Federal Update April 06, 2018 - Government Affairs (CA ...



The Federal Update for April 6, 2018From:Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen TOC \o "1-3" \h \z \u News PAGEREF _Toc510779982 \h 1ED Looks for Ways to Stop Information Leaks PAGEREF _Toc510779983 \h 1ED Hosts School Safety and Climate Summit PAGEREF _Toc510779984 \h 2DeVos May Reverse Direction on For-Profit Accreditor PAGEREF _Toc510779985 \h 3Reports PAGEREF _Toc510779986 \h 4GAO Report Finds Racial Disparities in School Discipline PAGEREF _Toc510779987 \h 4NewsED Looks for Ways to Stop Information Leaks A memorandum prepared for a Senior Policy Advisor to Secretary of Education Betsy DeVos details potential actions to prevent the unauthorized released of information by U.S. Department of Education (ED) staff. From the contents of the memo, it is clear that ED officials have asked their internal enforcement divisions to identify ways to prevent employees and others from leaking information to the press.In the memo, ED’s Office of Inspector General (OIG) notes that there are three incidents involving the release of non-public information to journalists and publications include the Washington Post and Politico which ED staff asked OIG to investigate. But, OIG says, the office usually focuses on federal felonies or instances of “serious misconduct” by ED employees. The decision to pursue a matter, the office says, depends on the likelihood that a violation of law or policy can be proven and the ability to take substantive action. OIG notes that there is little ED policy or guidance regarding the unauthorized disclosure of information, with the exception of personally identifiable information or proprietary information from companies. Only one of the unauthorized releases – regarding draft budget information – falls into the “sensitive but unclassified” category, meaning that its release is prohibited and subject to disciplinary action. Therefore, there is little likelihood of substantive action. OIG also notes that ED has had difficulty identifying which employees released the information, given the large number of employees – and even outside individuals like Congressional staff – which often see these documents. In addition, the memo notes that there may be occasions where leaks would be protected by “whistleblower” laws and policies.OIG also notes that this problem dates back at least to 2012, when the office issued an audit report regarding the negotiated rulemaking process. In it, OIG stated that “a lack of written protocols increases the risk to ED that sensitive information may be inappropriately shared with parties who are not privileged to such information.” But in that case, ED officials responded that “it was understood that sensitive information should not be shared” and declined to take further action. The memo suggests a number of actions for ED to take, including developing policies prohibiting release of nonpublic documents, providing training to employees, and determining if additional information control protections should be used for electronic documents. The memo was released by OIG and is not considered subject to an exemption under the Freedom of Information Act which would allow it to be kept private. The OIG memorandum is available here.Resources:Valerie Strauss, “Education Secretary Betsy DeVos Asked Whether Leakers Could Be Prosecuted, Internal Report Shows,” Washington Post, April 4, 2018.Author: JCMED Hosts School Safety and Climate SummitThe U.S. Department of Education (ED) heard from a variety of stakeholders on Wednesday regarding the 2014 “Dear Colleague” letter addressing school discipline disparities. Two separate listening sessions were held this week, one including stakeholders and organizations who support the guidance, and the other comprised of those who have concerns about it. The listening sessions were held as part of the work of the Federal Commission on School Safety, which has identified the 2014 guidance as one item that it plans to review over the next few months. The Commission, chaired by Secretary of Education Betsy DeVos, was established in the aftermath of the school shooting in Parkland, Florida earlier this year.While ED has hosted a number of listening sessions over the past year on the school discipline guidance, Wednesday’s event was the first time Secretary DeVos has participated. Also taking part in the roundtable discussion were Acting Assistant Secretary for Civil Rights Candace Jackson, Acting Assistant Secretary for Elementary and Secondary Education Jason Botel, and Acting Assistant Attorney General for the Department of Justice’s Civil Rights Division John Gore. The guidance in question lays out legal and statutory requirements, and states that schools may be in violation of federal civil rights law if they are found to have disciplinary policies that lead to disproportionate punishment of students in one racial group compared to their peers. It also discourages “zero tolerance” policies as ones which are more likely to be disproportionately applied to minority students. Supporters of the guidance say that it is key to protecting the civil rights of overlooked students, while critics have frequently argued that teachers are now afraid to discipline students at all due to the risk of a federal investigation. Topics discussed during the first session included the need to address the unique needs of students holistically, how the guidance helped force conversations around school discipline practices, whether implementation of reforms has been problematic, and the importance of a safe school climate to improving student achievement. Participants of the second session discussed whether teachers were being denied discretion in discipline decisions, leading to disruptions and violent episodes, what they saw as legal and procedural flaws in the previous administration’s approach to enforcing the guidance, concerns about districts underreporting school discipline issues, and the impact of school violence on both teacher retention and student well-being.Wednesday’s discussions were closed to the press in order to “protect the identities of participants who fear retaliation, are in active litigation or shared deeply personal stories involving family members and/or minors,” according to an ED press release. The listening sessions were held the same day an