2 key issues for Biden: Testing and gender identity

By: | March 1, 2021
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Testing and gender identity both surfaced as key issues to for superintendents and their teams watch in the wake of Education Secretary Miguel Cardona’s confirmation hearings.

The flexibility and waivers offered in the testing guidance issued by the Biden administration earlier this year will not be the end of the post-pandemic assessment conversation, says Julia Martin, legislative director for the education-focused law firm, Brustein & Manasevit.

Among the biggest questions will be the reliability of data generated by any tests—particularly online tests—administered in the coming months, Martin says.

Students with Wi-Fi and ample parent support at home, who can take the tests during the school day, will likely meet or exceed expectations on these exams.


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“So many reasons kids might not be able to take assessments during the day and those are the kids we are really worried about,” she says.

There is also substantial resistance to using any COVID-era test data for school or teacher accountability.

“In the longer term are we going to look back and say this is good data or not good data,” Martin says. “This conversation is not going to be over any time soon regardless of what each individual state and districts decide to do about assessments.”

How gender-identity policies could shift, quickly

Gender-identity, high school athletics and protections against discrimination may shift as the issues filter through the Department of Education, Congress and courts

A recent Supreme Court labor decision, Bostock v. Clayton County, found that protections against discrimination based on sex also extend to gender identify. That could settle many issues impacting K-12, such as name and bathroom use.

But who can play on which athletic teams, particularly girls’ and women’s teams, may remain a challenging issue for school administrators.


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While the Biden administration may offer guidance on the issue, there is a bill in Congress that would define sex as solely biological for athletics purposes, meaning students could only join teams the correlate with the gender assigned at birth.

And there are various court cases that could also decide the issue, Martin says.

“Congress or the courts could make decisions that override any policies the administration sets,” Martin says. “Or they may set different policies in different contexts that shift fairly quickly and maybe multiple times.”