Today, AASA and 6 other education organizations filed an amicus brief in the Supreme Court case Endrew v. Douglas County School District. We were thrilled to be filing our first lead amicus and this amicus will be the lead amicus representing groups in the K-12 space. Joining us on the brief are the CASE, NAFIS, ASBO, AESA, NAESP, NASSP, and NREA. Our lawyers, Ruthanne Deutsch of Deutch Hunt and Chris Borecca of Thompson & Horton did a commendable job outlining the concerns of school administrators and why Congress, not the Courts, should determine what changes, if any, are needed to IDEA's educational benefit standard.

This case is considered the most important IDEA case that Court has decided since Rowley as it could redefine the concept of educational benefit in the context of providing FAPE in the LRE. Despite losing in the lower courts, the Petitioner (Endrew) has support from the Obama Administration (among others) and it is not at all clear how SCOTUS will rule. You can read our brief here to better understand the massive implications for districts (financial, procedural and administrative) if the Court rules in favor of the Petitioner. 

Last week, in the waning hours of the Obama Administration, the U.S. Department of Education released the final regulation on the calculation of significant disproportionality under IDEA. Here is a press release that summarizes the reg from ED: http://www.ed.gov/news/press-releases/fact-sheet-equity-idea States and districts are not required to comply with these regulations until July 1, 2018. It is our hope that the Congress will delay the implementation of this regulation and address the important issue of significant disproportionality through the reauthorization of IDEA rather than through a Department regulation.

AASA appreciates how many school leaders took the time to comment on the IDEA regulation, and as we read through the 500+ pages of response and clarifications from ED we see that your comments forced the Department to address many of our objections with the proposed regulation. Unfortunately, while ED has been forced to contemplate and respond to our many criticisms of their proposal (albeit somewhat flippant responses at times), they did honor five of our of our requests:

• States have flexibility not to identify significant disproportionality in an LEA that exceeds a risk ratio threshold if they make reasonable progress in lowering the applicable risk ratio or alternate risk ratio in each of the two consecutive prior years.
• They eliminate as a category of analysis children with disabilities ages 6 through 21 inside a regular class more than 40 percent of the day and less than 79 percent of the day
• Provide more flexibility around the n-size and cell-size that states must use. States need not calculate risk ratios for any racial or ethnic group that does not meet minimum cell or n-sizes set by the state.
• Allowing States to set different risk ratio thresholds in order to reasonably identify significant disproportionality for categories with different degrees of incidence rates, and, therefore, different degrees of disparity.
• Not mandating districts be held responsible for significant disproportionality for students with the seven low-incidence impairments under IDEA.  

What does this mean for districts? The final regs contain the following:

• A rebuttal presumption that a minimum cell size of no greater than 10 and n-size of no greater than 30 are reasonable. We believe ED does not have the authority to put pressure on states to adopt a certain n size or cell-size and this aspect of the regulation is wholly inappropriate.
• ED has significantly expanded the focus on significant disproportionality in the discipline context. The regs clarify that States must address significant disproportionality in the incidence, duration, and type of disciplinary actions, including suspensions and expulsions, using the same statutory remedies required to address significant disproportionality in the identification and placement of children with disabilities.
• ED has refused to grant critical flexibility to districts that are found to have significant disproportionality that would allow these LEAs to be excused from setting aside 15% of IDEA funds for CEIS for the following reasons: 1) an exceptionally low student population where the addition or subtraction of a few students results in meeting/not meeting the State’s risk ratio, 2) a school serving a specific subgroup of students with disabilities, 3) a highly regarded program for students with disabilities that attracts students from across the State or region, 4) residential facilities or group homes within the district, 5) a recent environmental catastrophe specific to the region that has substantially impacted the health of children throughout the district, 6) very low rates of special education identification, restrictive placements or exclusionary discipline for all students and 7) a highly mobile student population.
• Districts can use funds for CEIS for students currently enrolled in special education. While we appreciate this flexibility, it is not authorized in the statute.
• The Department estimates that districts will have to transfer between $298.4 and $552.9 million that they use under Part B to provide direct services for students with disabilities to early intervening services.We believe these estimates are quite low. 

