Federal Flash: Happy Pride—Title IX Protects LGBTQ+ Students

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June 30, 2021 11:01 am

The U.S. Department of Education issued new Title IX guidance protecting transgender students, and the Supreme Court, for now, declined to take up the issue. Plus, the Federal Communications Commission (FCC) opened the application for schools and libraries to apply for $7.2 billion in Emergency Connectivity Funding from the American Rescue Plan. Finally, the Supreme Court ruled that the First Amendment protects students’ off-campus speech, but the limits of those protections remain unclear.

Protecting Transgender Students

The Department of Education’s Office for Civil Rights (OCR) issued a notice that Title IX’s prohibition of discrimination on the basis of sex also includes discrimination on the basis of sexual orientation or gender identity, including transgender students. This builds on the Supreme Court’s ruling in Bostock v. Clayton County, which found that discrimination based on sexual orientation or gender identity in the workplace is inherently a form of discrimination based on sex.

The notice reverses a 2017 decision by former Secretary DeVos to eliminate protections for transgender students implemented during the Obama administration. At All4Ed, we’re thrilled the Biden administration took this step to ensure schools are safe, welcoming, and inclusive of all students, regardless of their sexual orientation or gender identity.

The Department also marked the 49th anniversary of Title IX with a Dear Colleague letter clarifying OCR’s decision to fully enforce Title IX on behalf of transgender students, including links to resources to help states, districts, and schools serve LGBTQ+ students effectively. Additionally, the Departments of Education and Justice released a fact sheet for families and students facing anti-LGBTQ+ harassment in schools with examples of incidents they can investigate.

Meanwhile, in a 7–2 decision, the Supreme Court declined to hear the case of Gavin Grimm, a transgender student who challenged his Virginia school district’s policy prohibiting him from using bathrooms that matched his gender identity. By passing on the case, the lower court’s ruling—which found that the district violated the equal protection clause and Title IX—stands.

“Trans youth deserve to use the bathroom in peace without being humiliated and stigmatized by their own school boards and elected officials.”

—Gavin Grimm

Given the number of states passing anti-transgender bills targeting students and youth, however, the issue will likely reappear in the future, at which point the Court may wish to further define whether, and how, Title IX’s ban on sex discrimination in schools applies to gender identity and sexual orientation. We’ll keep you posted.

FAFSA Simplification Delayed

In other Department news, the agency will miss a Congressional deadline to revamp the application for federal financial aid. As part of the bipartisan COVID-19 relief package passed in December, the Department had to simplify the Free Application for Federal Student Aid, or FAFSA, by the 2023–24 school year. Despite its support for improving student access to financial aid, the Biden administration says it cannot complete the FAFSA overhaul until 2024–25 due to technical limitations in the 45-year-old system. Congress is working toward a bipartisan legislative fix to accommodate the adjusted schedule. Once enacted, the FAFSA should be trimmed from over 100 questions to 36.

Emergency Connectivity Fund Application Available

Shifting gears, the Federal Communications Commission’s (FCC) application for Emergency Connectivity Funding is now available, alongside FAQs, webinars, and other resources to help schools and libraries apply. As we’ve discussed on Federal Flash before, the American Rescue Plan included $7.2 billion for schools and libraries to buy laptops, hotspots, and broadband for students who’ve been learning remotely during the pandemic. This will help close the Homework Gap for the millions of students—disproportionately low-income students and students of color—who lack sufficient internet and technology at home.

The application is open for 45 days. Eligible schools and libraries may apply for funds to purchase eligible equipment and services between July 1, 2021 and June 30, 2022. Applicants must also certify that all funds will support students and staff who would otherwise lack sufficient internet and technology.

Students’ Off-Campus Speech

Turning back to the Supreme Court, in an 8–1 decision, Mahanoy Area School District v. B.L. found that schools may only discipline students for off-campus speech if it causes substantial disruption to the school. The case involved a former Pennsylvania high schooler who was suspended from cheerleading for a year after posting a profanity-laden message on social media when she failed to make the varsity squad.

Although the Court ruled that the First Amendment protected her off-campus speech in this case, they didn’t go so far as to rule that districts lack legal authority to regulate all off-campus or online speech. In the majority opinion, Justice Stephen Breyer specifically listed bullying, harassment, and threats as off-campus incidents where schools have a significant interest. However, the precise contours of when, and under what circumstances, schools may regulate students’ online or off-campus speech remain murky and will need to be determined through future cases.

