While there is certainly enough going on in the Legislative Session to keep us focused on Tallahassee, some recent events on the federal government level present issues that are competing for attention. Below are updates on several federal issues.
Every Student Succeeds Act (ESSA): Earlier this month, Congress repealed the ESSA Accountability and State Plan regulations that had been finalized by the Obama Administration last November. The Accountability regulations were set to take effect on January 30th, but the Department of Education postponed the effective date. As a result, the regulations have not yet taken effect. The regulatory package included over twenty regulations that addressed all matters relating to accountability and set requirements for State Plans for compliance with ESSA, which States have been working to develop and finalize over the last year. The Department of Education has now released a Revised State Template for the Consolidated State Plan. Noticeably absent from the Revised Template are references to meaningful stakeholder engagement in the development of state plans. This undermines several of the key elements of ESSA that sought to restore local control and authority and to have meaningful input in devising the state plan to implement ESSA. For more information, please see the NSBA/AASA Joint Statement on ESSA Implementation Process.
White House Budget Blueprint: This week, the Administration released a framework for its FY2018 budget request to Congress that would impose significant cuts to federal education investments, along with a precedent for a dual education system to support and expand school choice. Overall, the budget request notes a decrease of more than $9 billion in federal education investments.
- School Choice: To promote school choice, the President is requesting $250 million for a new program along with a $1 billion increase in Title I funding that would be “dedicated to encouraging districts to adopt a system of student-based budgeting and open enrollment.” Several education advocates have described this proposal as one for Title I portability, which was debated during Congress’ development of ESSA in 2015.
- Special Education: The investment proposed for special education grants to states, authorized by the Individuals with Disabilities Education Act (IDEA), is to “maintain” funding at roughly $13 billion ($12.72 billion), which equates to approximately 16 percent of what is historically considered the additional cost of educating students with disabilities. Under this budget request, the average federal share of funding per student would be about $1,777. Our school districts educate more than 6 million students with disabilities.
- Title II Programs: The proposal would also eliminate roughly $2.4 billion in investments for Title II of the Every Student Succeeds Act (ESSA) on “Preparing, Training, and Recruiting High-Quality Teachers, Principals, or Other School Leaders.” Title II investments cover professional development, in-service training, technology integration into curricula, training on data usage to improve student achievement and student data privacy, implementation of performance-based compensation systems, parental/community engagement, development of STEM master teacher corps, civics, and more.
- Academic Enrichment: The FY18 budget proposal would cut funding for 21st Century Community Learning Centers ($1 billion) that helps districts provide tutorial services, youth development activities, counseling programs, drug and violence prevention, and other extended school day learning opportunities for academic enrichment.
In addition to these specific budget items, it is expected that voucher tax credits will be included in a more detailed budget request to Congress that the Administration is expected to publish in May. In response to President Trump’s request for school choice funding and in anticipation of a push to create and expand voucher programs, Senator Patty Murray — Minority Leader of the Senate Health, Education, Labor, and Pensions (HELP) Committee – and HELP Committee Minority Staff have prepared a memorandum on the repercussions of school privatization efforts. We have posted this, along with the White House Summary of President Trump’s Budget Blueprint,on our Federal Government Relations page. In addition, you may wish to read NSBA’s Statement on President Trump’s budget.
U.S. Supreme Court: The U.S. Supreme Court issued an important opinion on Wednesday in Endrew F. v. Douglas County School District (Case No. 15-827) addressing the appropriate standard for determining whether a free appropriate public education (“FAPE”) has been offered/provided under the Individuals with Disabilities Education Act (“IDEA”). At issue in Endrew F. was whether a school must provide a student with some educational benefit or with a higher standard of meaningful educational benefit. The Tenth Circuit previously held in favor of the school district, finding that FAPE was provided because the student’s IEP conferred an educational benefit that was more than de minimis and was reasonably calculated to enable him to make some progress. The U.S. Supreme Court reversed the Tenth Circuit and, in light of this decision, the FAPE standard is now higher. School districts can no longer rely on the “some educational benefit” or “more than de minimis” arguments when contending FAPE was provided. For more information, please see the Special Alert on this decision on our Education Legal News page in our Resource Room (with thanks to our friends at Sniffen & Spellman, P.A.).
