We typically do not share our personal political perspectives – you get plenty
of unsolicited political commentary from your Facebook friends. However,
we have already fielded numerous questions about what the election of
Donald Trump means for Nebraska’s schools and ESUs. We thought it would
be useful for our education friends and clients to see what we believe are the
issues that the presidential election may impact in the upcoming year.
The Trump campaign did not make a lot of detailed policy proposals related
to education. However both the candidates and their surrogates have
repeatedly emphasized some of Donald Trump’s basic positions that affect
education: he dislikes Common Core and prefers local control; he intends to
greatly reduce the size and scope of the federal Department of Education; he
strongly favors and intends to significantly increase funding for “school
choice”; and he will repeal Obamacare. To any school administrator who’s
been around the last few years, those are significant proclamations which
will impact public schools.
No one can predict exactly what the next few months and years will hold,
but we thought it would be a good idea to review the high (and low) points:
1. The FLSA changes go into effect December 1, 2016. Most
districts have been making changes to their compensation structures
to plan for the upcoming changes to the FLSA exemption regulations.
Short of one of the currently pending lawsuits being decided soon or
an act of Congress, the law will still change on December 1. The
election of a new president and a new Republican congress will not
change this implementation date.
2. Important parts of the ESSA go into effect December 10, 2016.
Though we are still in the NCLB-ESSA “transition year,” some key
components of ESSA such as increased educational stability for foster
students will go into effect in a few short weeks. As for the remaining
components of ESSA, we just don’t know. The regulations have not
been released yet and the direction of the regulatory process is now
hard to predict. ESSA gave to the Education Secretary quite a bit of
regulatory authority. In at least a few areas, most school
administrators have argued the Secretary has gone well beyond that
authority. So, if the promises of “less regulation” and a smaller
federal DOE come to fruition, the assumptions many have been
making about the final regulations will certainly change. We believe
key components will be prioritized and the process will speed up in
those areas, which we will be tracking closely.
3. PPACA (aka “Obamacare”) reporting for the 2016 year will
begin soon. The promises from Mr. Trump to “gut” or outright
“repeal” Obamacare became a daily occurrence, especially as
announced premium hikes hit the press in recent weeks. Whatever
the ultimate outcome, some components of PPACA will remain law for
at least a few more months. For example, unless we see a regulatory
halt or a sweeping act of Congress, PPACA reporting will happen again
this year. This will include the reporting obligations on forms 1094-C
and 1095-C for “large employers.” The IRS has already released
instructions on filling out the 2016 versions of the forms, which contain
different codes and considerations compared to the reporting from
2015. KSB is in the process of scheduling a training event sometime
in the month of December to cover the new forms and reporting
considerations for 2016, plus provide updates on what’s happening
with PPACA and its future after January. We’ll be sending out
information on that event after we have the details firmed up.
4. The Supreme Court will hear arguments and possibly take a
position on the rights of transgender students. The makeup of
the Supreme Court was obviously a huge issue in the presidential
election. The high Court currently has a vacancy, which we assume
President Trump will move to fill quickly after his inauguration. In the
mean time, the high Court will hear oral arguments in the case of G.G.
v. Gloucester, and the court must issue a decision in that case by June
2017. We do not know whether that case will be decided by the court
with its current to the current makeup of the Court or if the Court will
wait for a new Justice to be sworn in before issuing a final decision.
The law as it relates to the rights of transgender students remains
unclear and continues to change almost daily. The Court could provide
clarity on this issue much like it did same-sex marriage, or it could
simply “defer” to the agency interpretation of laws like Title IX. If the
latter occurs, then OCR’s interpretation from its May guidance letter
will be in place—at least until that is changes or repealed by President
Trump’s administration. For now, we continue to recommend that
educators stay informed on this issue and avoid major policy changes
until the legal requirements are clarified.
5. The Supreme Court will hear Endrew F., which could change the
legal standard for providing FAPE under the IDEA. As we noted
a few weeks ago in this update, the Court will decide the level of
educational benefit owed by schools to students who qualify for
services under the IDEA. The composition of the Court may impact
this decision, too. If the Court remains at 8 members, it could result
in a tie which would not change the standard on a national level.
However, if a ninth Justice is appointed by the time this case is
decided, we will likely have a ruling which may significantly alter the
legal standards under the IDEA.
6. The dozens of “Dear Colleague Letters” and “Guidance
Documents” issued by the Obama Administration in the last
few months are on uncertain footing. As you have heard us
discuss recently, the Obama Administration has been releasing dozens
of these administrative interpretations. The administration was
reported to have many additional agency guidance set for release after
the election but before the end of the Obama administration. These
interpretive documents do not change the substantive law but
announced major changes in the enforcement position of
administrative agencies like OCR. We have stacks of these guidance
documents which we have been sifting through, including documents
which require policy changes on issues like wellness, behavior
interventions, and others. For this very reason, we have been waiting
to roll out new and updated policies to our policy service subscribers
on many of these issues. Promises of deregulation from Mr. Trump
and yet further changes by Hillary Clinton caused us to go slowly on
telling our clients to make sweeping changes to policy and practice.
Now that an entirely new regime will take over in a few months, we
believe now is the best time to proceed deliberately and with an eye
toward knowing our clients have finite time and resources to do and
undo reactionary changes. In other words: sit tight and see what
direction the Trump administration takes on the validity and direction
of this sort of guidance.
Of course, the national election was not the only important event last night.
Both state and local election results will impact local boards and the
Unicameral. The next several months are likely to be tumultuous. Our
sincere hope is that education funding and policy takes its place near the top
of the list, where it belongs. We’ll continue to monitor all of these changes,
and will try to keep all of our education friends and clients informed. If you
have questions about any of these issues or the legal ramifications of future
changes, you should consult with your school district’s attorney or call
Karen, Steve, or Bobby.