Title IX rules, school choice mark DeVos’ ED legacy

By: and | January 8, 2021

Education Secretary Betsy DeVos, who resigned as education secretary Thursday night, effective Friday, leaves behind a legacy of support for school choice and limited federal involvement in education.

During her tenure, DeVos oversaw revisions to Every Student Succeeds Act regulations and non-regulatory guidance and continued a push for school choice options for students and families.

She also proposed and implemented new Title IX rules, supported administrative proposals to cut or eliminate education funding, and oversaw the release of ESSER and ESSER II stimulus funds.

Here are some of the highlights of DeVos’ tenure as Education secretary:

COVID-19 response

As schools closed to in-person learning in the wake of COVID, the U.S. Department of Education offered several flexibilities to states in meeting some ESSA requirements. The department waived requirements for annual statewide assessments as well as some fiscal requirements—including Title IV, Part A spending restrictions— to free up funding for the rollout of remote learning systems.

With passage of the CARES Act, $13 billion in ESSER funds were provided to states through the Title I, Part A formula for FY 2019.

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The department issued an interim final rule that would have required SEAs and LEAs to calculate the equitable services set-aside using all non-public students in the district rather than those eligible for equitable services under Title I, Part A.

The department rescinded the interim rule after the decision in National Association for the Advancement of Colored People v. DeVos, 120 LRP 26741 (D.D.C. 09/04/20), in which Judge Dabney Friedrich of the U.S. District Court, District of Columbia ruled ED’s interim rule exceeded its authority.

The department filed updated guidance following the ruling, which said SEAs and LEAs should follow ESSA Section 1117 to calculate Title I, Part A to identify the number of private school children to serve.

In one of her last actions before her resignation, DeVos announced on Jan. 5 that a new tranche of ESSER II funding authorized by the Coronavirus Response and Relief Supplemental Appropriations Act, Pub. L. No. 116-260, was available for states.

DeVos urged states to use ESSER and ESSER II funds to return students to in-school settings.

Education funding

DeVos supported Trump administration budget requests that would have cut funding from several ED programs, including funding for Title II, Part A, and Title IV, Part A.

In the administration’s FY 2021 budget request, DeVos supported eliminating spending on many ESSA programs to combine funding into one block grant. She called the budget proposal “bold” and a “break from the status quo.”

“Instead of Washington politicians and bureaucrats forcing local schools to spend limited resources on D.C.’s priorities, this budget proposes putting state and local leaders, teachers, parents, and students themselves in control of education,” she said in support of the proposal.

Congressional appropriations bills during her tenure did not include ED’s recommended cuts and provided increases to Title I and the IDEA.

Equitable services

Under DeVos, ED addressed Title I, Part A equitable services topics in “Providing Equitable Services to Eligible School Children, Teachers, and Families, 119 LRP 38894 (EDU 10/07/19),” that highlighted LEA responsibilities that are required under ESSA Section 1117.

The equitable services guidance also solidified the department’s position that it must interpret the ESSA in light of the decision in Trinity Lutheran Church of Columbia Inc. v. Comer, 117 LRP 25180, 137 S. Ct. 2012 (2017), and allowed LEAs to contract with religious organizations to provide equitable services.

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ED interpreted the Trinity Lutheran decision to mean that otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

School choice

DeVos, a strong advocate for school choice for parents and students, supported funding initiatives in each of the Trump administration’s budget requests that would allow federal funding to support charters, vouchers, or private schools.

Under DeVos, ED also undertook several regulatory actions to align federal rules and guidance to reflect its interpretation the Trinity Lutheran decision. ED interpreted the decision to mean that otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character under the First Amendment.

Indeed, in one of the last regulatory actions of DeVos’ tenure, the Education Department joined with several other agencies to issue a joint rule that expanded faith-based program eligibility for federal grants.

“We’re continuing to ensure faith-based organizations, including faith-based institutions, do not give up their First Amendment rights as a condition of participating in taxpayer programs,” she said.

Special education

The Education Department attempted to put on hold Obama-era rules on significant disproportionality in the identification of students for special education services. ED said the hold on the 2016 Equity in IDEA regulation was necessary for the department to determine if it would lead to race-based quotas in identification.

However, ED dropped its legal effort, allowing implementation of the regulation to proceed after a U.S. District Court ruled that ED’s postponement of the rule was an “illegal delay of a legal regulation.”

Title IX rules

This summer”, ED issued new Title IX regulations with broad implications for districts.

Specifically, the new regulations define the term “sexual harassment” as unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the district’s education program or activity. 34 CFR 106.30(a).

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According to the new rule, a district is obligated to respond to sexual harassment when it has “actual knowledge” of the harassment. K-12 schools have “actual knowledge” of sexual harassment when any school employee receives notice of sexual harassment. 34 CFR 106.30(a).

The regulations also require districts to train their Title IX coordinators, investigators, decision-makers, and other officials on the definition of sexual harassment and how to conduct an impartial investigation and grievance process. 34 CFR 106.45(b)(1).

While President-elect Biden may be quick to rescind or modify Trump-era education policies when he takes office, the 2020 Title IX regulations will likely stay in place for some time.

To modify the new Title rule, ED would need to go through the regulatory rulemaking process, which involves issuing new regulations in advance for public comment. This process could take years.

ESSA implementation

DeVos oversaw the review and approval of ESSA consolidated state plans, as well as issuing regulations and nonregulatory guidance for states to implement the law.

In one of the administration’s first actions, it supported the use of the Congressional Review Act to rescind Obama administration accountability and consolidated state plan regulations in early 2017.

ED also rescinded Obama administration guidance on discipline that called for inequities in discipline to be identified and addressed. The Trump administration implemented its own guidance, “Questions & Answers on Racial Discrimination and School Discipline, 120 LRP 598 (EDU 12/21/18),” which said school discipline should not be based on race or a quota system.

Charles Hendrix covers education funding and other Title I issues for LRP Publications. Amy K. Onaga, Esq., covers special education issues for LRP Publications.