The U.S. Department of Education released final ESSA accountability regulations. As we said earlier, our three main concerns from the draft were addressed, albeit not perfectly.

Regarding the requirement for a summative indicator, the changes made were a step in the right direction, but did not fully address our concerns. The final regulations allow states to use a dashboard to explain how schools are doing on different indicators and to use ratings within ESSA as their summative rating without identifying a specific grade.

As for the timeline for identification of schools, the final regulations provide states with an extra year over the draft regulations to identify schools in need of support, requiring this identification starting in the 2018-19 school year. State accountability plan deadlines were also pushed back to April 3 or September 18 (from the proposed March and July deadlines).

We detailed the final regulations for transportation of students in foster care previously here. The final rule is much more closely aligned with the statute of ESSA, requiring LEAs to collaborate with state and local child welfare agencies to develop procedures around which agency will be responsible for the payment of transportation services.

A full description of the changes made is found in the italicized sections of this document.

Sequester is so 2013. When it comes to the terms for obscure Congressional procedures that we need to know for 2017, the new ‘it’ phrases are budget reconciliation and Congressional Review Act. This blog post is designed as a quick overview of each term, why it is relevant in 2017 and how it relates to AASA advocacy.

Congressional Review Act:  

• Background: We know that Congress writes the bills that become law. When it comes to providing additional detail to support implementation of these laws, the relevant agencies issue regulations. Even in granting rulemaking authority to various agencies, Congress does maintain vigilance over the rulemaking process, through a little-used procedure called Congressional Review Act (CRA). CRA was created in 1996 as part of the Small Business Regulatory Enforcement Fairness Act. Among other things, the law provided for Congressional review of agency rulemaking. Relevant to this blog post and what we may expect with a Trump administration, Congress can use the CRA to overturn a rule issued by a federal agency. Since its creation in 1996, the CRA has only been successfully used once, in 2001 to nullify an ergonomics standards rule proposed by the Occupational Safety and Health Administration. In addition to this one successful CRA, more than 40 joint resolutions for disapproval have been introduced—but not adopted—since the law was enacted. 
• Process: In order for a CRA to stop/halt a final regulation, here’s what must happen: The relevant agency (in our case, US Education Department) provides a report to each chamber of Congress and the Comptroller General that contains a copy of the rule, a summary/general statement related to the rule, and the proposed effective date. At this point, each Chamber of Congress has a specified time period in which they can consider and take action on a motion to disapprove the rule. If both Chambers move to disapprove the rule, it goes to the President, who can either sign or veto. Once signed, the CRA renders any included rule/regulation as null and void. That is, an rule set to take effect would not take effect, and even provisions already implemented would be negated. A CRA cannot be filibustered. A CRA can be applied to a rule in its entirety only; it is ‘all or nothing’, meaning that Congress cannot use the CRA to rescind certain pieces of a rule while leaving others in tact.
• Education Implications: The CRA can be applied to any regulation issued in the past 60 business days. For Congress, that means anything from May 2016 on. From an education perspective, that would include the Every Student Succeeds Act (ESSA) accountability regulations and the Higher Education Teacher Preparation regulations, and depending on what is released over the remainder of the calendar year, could also include ESSA supplement/supplant; and IDEA significant disproportionality. Additional agencies could be subject to the CRA, and we follow these following regulations: Department of Labor Over Time Rule; Environmental Protection Agency PCB/Light Ballasts in Schools; and Federal Communications Commission Lifeline (home phone connectivity).
• Then What?: If the CRA is successful and, for example, the ESSA accountability regulations are rescinded, what would that look like for schools? How would state move forward in crafting their accountability work book? If the ESSA accountability regulations are repealed, the CRA provides that another rule that is significantly similar cannot be produced. That is, the agency cannot issue another rule that is substantially similar to the rule that was rescinded. CRA does not clearly define what ‘substantially the same’ means, so that prohibition would be subject to interpretation. 
• You can read more in this Frequently Asked Question: Congressional Review Act paper, as prepared by the Congressional Research Service.