Cardona Testifies on Capitol Hill

Finally, a few updates from Capitol Hill, where Secretary Cardona testified twice in the last two weeks. First, he appeared before the Senate Appropriations subcommittee to discuss President Biden’s 41% proposed increase for education in the FY22 budget. The hearing focused largely on higher education, including free community college, for-profit colleges, and financial aid. Although the Republican members and Democratic Senator Joe Manchin (D-WV) spoke out against the President’s plan for free community college, they were more open to ideas for expanding Pell grants. Republicans also expressed concerns with the overall funding level proposed.

Next, Secretary Cardona testified before the House Education and Labor Committee on the agency’s top priorities. Unlike the cordial Senate hearing on the budget, this hearing devolved quickly into debates over critical race theory—a 40-year-old theory about American racism studied by legal scholars. Many Republican members expressed considerable concern that the Department of Education is pushing schools to teach critical race theory. Secretary Cardona stressed, as he has in previous hearings, that the Department does not make curriculum decisions for states, districts, or schools.

This blog post represents a slightly edited transcript of the June 30 episode of Federal Flash, the Alliance for Excellent Education’s (All4Ed’s) video series on important developments in education policy in Washington, DC. The podcast and video versions are embedded below. For an alert when the next episode of Federal Flash is available, email alliance@all4ed.org.

Phillip Lovell is associate executive director and Anne Hyslop is director of policy development at All4Ed.

Federal Communications Commission, Federal Education Budget, Federal Flash, Financial Aid

Federal Flash: The Bipartisan Senate Bill You’ve Never Heard of Just Expanded Pathways to College

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June 15, 2021 12:20 pm

The U.S. Senate passed a bipartisan global competitiveness bill that includes new grants to expand science, technology, engineering, and math (STEM) pathways allowing students to earn college credit or an industry credential while in high school. Plus, the U.S. Department of Education published guidance on Maintenance of Equity in spending American Rescue Plan funds, launched an Education Equity Summit series, and issued a request for information on school discipline policies that could lead to new guidance and civil rights enforcement.

The U.S. Innovation and Competition Act

Last week, the U.S. Senate passed the bipartisan U.S. Innovation and Competition Act, previously known as the Endless Frontier Act. The roughly $250 billion package—designed to increase American global competitiveness—makes major investments in science and technology, but flew under the radar amid ongoing negotiations over infrastructure. A key goal of the bill is to increase the number of American students attaining college credentials in STEM. While the bill did not expand Pell Grant eligibility to short-term programs, it did include funding for state grants to expand college and career pathways by providing high school students opportunities to gain college credit or an industry credential in STEM courses.

This STEM pathways program is similar to the Fast Track to and Through College Act that we discussed on a previous Federal Flash. Each STEM pathway would offer at least 12 credits toward an associate degree or a recognized industry credential. And critically, all pathway courses must count not only toward high school graduation, but also transfer to the state’s public colleges and universities. 

All4Ed applauds the legislation’s investment in early college opportunities. As our President and CEO Deb Delisle said:

“This bill will help keep America competitive with other countries for years to come by encouraging more students, particularly low-income and first-generation college students, to complete a higher education degree.”

But first, the House of Representatives must vote on the U.S. Innovation and Competition Act. If it passes without significant changes, the bill would then head to the White House for President Biden’s signature.

Maintenance of Equity Guidance

Switching gears, the U.S. Department of Education released new guidance on the Maintenance of Equity requirement for Elementary and Secondary School Emergency Relief (ESSER) funds included as a part of the American Rescue Plan (ARP). As a condition of receiving funds, states and districts may not disproportionately cut funding for high-poverty, high-need schools. Given that these districts and schools often bore the brunt of spending cuts during the Great Recession, we joined with a number of civil rights and other education advocates to strongly support the Maintenance of Equity requirement.

Specifically, in FY2022 and FY2023, states cannot reduce state funding per pupil to “high-need districts” at a greater rate than the overall reduction across the state. Further, they may not reduce state funding per pupil below the FY2019 level for any of their “highest-poverty districts.”