American Health Care Act (AHCA): Congress has developed this legislation to accomplish the repeal and replacement of the Affordable Care Act (also known as ACA or “Obamacare”). Although there are a number of concerns about elements in both the ACA and the AHCA, of particular concern today is that the AHCA would change the way states receive Medicaid funds by imposing a per capita allotment funding structure and places arbitrary caps on how much Medicaid funding a child is eligible to receive. This will significantly impact the ability of students with disabilities and students in poverty to receive critically necessary health services in schools. These services include speech-language pathology, occupational and physical therapy, mental and behavioral health services, vision and hearing screenings, diabetes and asthma management, wheelchairs and hearing aids. This would also impact the extent to which school districts can claim reimbursement for administrative duties relating to these services. A vote on passage of the ACHA had been scheduled in the House today, but it was delayed — though it may be put up for a vote on Friday. With that in mind, NSBA has asked that you contact your House Representative and urge them to VOTE NO on the American Health Care Act (links to the NSBA Advocacy website that provides a script and guides you through placing a call to your Representative). For more information, please see the NSBA Issue Brief on the American Health Care Act.
Returning to issues closer to home, please click on the link below for our report on the bills of interest that were considered today. Please note that there are no committee meetings of interest scheduled for tomorrow, March 24, 2017, but we will provide the schedule of meetings for Monday, March 27, 2017 and other information in tomorrow’s Session Spotlight.
- Express religious beliefs in written and oral assignments free from discrimination.
- Wear jewelry that displays a religious message or symbol to the same extent as secular types of jewelry that displays messages or symbols are permitted.
- Engage in and organize religious groups before, during, and after the school day in the same manner and to the same extent that secular student organizations and groups are permitted.
In addition, the bill requires a school district to:
- Allow a religious group the same access to the same school facilities for assembling as given to a secular group and allow a religious or secular group to advertise or announce its meetings.
- Permit school personnel to participate in religious activities on school grounds that are student-initiated and at reasonable times before or after the school day as long as the activities are voluntary and do not conflict with the duties and responsibilities of such school personnel.
The bill also provides that these provisions may be enforced pursuant to provisions relating to attorney’s fees and costs set forth in Chapter 761 F.S. — The Religious Freedom Restoration Act of 1998. [NOTE: Although this version of the bill is generally considered to be superior to the Senate version, there was still a great deal of testimony, both in support and opposition. The main concern is that the provisions of the bill are already clearly established in state and federal law and in case law making this bill unnecessary. As a result, the bill’s intent to clarify these provisions may cause confusion rather than clarification. The Senate companion bill — SB 436 – is similar and passed 3rd Reading in the Senate Session today (see below).]
HB 373 – Education/Personnel Contracts by M. Grant – PASSED; PLACED ON HOUSE CALENDAR ON 2ND READING
The bill clarifies that the district must issue contracts on an annual basis and may not award — or alter or limit its authority to award — an annual contract to instructional personnel based on a contingency or condition. The bill specifies that the provisions of the bill apply only to collective bargaining agreements entered into or renewed by a district school board on or after the bill is enacted. [NOTE: The Senate companion bill – SB 856 – is identical but has not been heard in any of the three committees of reference.]
HB 591 — Maximum Class Size by Massullo – AMENDED AND PASSED WITH A COMMITTEE SUBSTITUTE (CS)
The bill removes the exemptions for class size requirements and maintains class size compliance for each classroom but revises the method for calculating the penalty to be at the school average for any school that fails to comply with class size requirements. The bill repeals an increase in the penalty for failure to comply with the class size requirements and provides that a district may not have its class size categorical allocation reduced for the 2017-18 or 2018-19 fiscal years if it meets certain requirements. In addition, the bill requires a school district that has not complied the class size requirements and has developed a compliance plan to address the non-compliance to post the plan on the district’s website and provide the plan to the school advisory council of each noncompliant school. A noncompliant school also may post the plan on its website. [NOTE: Today’s amendment related to posting a district compliance plan and providing the plan to the school’s advisory council. This short summary reflects these changes. This was the last committee of reference for this bill. The Senate companion bill – SB 808 – is similar and has passed one of four committees of reference.]
HB 781 — Designation of School Grades by Porter – PASSED; PLACED ON HOUSE CALENDAR ON 2ND READING
Under current law, a school that serves any combination of K-3 students, that does not receive a school grade as a result of its students not being tested and included in the school grading system, receives the school grade of a K-3 feeder pattern school if at least 60% of the students are assigned to the graded school. The bill revises the number of students required to establish a school feeder pattern from 60% to a majority. [NOTE: The Senate companion bill – SB 1222 – is similar but has not been heard in any of the three committees of reference.]