Budget Reconciliation:  

• Background: In its simplest form, budget reconciliation can be described as a provision within a budget resolution that directs one or more committees to submit legislation changing existing law in order to bring federal spending into conformity with the budget resolution. It is an expedited process that allows for consideration of tax, spending and debt limit legislation. This could include requirements for the committee to move legislation that reduces mandatory spending (like Medicaid or Medicare, though it cannot be used to change Social Security) or increases revenues as needed. It should be noted that it is almost 100% unlikely that any reconciliation in 2017 would be anything other than cuts in spending. Increases in revenues (tax increases) are a non-starter. The process of reconciliation was created in the Congressional Budget Act of 1974. Congress has enacted 20 budget reconciliation bills since 1980. 
• Process: Reconciliation is ‘triggered’ when the House and Senate agree on a budget resolution that includes reconciliation directives for certain committees. The directives give certain House and Senate committees a timeline by which they must move legislation that does one of the three following: changes spending by a certain amount over a specified time; changes revenues by a certain amount over a specified time; or changes the public debt limit by a certain amount. ‘Changes’ can include either an increase or a decrease; the directive will specify either ‘cut’ or ‘increase’. Current interpretation means that there can be a maximum of three reconciliation bills in a year (one each of the three changes mentioned above). The reconciliation process has some advantages in the Senate, mainly that it can be passed with a simple majority (as opposed to the 60 votes typically needed for more controversial legislation), debate is limited to 20 hours
• Education Implications: Budget reconciliation instructions can be applied to any committee. In terms of policies that we track that could be subject to reconciliation instructions, they include: changes to the Affordable Care Act; cuts to Medicaid that translate into block-granting the program; changes/eliminations to the CHIP program; and more. We need to see how the House and Senate choose to apply the limited number of reconciliation directives they can apply. While ACA seems an easy target, concerns related to the phasing in of these changes to increase the likelihood that the focus could be on Medicaid of CHIP. 
• Then What?: Once adopted, the proposal becomes law, and Congress will move forward to implement the adopted change, which in this scenario is all but certain to include funding cuts.
• You can read more in this excellent summary from the Center on Budget and Policy Priorities. 

AASA joined a handful of other national education organizations in a letter that urges Congress to complete its appropriations process. While AASA is opposed to a federal shutdown, we are also opposed to a piece-meal, kick-the-can-down-the-road approach to federal funding currently in place and being considered, the continuing resolution. You can read the letter here.

Other groups signing the letter include 

• Association of Educational Service Agencies
• Association of School Business Officials International
• Child Welfare League of America
• Children’s Health Fund
• Every Child Matters
• First Focus Campaign for Children
• MomsRising
• National Association for the Education of Homeless Children and Youth
• National Respite Coalition
• National Rural Education Advocacy Consortium
• National Rural Education Association
• Public Advocacy for Kids
• Save the Children Action Network

The number of “New Americans,” or immigrants and the children of immigrants, in U.S. schools has increased significantly in number and proportion, according to the National Center for Education Statistics’ brief report, New American Undergraduates: Enrollment Trends and Age at Arrival of Immigrant and Second-Generation Students, which doesn't come as a surprise.

The report hones in on Asian and Hispanic students, and is broken down by four questions:

• How has the composition of New American (immigrant and second-generation) undergraduates changed over time? At what ages did immigrant students arrive in the U.S., what is their citizenship status, and how do these characteristics vary by students’ race/ethnicity?
• How do the background characteristics and academic preparation of Asian and Hispanic New American students differ?
• What are the postsecondary enrollment characteristics of Asian and Hispanic New American students in terms of the institutions they attend, whether they attend full time, and their major fields of study?
• How do selected postsecondary enrollment characteristics of immigrant undergraduates vary by the age at which they arrive in the United States?

Key to the report is the examination of students’ age at arrival in the U.S., and how academically prepared students are for college and whether they enrolled in college. As well as the data on college credit earned while in high school by Asian and Hispanic immigrants and second-generation students. 

