LDA Legislative News – January 2017

BetsyDevosDeVos Nomination Slows, Still on Track

The Committee confirmation vote on Secretary of Education nominee Betsy DeVos is now scheduled for January 31. While critics of her nomination continue to fight, a week’s delay beyond the original date for a vote should not necessarily be interpreted to mean her confirmation is in jeopardy. In fact the delay was most likely provided to allow Committee members to review extensive financial disclosures released since the public hearing on DeVos’s nomination earlier this month.

In response to a request for a second hearing for DeVos from Democratic members of the Senate Health, Education, Labor and Pensions (HELP) Committee, Committee Chairman Alexander (R-TN) has declined to provide an additional opportunity to question DeVos in public. He cited the private meetings individual committee members already have had with the nominee and lack of precedence for further hearings.

Education, civil rights, and disabilities advocates have been pressing hard to derail DeVos’s confirmation, noting her lack of experience in education generally and specifically her lack of knowledge about federal education law. For disability advocates, DeVos’s responses to questions at the open hearing on her nomination about enforcement of the Individuals with Disabilities Education Act (IDEA) were extremely troubling. In response to a question from Senator Tim Kaine (D-VA) about enforcement of the IDEA, she responded that decisions about compliance with the law should be left to the states. Since the hearing, she has indicated she may have been confused about which law was being discussed. Advocates are not satisfied with that explanation and continue to press for a candidate who has an understanding of, experience in, and commitment to public education for all students.

If the HELP Committee votes to move the nomination forward on January 31, most likely the full Senate will vote quickly to confirm Ms. DeVos. Should that occur, LDA and its partner organizations will work to ensure the rights and protections for students with disabilities are maintained and that funding continues to enforce the IDEA.

With Endrew F. Case, Supreme Court Will Decide How Much Benefit an IEP Must Provide

Under federal special education law, an IEP must provide “educational benefit.” But how much of an educational benefit does an IEP have to provide That’s the legal question in the Supreme Court case Endrew F. v. Douglas County School District, which was argued January 11.

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Congress has resurrected the Congressional Review Act (CRA), enacted in 1996 as part of the “Contract with America.” The CRA gives Congress a specific process to overturn regulations promulgated by the federal agencies charged with implementing the laws passed by Congress. With President Trump’s promise to curb federal regulations, Congress has already begun this process.

The CRA has actually only been used once successfully since its passage to overturn a regulation, and that occurred in 2000 during the Clinton Administration. The CRA requires action by both chambers of Congress to repeal a regulation, and that action is subject to a presidential veto. Under President Obama, Congress passed five CRA resolutions of disapproval, as these bills are known. However, the president vetoed each of those bills, and Congress did not override his vetoes.

LDA is particularly concerned about this mechanism for repeal because the U.S. Department of Education has just issued new accountability regulations for the Every Student Succeeds Act (ESSA) in November. According to the CRA, Congress has a specific time period to review recently released regulations, and a senator or representative may introduce a joint resolution of disapproval. The ESSA regulations fall within the specified time period and appear to be on the list for CRA consideration.

If Congress passes a CRA disapproval resolution and the president does not veto that bill, the agency – in the case of ESSA, the Department of Education – could not re-regulate on the same issues in a “substantially similar way.” The agency might be able to issue some guidance documents in lieu of formal regulations or give states and school districts the authority to decide how to handle these issues.

The other mechanism a new Administration can and often does employ is delaying implementation of new regulations that have not yet taken effect. Major regulations such as the ESSA accountability rules go into effect 60 days after their official publication or their submission to Congress, whichever comes first. Since the ESSA rules were just published at the end of November 2016, the Administration can act to delay implementation and enforcement, and that delay could be significant. In addition, these regulations are subject to amendment through the regular regulatory process. In other words, a number of avenues are available to change the rules just finalized in the previous Administration.

115th Congress Organizing for New Session

The 115th Congress began on January 1, 2017.   Generally when a new Congress is seated, especially after a presidential election and change in Administration, they do not get to work until after the inauguration.  This Congress changed that practice and began work immediately.  Part of that process is selection of committee chairmen and ranking members, and that activity is well under way.

LDA encourages its members to be active in developing relationships with their representatives and senators, especially when those individuals hold key positions in the Congress.  The organization closely follows the activities of several committees, including the House and Senate education committees and the budget and appropriations committees that deal with funding LDA’s priority programs.

In the 115th Congress all committee and subcommittee chairmen are Republicans, since that party controls both the House and the Senate.  Committee and subcommittee ranking members are the most senior members of the minority party, in this case the Democrats.  Following are the chairmen and ranking members of some key committees that LDA follows:

  • Senate Committee on Health, Education, Labor and Pensions (HELP)
    • Chairman: Senator Lamar Alexander (R-TN)
    • Ranking Member: Senator Patty Murray (D-WA)
  • House Committee on Education and the Workforce
    • Chairman: Representative Virginia Foxx (R-NC)
    • Ranking Member: Representative Bobby Scott (D-VA)
  • Senate Committee on Budget
    • Chairman: Senator Mike Enzi (R-WY)
    • Ranking Member: Senator Bernie Sanders (I-VT)
  • House Committee on Budget
    • Chairman: Representative Diane Black (R-TN; Interim Chairman)
    • Ranking Member: Representative John Yarmuth (D-KY)
  • Senate Committee on Appropriations
    • Chairman: Senator Thad Cochran (R-MS)
    • Ranking Member: Senator Patrick Leahy (D-VT)
  • House Committee on Appropriations
    • Chairman: Representative Rodney Freylinghuysen (R-NJ)
    • Ranking Member: Representative Nita Lowey (D-NY).

LDA will continue to update this list as additional committee and subcommittee chairmen, ranking members, and rank and file committee members are selected.

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