Federal Update July 28, 2017 - Government Affairs (CA Dept of Education)

From: Michael Brustein, Julia Martin, Steven Spillan, Kelly Christiansen Re: Federal Update Date: July 28, 2017

LEGISLATION AND GUIDANCE 1 ED Makes Changes to ESSA State Plan Review Process...... 1 ESSA State Plan Template Updated...... 2 ED Aligns EDGAR Regulations with ESSA...... 2 NEWS 2 Senators Call on ED to Move on Loan Forgiveness Requests...... 2 Lawmakers Pressure DeVos on School Discipline Policies...... 3 President Trump Donates Part of Salary to ED...... 4 REPORTS 4 NAACP Offers Recommendations to Improve Charter Schools...... 4

LEGISLATION AND GUIDANCE

ED Makes Changes to ESSA State Plan Review Process

The U.S. Department of Education (ED) is reportedly changing how it provides feedback on State plans under the Every Student Succeeds Act (ESSA). Secretary of Education Betsy DeVos has received blowback in recent weeks in response to preliminary feedback from ED on some ESSA State plans with stakeholders, advocates, and lawmakers expressing concern that ED’s comments were too prescriptive and went beyond the letter of the law.

The new process will include a phone call with States prior to ED releasing an official feedback letter. Dur- ing this call, ED officials will review any issues that peer reviewers identified in the State’s plan. States will have an opportunity here to explain any problems identified by ED. If those issues are explained to ED’s satisfaction, they may not be included in the official feedback letter that is released publicly.

Stakeholders and advocates are sure to raise concerns over this change given that 9 States who have turned in their plans have received feedback already. Making modifications in the middle of the process raises issues regarding consistency and fairness for States. In addition, there could be a concern over transparency if the discussions taking place over the phone are not released publicly.

Liz Hill, a spokeswoman for ED confirmed the shift in a statement Thursday. “The Department is commit- ted to working with States to help ensure their plans align with the statutory requirements of the Every Stu- dent Succeeds Act,” Hill said in a statement. “Part of that commitment, in addition to the required peer re- views, is maintaining an open dialogue with State leaders. That feedback is intended to provide an infor- mal opportunity to address any potential concerns prior to plans being submitted to Secretary DeVos for review. Secretary DeVos looks forward to reviewing plans and approving every plan that complies with the law.”

www.bruman.com THE FEDERAL UPDATE 2 July 28, 2017

Resources: Alyson Klein, “Ed. Dept. Weighs Changes to Process for ESSA Feedback, Sources Say,” Education Week: Politics K-12, July 27, 2017. Author: KSC

ESSA State Plan Template Updated

The U.S. Department of Education (ED) has published in the Federal Register an updated version of the consolidated State plan template for plans under the Every Student Succeeds Act. The revised template makes only one change, to Appendix B, from the previous version published in March.

ED clarifies that each State educational agency (SEA) must provide a written response describing how it will meet the assurances required under Section 427 of the General Education Provisions Act (GEPA). The March 2017 version of the template only included a notice of the requirements under Section 427 of GEPA and not a response space for the SEA to describe how it is meeting those requirements.

The updated template is currently open for public comment until August 23, 2017. Although the public comment period closes shortly before the second deadline for State plan submission, SEAs should plan on including this information in their State plans for the upcoming school year.

Public comments can be submitted here.

Author: KSC

ED Aligns EDGAR Regulations with ESSA

The U.S. Department of Education (ED) will publish a rule in the Federal Register on July 31, 2017 to align regulations governing 34 CFR Part 75 and 77 of the Education Department General Administrative Regula- tions (EDGAR) with the statutory definition of “evidence-based” found in the Elementary and Secondary Education Act, as amended by the Every Student Succeeds Act.

The changes are primarily technical and do not entail major substantive policy changes. The alignment en- sures that all competitive grant programs in ED can continue to make use of the provisions for evidence-based grant-making in EDGAR.

