders to report First Amendment violations at institutions of higher education (IHEs). ED held an event on Tuesday to announce the hotline and to share free speech and “cancel culture” experiences at IHEs from students, faculty, and other individuals. Assistant Secretary for Postsecondary Education Robert King defined “cancel culture” as “intolerance to ideas that are not aligned with what could be described as progressive ideology.” The presentations highlighted instances at colleges across the country in which guest speakers invited to a college sparked student protests due to certain beliefs of the speakers. During his remarks, King said that cancel culture’s “corrosive philosophy is being embraced in the halls of Congress and the administration of colleges across the country and is working its way into corporate boardrooms, law firms and local governments.” Reports of free speech violations at IHEs can be reported via email to freespeech@. ED will direct the reports to the Office of General Counsel. Resources:Bianca Quilantan, “Education Department Decries ‘Growing Cancer’ of ‘Cancel Culture’ in Launching Free Speech Hotline,” Politico, December 8, 2020.Author: KSCIncoming Administration Announces Cabinet Picks – But No Ed Secretary YetThe transition team for President-Elect Joe Biden has announced a number of individuals they plan to nominate for cabinet-level positions. The health policy team and a number of economic and national security picks were announced last week, followed this week by some key domestic policy positions.Among those announced is Tom Vilsack, who is expected to reprise the position of Secretary of Agriculture, which he held for the full eight years of the Obama administration. Though Vilsack is considered a moderate choice, his selection has angered environmental activists, who have found him too reluctant to protect natural resources, and some progressive Democrats who felt like someone new should have the job.One of the more prominent candidates for the position was Representative Marcia Fudge (D-OH), who in the preceding weeks had made an effort to market herself as the best person for the job. With Vilsack as Secretary of Agriculture, the transition team announced that Fudge would be their nominee to lead the Department of Housing and Urban Development. While Fudge indicated that she was eager to take on the new role, some in Washington criticized the pick as limiting Fudge – who is Black – to one of the roles that is seen as serving largely minority communities. Fudge herself lamented that tendency in a November interview with Politico, where she said that “as this country becomes more and more diverse, we're going to have to stop looking at only certain agencies as those that people like me fit in.” “You know, it's always ‘we want to put the Black person in Labor or HUD.’”The Biden transition team has not yet announced who they will nominate to lead the U.S. Department of Education (ED). The Congressional Hispanic Caucus announced its support for Lily Eskelsen Garcia, the former head of the National Education Association (NEA), last week, but anti-union groups attacked Eskelsen Garcia in a full-page Wall Street Journal advertisement this week for her position on charter schools and teacher evaluations, calling her a “staunch opponent of school reform.” Disability rights advocates have also openly criticized Eskelsen Garcia because of NEA policy positions which held students with disabilities to a lower standard on assessments and discouraged schools from placing those students in general education classrooms, and for other off-the-cuff comments that advocates called “troubling.”Meanwhile, Secretary of Education Betsy DeVos’ official twitter account promoted an op-ed in the Washington Examiner asserting that “whoever is selected” for the position of Secretary of Education “will be a downgrade compared to Betsy DeVos” and that “DeVos has been one of President Trump’s best Cabinet picks, and she’s done it all in the face of blind hatred from the Democratic Party and its media allies.”?Resources: Michael Stratford, “Anti-Union Group Targets Potential Biden Education Secretary Pick,” Politico, December 8, 2020.Nicole Gaudiano, “Disability rights groups reject former union boss as potential education secretary,” Politico, December 10, 2020.Author: JCMDeVos Extends Student Loan Forbearance On December 4th, Secretary of Education Betsy DeVos extended the federal student loan administrative forbearance period, the pause in interest accrual, and the suspension of collections through January 31st, 2021. Under this extension, federal student loan borrowers are not required to make payments through January of 2021 but should they choose to do so, all payments will go towards the outstanding principal amount. Non-payments will continue to count towards the number of payments required under an income-driven plan, a loan rehabilitation agreement, or the Public Service Loan Forgiveness program. The administrative forbearance period for student loans began on March 20th, when DeVos directed the Office of Federal Student Aid to suspend required loan payments, stop collections on defaulted loans, and set interest rates to zero percent for a period of 60 days. On March 27th, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act which extended this relief through September 30th. On August 21st, DeVos extended the CARES Act student borrower relief to December 31st, 2020 under the President’s August 8th Memorandum on federal student loan relief providing for the extension of the CARES Act borrower benefits.In response to the January 31st, 2021 extension, DeVos stated that, “the coronavirus pandemic has presented challenges for many students and borrowers, and this temporary pause in payments will help those who have been impacted.” She also said that “the added time also allows Congress to do its job and determine what measures it believes are necessary and appropriate.” “The Congress, not the Executive Branch, is in charge of student loan policy.”Author: ASBNews ED Publishes CARES Act Spending PortalThe U.S. Department of Education (ED) revealed an “interactive online portal” in late November which it said was designed to “provide transparency” on States’ and other grantees’ use of Coronavirus Aid, Relief, and Economic Security (CARES) Act funding. The portal shows State-level spending data as of September 30th, slightly more than six months after the passage of the CARES Act, for the 50 States, Puerto Rico, and Washington, DC. Users can download spreadsheets showing district-level grant information.The portal purports to show that only a fraction of CARES Act education dollars –12 percent of the Elementary and Secondary School Emergency Relief Fund and 18 percent of the Governor’s Emergency Education Relief Fund – has been spent. In a statement from Secretary of Education Betsy DeVos, the agency asserts that this shows no more relief is needed for school districts. “States that neglected their obligations to provide full-time education, while complaining about a lack of resources, have left significant sums of money sitting in the bank,” said DeVos. “There may be valid reasons for [S]tates to be deliberate in how they spend CARES Act resources, but these data make clear there is little to support their claims of being cash-poor."In a press release, ED also said that the slow rate of spending “suggest[s] that States do not need the fund urgently” or that they are “banking” CARES Act funds to make up for anticipated revenue shortfalls in the new year. While reserving funds may “technically be permitted,” ED says, “the Department believes that is neither the intent of the emergency funding nor in the best interest of students, families, or teachers.”But States and districts have balked at these assertions from ED. They say that ED’s statements are misleading and that they capture only funds that are drawn down from the federal coffers, or liquidated, but not monies that have been obligated to a longer-term or later expenditure. This can include teacher employment contracts, where the district has committed to pay the teacher each month, but does not draw down that amount all at once. Advocates say they are concerned that the lack of transparency in the tool between obligation and expenditures could be misleading for lawmakers as they consider another round of stimulus spending.The data portal can be found here.Resources:Andrew Ujifusa, “DeVos and States Clash on Whether COVID-19 Aid is Just ‘Sitting in the Bank,’” Education Week: Politics K-12, November 20, 2020.Matt Barnum, “DeVos Says Schools are Sitting on Billions in COVID Relief. Here’s Why That’s Misleading,” Chalkbeat, December 8, 2020.Author: JCMTo 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 2020Contributors: Julia Martin, Kelly Christiansen, Andrew BallPosted by the California Department of Education, December 2020 ................
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