awaited report on school discipline disparities drafted by the Government Accountability Office was published. ED has not indicated a timeline for when it will make a decision as to whether rescind the Obama-era guidance.Resources:Evie Blad, “DeVos Meets with Supporters, Critics of Discipline Rules as GAO Says Racial Disparities Persist,” Education Week: Rules For Engagement, April 4, 2018.U.S. Department of Education Press Release, “Secretary DeVos Hosts School Safety and Climate Listening Sessions,” April 4, 2018.Author: KSCDeVos May Reverse Direction on For-Profit Accreditor Secretary of Education Betsy DeVos announced this week that she will consider reinstating recognition of the Accrediting Council for Independent Colleges and Schools (ACICS), a for-profit accreditor that was stripped of its authority by the Obama administration for lax oversight.? This announcement comes after a federal judge ordered her to review ACICS’ 2016 petition seeking renewal of its accreditation authority.? The judge called the Obama administration’s decision process flawed for failing to consider relevant evidence.Even though the judge rejected ACICS’ request to reverse its termination, DeVos has temporarily restored its status as a federally-recognized accrediting agency pending her final decision. ?If nothing else, this should give any schools still accredited by ACICS more time to find another accreditor, though the vast majority have already moved on. “As the court ordered, we will fairly consider all of the facts presented and make an appropriate determination on ACICS’s petition,” DeVos said, in a statement earlier this week.? DeVos has asked ACICS to submit any additional evidence in support of its case by May 30th, promising that a “senior [Department of Education] official” will respond on or before July 30th.? Although DeVos has offered no hint regarding the final outcome, many opponents are already using this action to paint DeVos as a friend to the for-profit industry.“It is clear from the available record that [ACICS] cannot be trusted as a conduit for federal taxpayer dollars,” said Robert Shireman, a senior fellow at the Century Foundation, a think tank. “Yet Betsy DeVos seems intent on approving the agency no matter what the record indicates.”? The Century Foundation sued the U.S. Department of Education (ED) in February, seeking the release of records on ACICS. In the documents released to the think tank, the accreditor details how it made changes to become a better steward of federal taxpayer dollars. The group said it removed board members with conflicts of interest, increased on-site evaluations and beefed up its review of student outcomes.The fact that the Century Foundation is attacking DeVos, who is only reviewing the 2016 petition under a federal court order, highlights the hyper-partisan culture in Washington.? If DeVos decides to reinstate ACICS on a more permanent basis, she is likely to receive significant pushback from stakeholders, as well as from Members of Congress.? DeVos’ relationship with Congress – including top-ranking Republicans – is already uneasy and such a decision may lead to calls for DeVos to testify before Congressional committees.? Resources:Danielle Douglas-Gabriel, “Betsy DeVos to Reconsider the Fate of Ousted For-Profit College Accreditor,” Washington Post, April 4, 2018.Author: SASReports GAO Report Finds Racial Disparities in School DisciplineThe same day that Secretary of Education Betsy DeVos met with stakeholders to hear from supporters and critics of a 2014 guidance document on racial disparities in school discipline, the Government Accountability Office (GAO) – a non-partisan, congressional watchdog – released a report revealing that African-American students face harsher discipline for similar violations than their white peers. In preparing the report, which was requested by Ranking Member of the House Committee on Education and the Workforce Bobby Scott (D-VA) and Congressman Jerrold Nadler (D-NY), GAO analyzed national civil rights data for the 2013-2014 school year and interviewed officials from five school districts in five different States, as well as officials from the Departments of Education and Justice. GAO found that the racial discipline disparities began in preschool and existed across the board, regardless of the type of disciplinary action, the level of school poverty, or the type of public school attended. The types of disciplinary actions reviewed by GAO include in- and out-of-school suspension, expulsion, referral to law enforcement, corporal punishment, and school-related arrests. African-American students accounted for 15.5 percent of all public-school students yet represented approximately 39 percent of students suspended from school. Officials in the school districts GAO reviewed described some efforts the districts have taken to reduce the identified disparities. Some of these actions included reducing exclusionary discipline and implementing alternative discipline models that emphasize preventing challenging student behavior. In addition to the racial disparities identified, GAO also discovered that students with disabilities and boys were disciplined disproportionately across each of the disciplinary actions examined. The analysis showed though that African-American students were particularly overrepresented among those students who were suspended from school, received corporal punishment, or had a school-related arrest. Supporters of the 2014 school discipline guidance enacted by the previous administration are likely to use GAO’s findings to boost their argument to preserve the guidance, while some critics of the guidance have responded to the GAO report saying that the scope is too narrow to draw broad conclusions. The full GAO report on school discipline is available here.Resources:Erica L. Green, “Government Watchdog Finds Racial Bias in School Discipline,” New York Times, April 4, 2018. 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 webinars. Topics cover a range of issues, including grants management, the Every Student Succeeds Act, special education, and more. To view all upcoming webinar topics and to register, visit webinars.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 2018Contributors: Julia Martin, Steve Spillan, Kelly Christiansen ................
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