ED will accept public comments on the rule. ED intends to consider submitted public comments in deter- mining whether to make further technical changes to the regulations or engage in additional rulemaking. The regulations will be effective on July 31, 2017.

The Federal Register notice is available here.

Author: KSC

Senators Call on ED to Move on Loan Forgiveness Requests

Senator Richard Durbin (D-IL) is attempting to garner support for forcing the U.S. Education Department (ED) to move on numerous student loan forgiveness claims that have sat dormant under the Trump Admin- istration. According to records released by Durbin, ED has not approved any applications for student-loan forgiveness in cases of possible fraud since President Donald Trump took office. The Senator blasted ED for its inaction and for a June decision to delay and rewrite Obama-era rules that would have made it easier for students to get loans forgiven if they were deceived by their schools.

“This response shows that while [ED] has illegally delayed the new borrower defense rule, it has also stopped processing federal student loan relief under current regulations for tens of thousands of defrauded borrowers,” Durbin said in a statement, “[ED] can’t ignore these borrowers any longer.” Durbin and four other Democratic senators sent a series of questions to ED on May 17th amid concerns that the pipeline to student-loan forgiveness had stalled under the Trump Administration. Also signing the letter were Senators Patty Murray of Washington, Chuck Schumer of New York, Sherrod Brown of Ohio, and Elizabeth Warren of Massachusetts.

By law, students can apply to have their federal loans discharged if their college used illegal and deceptive tactics to persuade them to borrow money to attend. The statute has become a last line of defense for many former students of defunct for-profit schools ITT Technical Institutes and Corinthian Colleges. Both schools spent their last few years clouded by allegations of fraud, deceptive marketing and steering students into predatory loans. Consumer advocates had hoped the evidence in the State and federal cases against the schools would create a clear path for loan discharge, but many applicants continue to wait for an answer.

According to a response to Durbin’s questions, Acting Under Secretary James Manning wrote that “no borrower defense applications have been approved between Jan. 20, 2017, and today.” The records also re- vealed that ED has continued to receive new applications from borrowers who say they were victims of fraud. In total, ED said it received nearly 15,000 applications between January 20th and July 5th, mostly from Corinthian borrowers and from former students of ITT Tech. Overall, there are more than 65,000 pending claims for relief. Although most come from Corinthian and ITT students, others are from individu- als who attended schools that are still in operation, including DeVry University and the University of Phoenix.

In June, Secretary of Education Betsy DeVos said that “promises made to students under the current rule will be promises kept” and added that her office was working to discharge more than 16,000 loans that were previously approved to be erased under President Obama. In the same announcement, DeVos un- veiled plans to rewrite an Obama-era regulation known as the borrower defense to repayment rule, which aimed to quicken the path to loan forgiveness when schools commit fraud, and to hold those schools finan- cially responsible. DeVos called it “a muddled process that’s unfair to students and schools.”

The letter from Acting Under Secretary Manning says that while ED “is in the process of establishing reports including borrower defense information, there are currently no regularly produced reports provided to senior officials. Information is provided upon request.” Meanwhile, borrowers who are awaiting a decision from ED have continued to accrue loan interest, which amounts to $143 million. While most borrowers are given a grace period from their loan payments while they wait, over the next six months that period is set to expire for 31,000 borrowers. Manning wrote that those borrowers “could have their forbearances extended if their applications are still pending.”

“With the large backlog of claims we inherited from the Obama Administration, we are working diligently to set up a process to start approving claims again,” said ED spokeswoman Liz Hill. She said she under- stands the frustration of applicants awaiting a response and is confident that ED will sort through many of the claims in the coming months.

