Ninth Circuit Affirms Highly Qualified Teacher Regulation

Posted by Kent Talbert on May 14, 2012

In a May 10, 2012 opinion in the case of Renee v. Duncan,  the U.S. Court of Appeals for the Ninth Circuit held:  (1) that prior to enactment of an appropriations amendment (Section 163 of the Continuing Appropriations and Surface Transportation Extensions Act of of 2011, Pub. L. No. 111-322), the highly qualified teacher regulation (34 C.F.R. 200.56(a)(2)(ii))--that permitted teachers still in training to be considered "highly qualified"--violated the Elementary and Secondary Education Act of 1965 (ESEA); and (2) after enactment of section 163 and until such time as the section expires at the end of the 2012-2013 academic year, the challenged regulation is consistent with ESEA.

The Court of Appeals noted the appeal was not moot, and those challenging the regulation were not entitled to judicial enforcement of the highly qualified teacher reporting requirement to Congress. 

School districts as well as teacher training organizations will want to review the opinion for its implications for the end of the 2012-2013 academic year.  

 

 

Executive Order Impacts Institutions Serving Active Duty Military and Veterans

Posted by Kent Talbert on April 29, 2012

In an April 27, 2012 ceremony at Fort Stewart, Georgia, President Obama signed an Executive Order (EO) that will impact institutions of higher education serving veterans and active duty military members.  

Consisting of five sections (Policy, Principles of Excellence for Educational Institutions Serving Service Members, Implementation of the Principles of Excellence, Strengthening Enforcement and Compliance Mechanisms, and General Provisions), the EO requires the Departments of Defense (DOD), Veterans Affairs (VA), and Education (ED) to establish principles that apply to postsecondary institutions receiving student education benefits under the Post-9/11 Veterans Educational Assistance Act of 2008 (Post-9/11 GI Bill), and the Tuition Assistance Program of the Department of Defense.

Specifically, the order will require:  (1) the "Know Before You Owe" financial aid form (under development by the Consumer Financial Protection Bureau and ED) to be made available to students participating in the DOD Tuition Assistance Program; (2) DOD to establish rules for how institutions of higher education gain access to military facilities; (3) VA to begin the process of trademarking the term "GI Bill;" (4) VA, DOD and ED to create a centralized complaint system for service members and veterans to approach with grievances against post-secondary institutions; (5) VA, DOD, and ED to develop improved outcome measures which will be available on ED's College Navigator website; and (6) VA and DOD to develop a plan to strengthen enforcement and compliance measures.

Post-secondary institutions that participate in the Post-9/11 GI Bill and Tuition Assistance Programs should review the Executive Order closely as well as monitor the VA, DOD, and ED web sites for future implementation announcements.

Talbert to Speak at Heritage Foundation Panel Discussion

Posted by Kent Talbert on April 16, 2012

I have accepted an invitation to discuss legal aspects of the Common Core Standards, the U.S. Department of Education-funded ($362 million) Race to the Top student academic assessments, and the Department-initiated conditions required in order to receive a No Child Left Behind Waiver. Hosted by The Heritage Foundation, the panel discussion will occur tomorrow, April 17, 2012 from 11:00 a.m. to 12:30 p.m. 

Final Rule on Student Health Insurance Posted

Posted by Kent Talbert on March 18, 2012

Late in the day on Friday, March 16, 2012, the U.S. Department of Health and Human Services (HHS) placed its final rule on student health insurance coverage on public display at the Office of the Federal Register. The rule will not appear in the Federal Register until March 21.

Arising out of the Patient Protection and Affordable Care Act (Pub. L. No. 111-148) the new rule sets forth the requirements for "student health insurance coverage" and defines such coverage as a type of individual market health insurance coverage offered to students and their dependents under a written agreement between an institution of higher education and an issuer. The rule also specifies certain Public Health Service Act requirements are inapplicable to this coverage. 

Colleges and universities will want to carefully review the rule noting the comments and responses of HHS.

Talbert & Eitel to Sponsor Annual Conference of Higher Education Attorneys

Posted by Robert Eitel on March 15, 2012

Bob Eitel and Kent Talbert will attend the 2012 National Association of College and University Attorneys (NACUA) Annual Conference from June 27-30 in Chicago.  Their firm, Talbert & Eitel, PLLC is pleased to be a sponsor of this year's NACUA annual conference, which will take place at the Chicago Downtown Marriott.

The premiere university and college membership organization, NACUA seeks to enhance legal assistance to colleges and universities by educating attorneys and administrators about campus legal issues and providing continuing legal education to college and university counsel.