The study findings reveal that immigrants’ age at arrival in the U.S., and their age of postsecondary enrollment are related and that immigrants who arrived as children (under age 12), were more likely than those who arrived as adolescents or adults, to earn college credit or AP credits in high school and less likely to need to need a developmental course in college. This implies that those who arrive as children have more time and opportunity to prepare for college, according to the brief.

Immigrants arriving in the U.S. as children and adolescents were also more likely to attend postsecondary institutions full-time, than adult immigrants were.

Another important chart to take a look at is the Major Field of Study by Age at Arrival, which shows that immigrants who arrived as children and adolescents majored in STEM fields and social studies at a higher rate than those who arrived as adults. Conversely, a higher percentage of adult arrivals majored in health care fields.  

Background: The Secure Rural Schools (SRS) program was intended as a safety net for forest communities in 42 states.  SRS payments are based on historic precedent and agreements removing federal lands from local tax bases and from full local community economic activity.  The expectation is that the federal government and Congress will develop a long-term system based on sustainable active forest management. Congress needs to act on active long term forest management programs generating local jobs and revenues. 

Relevance: As we begin the final weeks of 2016 and the 114^th Congress, the Secure Rural Schools and Communities Act (Forest Counties) remains zero-funded. While Congress funded SRS for 2014 and 2015, they have not funded SRS for 2016, meaning that 775 rural counties and 4,400 schools in rural communities and school districts served by the SRS program are currently receiving zero funding through this program. With these cuts, forest counties and schools face the loss of irreplaceable essential fire, police, road and bridge, community and educational services.  We, at a minimum, need Congress to approve a one-year funding fix (including retro-active funding) for the current school year. As it stands right now, there is zero funding available for the current school year. If Congress is feeling ambitious, a two- or three-year funding fix would be welcome, but the overall goal is to secure a program extension/reauthorization. The broader bill that the program falls under includes the politically divisive topic of forest management, and the politics around whether to cut trees or not carries a weight that has, to date, left the program unauthorized and now, unfunded. 

Call to Action: Contact your members of Congress (your Senators and your Representative) to discuss Secure Rural Schools (SRS, or Forest Counties).  Let them know what your budget looks like without this funding and that they need to do something for SRS funding. And, ask them to relay their concern and desire for action with Congressional leadership.  It is critical that Leadership hears from Members that SRS and Forest Management are issues that must be addressed as Congress comes back to work for the Lame Duck session.  Create your own story about what happens if we get nothing. 

In addition to your Senators and Representative, please contact any House/Senate leadership from your state. A full list of House and Senate leadership is below: 

Please contact the advocacy team if you need email addresses for the education staffers in any of these offices. 

House of Representatives: Leadership

• Speaker: Rep. Paul D. Ryan (R-WI) 
• Majority Leader: Rep. Kevin McCarthy (R-CA) 
• Majority Whip: Rep. Steve Scalise (R-LA) 
• Republican Conference Chairman: Rep. Cathy McMorris Rodgers (R-WA) 
• Republican Policy Committee Chairman: Rep. Luke Messer (R-IN) 
• Democratic Leader: Rep. Nancy Pelosi (D-CA) 
• Democratic Whip: Rep. Steny Hoyer (D-MD) 
• Assistant Democratic Leader: Rep. James Clyburn (D-SC) 
• Democratic Caucus Chairman: Rep. Xavier Becerra (D-CA)  

US Senate Leadership

• Republican Majority Leader: Mitch McConnell (R-KY) 
• Majority Whip:  John Cornyn (R-TX) 
• Republican Conference Chair: John Thune (R-SD) 
• Republican Policy Committee Chair: John Barrasso (R-WY) 
• Republican Conference Vice Chair: Roy Blunt (R-MO) 
• Democratic Minority Leader: Harry Reid (D-NV) 
• Democratic Whip: Richard Durbin (D-IL) 
• Democratic Conference Committee Chair: Charles Schumer (D-NY) 
• Democratic Conference Committee Vice Chair & Policy Committee Chair: Patty Murray (D-WA) 

Preparing for a new Congress and Administration

Washington, D.C. is in a bit of a funk. As the 114^th Congress draws to a close, Congress is set to leave town in a few days without fully completing its federal budgeting process (yet again). There is a sense of bewilderment by lobbyists, congressional and agency staff and even members of Congress about what kind of political environment they will face when they return in January.