Resources: Danielle Douglas-Gabriel, “Trump Administration is Sitting on Tens of Thousands of Student Debt Forgive- ness Claims,” Washington Post, July 27, 2017. Collin Binkley, “Records: Student-loan forgiveness has halted under Trump,” AP News, July 27, 2017. Author: SAS

Lawmakers Pressure DeVos on School Discipline Policies

A group of more than 60 Democratic lawmakers sent a letter to Secretary of Education Betsy DeVos this week to request information on the U.S. Department of Education’s (ED’s) plan to work with States to re-

duce exclusionary discipline in public schools. The Obama Administration made reducing discipline policies that disproportionately affected minorities a key focus during its last years in office, but DeVos has not outlined a specific position on the issue.

The lawmakers express support for implementing positive behavioral interventions and supports, multi- -tiered systems of support, universal design for learning, trauma-informed care, crisis intervention, and de- escalation strategies, as they can lead to decreased exclusionary discipline practices. In addition, they urge the Trump Administration to continue the work of the previous administration in reducing exclusionary discipline practices.

The letter also reminds ED that the Every Student Succeeds Act (ESSA) contains provisions regarding exclusionary discipline, including requirements in Title I-A that State educational agencies describe in their State plans how they will support local educational agencies in improving school conditions by reducing aversive behavioral interventions and reducing overuse of discipline practices that remove students from the classroom.

The lawmakers request that DeVos provide specific information on the steps ED plans to take through ESSA implementation, and generally, to reduce exclusionary and aversive discipline practices.

The letter to DeVos is available here.

Author: KSC

President Trump Donates Part of Salary to ED

White House Press Secretary Sarah Huckabee Sanders announced in a press briefing on Wednesday that President Trump will donate his salary for the second quarter of this year to the U.S. Department of Educa- tion (ED).

The amount donated totals $100,000 and will be used to support a science, technology, engineering, and mathematics (STEM)-focused camp for students. President Trump has proposed cutting ED’s budget by $9 billion for the next fiscal year, including eliminating certain funding streams that support STEM-related after-school activities.

Secretary of Education Betsy DeVos briefly spoke at the press briefing on Wednesday to thank the Presi- dent for his donation. “Today's and tomorrow's economy requires engaged students, boys and girls, are prepared for STEM careers...We want to encourage as many children as possible to explore STEM fields in the hope that many develop a passion for these fields," she said.

Resources: Alyson Klein, “After Proposing $9 Billion Cut, Trump Making Salary Donation to Ed. Dept.,” Education Week: Politics K-12, July 26, 2017. Author: KSC

Reports

NAACP Offers Recommendations to Improve Charter Schools

The National Association for the Advancement of Colored People (NAACP) released a report this week that sums up a months-long mission of gathering input from stakeholders across the country on the positive and negative aspects of charter schools. The NAACP formed an education task force last year following its proposed moratorium on new charter schools to conduct a series of hearings to gather input on this issue.

The organization makes a few key recommendations for improving charter schools:  Ban for-profit companies from running charter schools;

 Only allow school districts the authority to grant and revoke charters;  Create systems to monitor student suspensions and expulsions in charter schools; and  Require all charter school teachers to be certified.

In addition, the report calls for changes to traditional public schools, including overhauling school finance systems and increasing investment in low-performing schools.

While the report this week is less critical that the organization’s call for a moratorium on new charter schools last year, it identifies a number of areas in which charter schools need to be improved in order to help improve the education of African American students.

“While high-quality, accountable, and accessible charters can contribute to educational opportunity, by themselves, even the best charters are not a substitute for more stable, adequate and equitable invest- ments in public education,” the report states.

However, some advocates and education leaders, particularly in urban areas, disagree with the NAACP that charter schools are not a viable route to providing African American students with more equal educational opportunities.

Resources: Arianna Prothero, “Are Charter Schools Bad for Black Children? The NAACP Asked, Here’s What It Found,” Education Week: Charters & Choice, July 26, 2017. Emma Brown, “NAACP: School choice not the answer to improving education for black students,” Wash- ington Post, July 26, 2017. Author: KSC

To 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 man- agement, the Every Student Succeeds Act, special education, and more. To view all upcoming webinar topics and to register, visit www.bruman.com/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.

Contributors: Steven Spillan and Kelly Christiansen

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