The guidance provides much-needed clarity to states in meeting the new requirement. For example, it specifies capital outlays and debt services are excluded as funding sources. It also provides examples of how states identify “high-need districts.” First, districts are rank ordered according to their percentage of economically disadvantaged students using the Census Bureau’s Small Area Income and Poverty Estimates (SAIPE) percentage. Because special districts lacking geographic boundaries, like charter school districts, may not have Census data, the guidance clarifies states can use the same data they use for Title I funding in those cases. Next, states calculate the number of students equal to 50% of their total enrollment. Finally, states identify—beginning with their highest-poverty districts—those districts that account for half of the state’s total enrollment. States use the same process to identify their “highest-poverty districts,” except that they account for just 20% of the state’s enrollment.

Districts are also subject to Maintenance of Equity. They cannot disproportionately reduce combined state and local per-pupil funding in “high-poverty schools,” nor disproportionately cut the number of full-time equivalent (FTE) staff per pupil in those schools. The guidance supports districts in identifying their schools in the highest poverty quartile that qualify as “high-poverty schools” and determining whether maintenance of equity was met. For example, it clarifies districts can use the same poverty data they already use to determine Title I school eligibility. Districts can also rank order schools districtwide, or by grade span. This can support the identification of high-poverty middle and high schools. 

When it released the guidance, the Department also announced a new Education Equity Summit Series to address inequities created and exacerbated by the pandemic. The first session will be held virtually on June 22, 2021 and feature Secretary Cardona, Deputy Secretary Cindy Marten, and a number of education leaders from across the country. It will focus on school reopening and how schools can better listen to the perspectives and meet the needs of underserved students. If you’re interested in participating in the event, you can register here.

OCR Request for Information on School Discipline

In other Department news, the Office for Civil Rights (OCR) released a Request for Information on data, research, and suggestions regarding discipline in K-12 schools. As a reminder, in 2018, then-Secretary DeVos rescinded school discipline guidance developed during the Obama administration. Since then, Democratic lawmakers and civil rights advocates have continued to call for school discipline reform. For example, Representative Donald McEachin (D-VA) and Senator Chris Murphy (D-CT) recently reintroduced the Protecting Students in Schools Act which would prohibit corporal punishment in schools receiving federal funds—a practice still permitted in 19 states. And during the presidential transition, restoring, and improving, the Obama-era discipline guidance was a top priority for many civil rights advocates.

The Request for Information is likely the first step in doing so. OCR is seeking public comments through July 23, 2021 to inform its policy guidance, technical assistance, and other resources to improve school climate and safety and to enforce civil rights laws. Comments may be submitted online through the federal eRulemaking portal.

This blog post represents a slightly edited transcript of the June 15 episode of Federal Flash, the Alliance for Excellent Education’s (All4Ed’s) video series on important developments in education policy in Washington, DC. The podcast and video versions are embedded below. For an alert when the next episode of Federal Flash is available, email alliance@all4ed.org.

Anne Hyslop is director of policy development, and Ziyu Zhou is a policy analyst at All4Ed.

College and Career Readiness, coronavirus, Discipline, Federal Flash, STEM

Federal Flash: Biden’s Budget Invests Billions in Education Equity

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June 02, 2021 01:26 pm

President Biden released his full FY2022 budget request, with a 41 percent increase for the U.S. Department of Education and proposals to expand public education by four years and create a new $20 billion Title I “equity fund” to tackle inequities in state and local school finance, teacher pay, advanced coursework, and preschool. Plus, the bipartisan Fast Track to and Through College Act was reintroduced, and the U.S. Department of Education issued new guidance on how states and districts may use federal COVID-19 relief funds.

President Biden’s FY2022 Budget

Last week the Biden administration released its full FY2022 budget request, which fleshes out the “skinny budget” from mid-April that we discussed on a previous Federal Flash. Overall, President Biden would increase the U.S. Department of Education’s budget by 41 percent to nearly $103 billion.  

The budget request incorporates key elements from the American Families Plan and the American Jobs Plan, including expanding public education by four years through $200 billion for universal pre-K and $123 billion for free community college.

While those provisions were previewed in other proposals, the administration unveiled new funding as well. This includes a $2.6 billion increase for special education grants under IDEA, a $1 billion program to help double the number of school counselors, nurses, and mental health professionals, and $100 million for middle and high school career technical education innovation projects to provide high-quality, work-based learning and other pathways to credentials. Most notably, the request includes $20 billion for new Title I “equity grants.” Rather than allocate these funds through the existing Title I formulas (which would remain flat-funded at around $16.5 billion), the new grants would flow to districts through a different, more targeted formula. However, the full details of the formula aren’t part of the budget request.