As a staunchly non-partisan organization, AASA is in many ways lucky compared to other key education groups. We have great relationships on both sides of the aisle. We know that our members depend on us to advance the best policies possible for students and school systems regardless of who thinks of them. This allows our team to be flexible, pragmatic, aggressive and independent in our defense of the public policy interests of superintendents.

While this election was devoid of much serious conversation about education policy, now that we know we are working with President-elect Trump, we are determined to make it a meaningful relationship. We didn’t hide our displeasure with the Obama Administration’s Race-to-the-Top initiative, or conditional ESEA waivers or expansion of the Civil Rights data collection. The Department knew what we thought and they chose to do things differently than we would have liked, which is their prerogative. Similarly, we will call it like we see it with the Trump Administration. And, as we look ahead to next year and try and crystalize what Trump may want to do in the K-12 education space, it’s a bit of a mixed bag.

On the one hand, one of the most controversial fiscal regulations on school districts ever proposed governing the distribution of state and local Title I dollars is likely to disappear (see supplement not supplant call-to-action). We could also see a less aggressive role for the Office of Civil Rights under a Trump Administration and a reduction in data collection requirements on districts and proactive investigations. We could also see potential changes to regulations at the Environmental Protection Agency, the Department of Labor, and related to the Affordable Care Act. These changes will likely be wins for AASA members, from a policy point of view. 

On the other hand, we will likely find ourselves spending significant time and energy fighting draconian cuts to education. With control of both chambers, Republicans could try and lift spending caps on defense at the expense of non-defense discretionary spending, of which education is included. This would mean that we could see reductions in our key federal education funding streams at a critical time.

Medicaid reform is also a concern we will be tracking. Our policy team works closely with our Children’s Department to incentivize greater healthcare coverage for students. The untimely need to reauthorize the Children’s Health Insurance Program (CHIP) coupled with the possibility that fewer Medicaid-eligible students will receive coverage if Medicaid expansion under the Affordable Care Act is repealed should be of great concern to school leaders.

While Trump disagrees with members of his own party about spending sometimes, there’s a possibility that there could be broad support for finding and funneling “new” dollars toward school choice. While Trump’s $20 billion-dollar school choice plan is short on details, most Beltway insiders do not believe that attempts to make Title I dollars portable to private schools will go far next Congress. The majority of the Congress was re-elected and they are proud to see the implementation of ESSA move forward and know that Title I portability would fundamentally alter successful enactment of the most heralded legislative accomplishments in recent memory.  However, attempts to voucherize IDEA funding, create a federal tuition tax-credit system, or expand the floundering D.C. voucher program are all strong possibilities. There is also some speculation that Trump could try to use the presidential pulpit to get states to repurpose state dollars.  

As we consider the Trump policies we probably will not like, there is comfort in knowing that we still have the same Chairman and Ranking Member on the Senate Education Committee: U.S. Sens. Lamar Alexander (R-Tenn.) Patty Murray (D-Wash.) The thin GOP majority in the Senate and the continuation of the 60-vote threshold make it more likely that reasonable, bipartisan policy and funding measures prevail in that chamber. In contrast, the House Education Committee will be led by a known firebrand, U.S. Rep. Virginia Foxx (R-N.C.), who has been more focused on higher education policy than K-12.

While AASA would have preferred a nominee to lead the Department of Education with not only experience within education, but a track record reflecting support for public schools, we will to try and build a strong working relationship with Betsy DeVos and her team, and continue to honestly and actively represent the views of school leaders in Washington, D.C. To the extent that education policy is on the menu, we will be at the table.