HB 827 — Teacher Bonuses by Porter – AMENDED AND PASSED WITH A CS
Under current law, individual teachers of IB, AICE, AP, and CAPE courses are awarded bonuses – capped at either $2,000 or $3,000 per year — from portions of the additional funds for students who achieve specific result in the course. The bill removes the annual teacher bonus limits for these courses. In addition, the bill clarifies that at least 80 percent of the AICE bonus funds are allocated to the school that generated the funds. [NOTE: Today’s amendment relates to ensuring that AICE bonus funds are properly allocated. This short summary reflect that change. This was the last committee of reference for this bill. There is no Senate companion bill.]
HB 1109 — Private School Student Participation in Extracurricular Activities by Antone – AMENDED AND PASSED WITH A CS
The bill revises private school student eligibility to participate in interscholastic and intrascholastic extracurricular activities by allowing a student in a non-FHSAA member private school to participate in interscholastic or intrascholastic activities at the school where the student could choose to attend pursuant to controlled open enrollment, in addition to the student’s zoned school which is currently permitted by law. [NOTE: Today’s amendment was a technical/clarifying amendment. This was the last committee of reference for this bill. The Senate companion bill – SB 1302 – is similar but has not been heard in any of the four committees of reference.]
In the House Judiciary Committee meeting:
HB 849 — Concealed Weapons and Firearms on Private School Property by Combee — PASSED; PLACED ON HOUSE CALENDAR ON 2ND READING
Under current Florida law, and subject to limited exceptions, a person — including a person who has a license to carry a concealed weapon or concealed firearm (licensee) – is prohibited from carrying a weapon or firearm at a school. The term “school” is defined in law to mean “any preschool, elementary school, middle school, junior high school, secondary school, career center, or postsecondary school, whether public or nonpublic.” The only person excepted from this prohibition is a law enforcement officer. However, current law does not prohibit, or even address, carrying a concealed weapon to a church or religious institution. The bill would amend current law to authorize a licensee to carry a concealed weapon or concealed firearm on private school property if a religious institution is also located on the property. [NOTE: It is important to note that the effect of this bill is limited by other state and federal laws regulating weapons and firearms. The Senate companion – SB 1330 – is similar and has passed the first of three committees of reference.]
In the Senate Session:
Bills on 3rd Reading:
SB 436 – Religious Expression in Public Schools by Baxley – PASSED 3RD READING; PASSED THE SENATE
- Requires that students’ course work be graded according to the expected academic standards, without regard for any religious content.
- Provides that, if students in a given school setting are permitted to wear clothing, jewelry, or accessories that display a secular message or symbol, then students may also wear items displaying religious messages or symbols.
- Authorizes students to express themselves in a religious manner, and to engage in and organize religious activities to the same extent as secular expressions and activities are permitted.
- Provides that school districts may not discriminate against their employees on religious grounds.
- Provides that school personnel may not be barred from joining in certain types of student-initiated religious activities under certain circumstances – i.e. the activity must be on school grounds, occur at reasonable times before or after school, be voluntary, and not conflict with the duties of the employee joining the student-initiated activity.
- Requires school districts to permit religious groups access to the same facilities for assembly that it permits such access to secular groups.
In addition, the bill requires school districts to adopt a policy establishing a “limited public forum” for student speakers at certain school events. The policy must include or be comprised entirely of the model limited public forum policy that the bill requires the Florida Department of Education to develop and publish. [NOTE: This version of the bill is considered to be more controversial than the House version because it contains some provisions that go beyond current law, particularly due to the provisions relating to a “limited public forum” and requiring school districts to adopt a policy designed by the Department of Education. The House companion bill — HB 303 – passed its last committee of reference today and has been placed on the House Calendar (see House Education Committee meeting above).]
Bills on 2nd Reading:
SB 80 – Public Records by Steube – READ 2ND TIME; PLACED ON 3RD READING FOR 3/29/17
The bill requires a court to award attorney fees and enforcement costs in actions to enforce public records laws if the court determines that an agency unlawfully refused access to a public record and the plaintiff provided written notice identifying the public records request to an agency records custodian at least 5 business days before filing the action. However, if the court determines that a plaintiff requested records or filed the enforcement action based on an improper purpose, the court must award reasonable costs and attorney fees against the plaintiff. An improper purpose is one in which a person requests records mainly to harass an agency, cause a violation of the public records law, or for frivolous purpose. [NOTE: The House companion bill — HB 163 – is similar and has passed two of the three committees of reference.]