Education Policy Update

May 28, 2021

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In This Issue: Biden administration releases FY22 budget proposal, Senate follows House with return of earmarks, Department of Education higher education regulatory agenda, Title IX rule hearing, state legislatures update and McGuireWoods welcomes Farnaz Thompson.

Biden Administration Releases FY22 Budget Proposal

On Friday, May 28, 2021, President Biden released his FY2022 budget. The President’s budget includes two plans the President has already put forward—the American Jobs Plan and the American Families Plan—and outlines a package of discretionary proposals to help restore core functions of government and reinvest in the foundations of the nation’s strength. 

The American Jobs Plan

The budget begins with the American Jobs Plan—an investment in America that would create millions of jobs, rebuild the nation’s infrastructure, and position the United States to out-compete China. The American Jobs Plan would invest in such projects as rebuilding roads, bridges, ports, airports, and transit systems. It would also invest in delivering clean water systems, the electric grid and affordable, highspeed internet. The plan would build, preserve, and retrofit more than two million homes and commercial buildings as well as modernize schools and childcare facilities. The plan would call on upgrade to veteran’s hospitals and federal buildings. It would raise wages and benefits for essential home care workers. In addition, resources would be used for research and development (R&D), manufacturing, and training.

The American Families Plan

Along with the American Jobs Plan, the budget also includes the American Families Plan—an investment to help families cover the basic expenses, lower health insurance premiums, and continue the reductions in child poverty in the American Rescue Plan Act of 2021. The American Families Plan would include such things as adding at least four years of free education and providing direct support to families to ensure that low- and middle-income families spend no more than seven percent of their income on childcare.

Reinvesting in the Foundations of the Nation’s Strength

The budget also looks to reinvest in core functions of government and the foundations of the nation’s strength. The budget includes targeted discretionary investments across a range of key areas—from improving America’s public health infrastructure and improving education, to tackling the climate crisis and fostering economic growth and security, to restoring America’s global standing and confronting 21st Century security challenges.

Overall, the budget would restore non-defense discretionary funding to 3.3 percent of Gross Domestic Product, roughly equal to the historical average over the last 30 years, while providing funding for national defense as well as for other instruments of national power—including diplomacy, development, and economic statecraft—that enhance the effectiveness of national defense spending and promote national security.

Below are the key foundational investments in education:  

TRIO and GEAR UP: $1.097 billion for Federal TRIO programs, an increase of $7 million above the 2020 enacted level. Additionally, $368 million for GEAR UP, an increase of $3 million above the 2020 enacted level.

Makes Historic Investments in High-Poverty Schools. The budget proposes $36.5 billion investment in Title I grants, a $20 billion increase from the 2021 enacted level.

Expands Access to Affordable Early Child Care and Learning. The budget includes $7.4 billion for the Child Care and Development Block Grant, an increase of $1.5 billion from the 2021 enacted level, to expand access to quality, affordable childcare for families, as well as an $11.9 billion investment in Head Start, a $1.2 billion increase.

Boosts Support for Children with Disabilities. The budget includes $16 billion, a $2.7 billion increase from the 2021 enacted level, for Individuals with Disabilities Education Act (IDEA) grants. The budget also provides $732 million for early intervention services for infants and toddlers with disabilities or delays. The $250 million increase for early intervention services would be paired with reforms to expand access to these services for underserved children, including children of color and children from low-income families.

Prioritizes the Physical and Mental Well-Being of Students. The budget provides $1 billion in addition to the resources in the American Rescue Plan, to increase the number of counselors, nurses, and mental health professionals in schools. In addition, the budget provides $443 million for full-service community schools.

Increases Pell Grants and Expands Institutional and Student Supports. The budget provides discretionary funding to increase the maximum Pell Grant by $400. This increase, together with the $1,475 Pell Grant increase in the American Families Plan, represents a significant first step to deliver on the President’s goal to double the grant. The budget also increases discretionary funding, and provides funding first proposed under the American Families Plan, to expand institutional and student supports at community colleges, HBCUs, TCUs, and MSIs. The administration also looks forward to working with the Congress on changes to the Higher Education Act of 1965 that ease the burden of student debt, including through improvements to the Income Driven Repayment and Public Service Loan Forgiveness programs. 

Other Education Related Items

Increases Rural Outreach and Connectivity. The budget provides $32 million for a renewed and expanded initiative, StrikeForce, to help people in high poverty rural communities tap into federal resources. The budget also provides an increase of $65 million from the 2021 enacted level for the Rural e-Connectivity Program “Reconnect” for rural broadband. The budget also includes $318 million for regional commissions, which provide economic development assistance in distressed, rural communities through infrastructure investments, workforce development, and other activities.

Senate Follows House With Return of Earmarks

Earmarks are continuing to make a return to Congress after a moratorium lasting a decade. Following the House’s announcement that the committee will accept Member requests for Community Project Funding in appropriations bills for the upcoming fiscal year (FY2022), the Senate followed suit. 

On April 26, 2021, the chair of the Senate Committee on Appropriations announced an intention to restore the use of congressionally directed spending items in appropriations bills for the upcoming fiscal year (FY2022). Such congressionally directed spending items will be subject to the Senate rules and restrictions governing earmarks. 