In addition to a new formula for allocating the $20 billion, the funds would be used for different—and more specific—purposes than current Title I dollars. Districts would use a portion to make teacher salaries more competitive with other professions and a portion to address disparities in access to advanced coursework. They could also use funds to expand access to preschool.

There would also be new requirements for states to access the funds, including reporting, goal setting, and progress monitoring related to state and local funding equity, competitive teacher pay, access to— and success in—rigorous coursework, and pre-K. If enacted, the equity grants would dramatically increase the federal government’s investment in under-resourced schools and could jumpstart important changes at the state and local level to make school finance more equitable.

At All4Ed, “we applaud the move to invest more in Title I schools through an additional $20 billion program that we hope will not only address state and local funding inequities for these schools but also will improve equity in access to advanced coursework. We look forward to working with Congress to see these proposals become reality.”

Like most presidential budget requests, however, the Biden budget faces considerable opposition and uncertainty. While it’s unlikely Congress will adopt President Biden’s budget proposal whole cloth, we urge Congress to build on its investments in education and strong commitment to equity.

The Fast Track To and Through College Act

Moving over to Capitol Hill, Senators Maggie Hassan (D-NH), and Todd Young (R-IN) reintroduced the Fast Track To and Through College Act to help college-ready high school seniors “fast track” into college-level coursework fulltime.

This bipartisan legislation builds on findings from a report by All4Ed and Education Reform Now. It authorizes competitive grants to states to redesign senior year of high school by providing two faster, more affordable pathways to college. The early college pathway provides a free, full-time course load of college-level work through dual enrollment or Advanced Placement during 12th grade. The early high school graduation pathway supports students who graduate high school a year early by using a portion of the per-pupil funding their school would have received to provide students a scholarship for any in-state public college or university. This legislation also makes low-income students in “fast track” pathways eligible for Pell grants to pay for dual enrollment course work. We’re excited to see this important legislation reintroduced and hope that Congress will pass it into law.

New Guidance on COVID-19 Relief Funds

As the deadline nears for states to submit plans on how they will use the last portion of their COVID-19 relief funds, the U.S. Department of Education issued new guidance on the use of federal funding allocated through the Elementary and Secondary Emergency Relief (ESSER) fund—which has been funded in three separate relief bills: the CARES Act, the Coronavirus Response and Relief Supplemental Appropriations Act and, most recently, the American Rescue Plan Act.  

The document answers Frequently Asked Questions (FAQs) on how ESSER funds may be used to support states and districts to reopen schools and address lost learning time. By and large, ESSER funds are more flexible than other federal dollars. Resources may be used for summer learning, helping high school students transition to college, mental health services, and supports for students with disabilities, English learners, and those experiencing homelessness. ESSER funds may also be used for related activities, like “premium pay” for teachers, COVID-19 vaccinations , and improving air quality in schools. The guidance further clarifies states cannot place conditions on how districts spend funds other than stipulating the amount that may be used on administration. Finally, states and districts may not use ESSER to bolster their “rainy day” funds that may have been drained due to the pandemic.

The new guidance is likely not the final word from the Department on ESSER funds, as we expect further guidance on maintenance of equity in the American Rescue Plan and reporting requirements. We’ll keep you posted.

Familiar Faces Return to the Department of Education

Finally, in other Department news, President Biden has nominated Catherine Lhamon to head the Office for Civil Rights. Lhamon previously held the same position during the Obama Administration, and we are excited for her return to that role. If confirmed, Lhamon would lead the Department’s work to protect K-12 and college students from discrimination, including addressing issues related to race, LGBTQ rights, and sexual assault and harassment. Another Obama administration alum, Lisa Brown, has been nominated for General Counsel. Brown is currently Vice President and General Counsel at Georgetown University. These appointments shrink the number of unfilled leadership roles at the agency, though the Assistant Secretary for Elementary and Secondary Education has not yet been announced.

This blog post represents a slightly edited transcript of the June 2 episode of Federal Flash, the Alliance for Excellent Education’s (All4Ed’s) video series on important developments in education policy in Washington, DC. The podcast and video versions are embedded below. For an alert when the next episode of Federal Flash is available, email alliance@all4ed.org.

Anne Hyslop is director of policy development and Ziyu Zhou is a policy analyst at All4Ed.

coronavirus, Federal Education Budget, Federal Flash, High School Reform