DONALD TRUMP IS THE NEW PRESIDENT: 3 School Lawyers’ Initial Thoughts on the Big News and What It Means for Schools and ESU’s

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.