Read more on the Senate earmark disclosure rule, requirements for Senators submitting earmark requests and requirements for committees. 

Department of Education Higher Education Regulatory Agenda

The Education Department announced on May 24 that it would hold hearings in June to solicit public feedback on its rulemaking plans and detailed more than a dozen regulatory topics for consideration. 

The issues range from the implementation of Pell Grants for incarcerated students to the more politically complicated task of holding colleges accountable for their outcomes.

Education Secretary Miguel Cardona said in a statement that the rulemaking was aimed at “taking a fresh look at a range of regulations to make sure they are not creating unnecessary barriers, but instead can ensure that institutions and programs serve our students well.”

The announcement comes as the Biden administration faces calls from progressives to broadly cancel up to $50,000 of federal student loan debt. The Education Department described some of its forthcoming regulatory changes as ways to bolster “targeted loan cancellation” programs.

The announcement begins what will be a lengthy and expansive rulemaking effort that will likely take several years to complete. Education Department officials did not indicate how they planned to prioritize the sweeping list of regulatory issues. The department said that it plans to convene rulemaking committees to begin negotiating over the proposed regulations as soon as this summer.

The virtual public hearings will be held June 21, June 23, and June 24.

Following is the full list of rulemaking topics, as described by the Education Department:

  • Ability to benefit
  • Borrower defense to repayment
  • Certification procedures for participation in federal financial aid programs
  • Change of ownership and change in control of institutions of higher education
  • Closed school discharges
  • Discharges for borrowers with a total and permanent disability
  • Discharges for false certification of student eligibility
  • Financial responsibility for participating institutions of higher education, such as events that indicate heightened financial risk
  • Gainful employment
  • Income-contingent loan repayment plans
  • Mandatory pre-dispute arbitration and prohibition of class action lawsuits provisions in institutions’ enrollment agreements
  • Pell Grant eligibility for prison education programs
  • Public service loan forgiveness
  • Standards of administrative capability

Public Hearings: Title IX Rule and Discrimination Based on Sexual Orientation, Gender Identity

On May 17, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that public hearings on the Title IX final rule defining sexual harassment as a form of sex discrimination will be held virtually June 7-11, 2021.

Students, educators and others with interest and expertise in Title IX will be able to participate by offering oral comments and written submissions. Registration to provide comments is now open; expect time slots to fill up quickly.

Although individuals may submit comments about any aspect of Title IX, OCR has a particular interest in receiving comments on the Title IX final rule regarding sexual harassment and on discrimination based on sexual orientation and gender identity in educational environments.

The public hearings are in response to Executive Order 14021 on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, directing the U.S. Secretary of Education to review and determine whether to suspend, revise or rescind the Title IX final rule, defining sexual harassment as a form of sex discrimination. President Biden issued the order March 8, 2021. OCR issued a letter on April 6, 2021, announcing that it would hold a public hearing related to Title IX.

Read more for registration information. 

State Legislatures Update

At the height of the pandemic, at least 25 states had postponed or suspended their legislatures, but this year saw a return of every state legislature. This year’s sessions were filled with postponements, limited access or temporary closures, and remote participation. As of May 27, twenty-two (22) states have met and adjourned their sessions for 2021. The remaining states continue to meet with Utah currently meeting for a special session. With states conducting business, McGuireWoods Consulting has reviewed and tracked thousands of bills for a number of clients, and is actively monitoring over 300 bills.

Former U.S. Department of Education Deputy GC and UVA In-House Counsel Farnaz Thompson Joins McGuireWoods

Farnaz F. Thompson, who served as deputy general counsel in the U.S. Department of Education and as in-house counsel at the University of Virginia, has joined McGuireWoods’ Labor & Employment Department as a partner in Washington, D.C.

Thompson will be a key contributor to the firm’s education team, which represents clients in litigation and provides legal and policy guidance to clients including colleges and universities, K-12 schools, charter schools, school boards and academic medical centers.

Thompson served in the U.S. Department of Education from 2018 to 2021, most recently as deputy general counsel for postsecondary education. She co-led the department’s work to finalize regulations prohibiting sexual harassment. She also served as lead attorney for negotiated rulemakings, including for regulations governing accreditation and state authorization, and co-authored regulations concerning borrower defense to repayment and financial responsibility standards.

“Our clients will benefit greatly from Farnaz’s in-depth understanding of compliance and regulatory challenges facing higher education institutions,” said Laura Worley Fornash, senior vice president and co-lead of the national education team at McGuireWoods Consulting.

Thompson previously was associate university counsel at the University of Virginia, where she represented the institution in litigation before federal agencies and advised officials on federal education and employment laws. From 2011 to 2015, she was an assistant AG in the civil litigation section of the Virginia attorney general’s office. In that role, she was first-chair trial lawyer in more than 30 civil actions in federal and state courts, including appellate courts.

“Farnaz is a great addition to the firm and will make for a wonderful partner to our consulting group. She has a wealth of experience advising clients on education laws and regulations—both at the federal and state levels—especially given her most recent role at the U.S. Department of Education,” said Scott Frein, senior vice president and co-lead of the national education team at McGuireWoods Consulting.

Read the full press release.