Talbert & Eitel, PLLC has more than 25 years of combined experience in key positions in the U.S. Department of Education and on Congressional committee education staffs, as well as more than 20 years of sophisticated litigation experience.  This unique blend provides clients with in-depth knowledge in a wide of range of regulatory, legislative, and litigation matters that are critically important to institutions of higher education.  

GEORGE WILL DISCUSSES TALBERT EITEL LEGAL WHITE PAPER

Posted by Robert Eitel on March 11, 2012

In his column today, nationally syndicated columnist George F. Will discusses our paper, The Road to a National Curriculum:  The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers, released on February 9 by the Pioneer Institute. 

With only minor exceptions, the General Education Provisions Act, the Department of Education Organization Act, and the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act (NCLB), ban the federal government from directing, supervising or controlling elementary and secondary school curricula, programs of instruction, and instructional materials.

As we explain in our paper, through three major initiatives—the Race to the Top Fund, the Race to the Top Assessment Program, and ESEA flexibility guidance (i.e., NCLB waivers)—the Department has created a system of discretionary grants and waivers that herds state education authorities into accepting elementary and secondary school standards and assessments favored by the Department.  When combined with the use of discretionary NCLB waivers, these standards and assessments will ultimately erode these legal restrictions, with states serving as little more than administrative agents for a nationalized K-12 program of instruction.

I presented the paper to a colloquium at the Program on Education Policy and Governance at Harvard University on February 29.  Harvard initiated the PEPG Education Policy Colloquia Series in the spring of 2004 to foster an interest in education research by allowing scholars and others to present their findings in an open discussion with colloquia attendees.  All events are free and open to the public.

 

Charter School Replication and Expansion Grants Raise Questions

Posted by Kent Talbert on March 06, 2012

Charter School advocates should take a close look at today's U. S. Department of Education Federal Register Notice announcing the FY2012 grant competition for the Replication and Expansion of High Quality Charter Schools.  Applications are due May 7, 2012.  Under the FY2012 appropriations law, Pub. L. No. 112-74, Division F, Title III, the Secretary is authorized to reserve up to $55 million for the replication and expansion of successful charter models. 

A quick perusal of the Notice raises at least two questions:  (1) If pre-existing successful models are to be replicated, why has the Department included six competitive preference priorities that may necessitate applicants changing their models to be in the running for a grant? (2) Given the grants are to replicate successful models, why give novice applicants extra points? Why not put everyone on equal footing in the competition?

Potential applicants should also note that charter Replication and Expansion grants allow extra points for policies that promote diversity.  As many who follow this issue know, the U.S. Supreme Court has decided to review this area of the law later this year in the context of higher education admissions in Fisher v. University of Texas.  

 

 

EPIC SUES TO BLOCK FERPA REGS

Posted by Robert Eitel on March 01, 2012

The Electronic Privacy Information Center has filed a complaint in the United States District Court for the District of Columbia seeking to void the new FERPA regulations pursuant to the Administrative Procedures Act.  EPIC contends that the regs exceed the Department's statutory authority and requests the court to set aside the regulations.  You can read EPIC's blurb on the suit here. 

Higher Education State Authorization and Credit Hour Regulations Repealed

Posted by Kent Talbert on February 29, 2012

By a nearly three to one bipartisan margin of 303-114, the U.S. House of Representatives voted to repeal the Department of Education's state authorization and credit hour regulations. The bill--the "Protecting Academic Freedom in Higher Education Act" (H.R. 2117)--is sponsored by Rep. Virginia Foxx (R-NC), the Chairwoman of the Subcommittee on Higher Education and Workforce Training of the Committee on Education and the Workforce.  The legislation eliminates burdensome federal regulations that impose additional costs on colleges and universities, and that interfere with academic decision-making.  The American Council on Education, along with the National Association of Independent Colleges and Universities and several other higher education organizations, expressed strong support for the bill in a recent letter to Congress.

While not rising to the level of a veto threat, the Obama Administration opposes the bill as noted in its Statement of Administration Policy.  

The state authorization regulation is also the subject of a pending lawsuit in the United States Court of Appeals for the District of Columbia Circuit.  Background on the litigation and the state authorization regulation can be found in Bob Eiitel's blog posts of July 12 and July 20, 2011.  

 

Eitel to Present at Harvard's PEPG

Posted by Robert Eitel on February 27, 2012

I have accepted an invitation to present the paper, The Road to a National Curriculum:  The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers, that I recently co-authored with Kent Talbert.  The presentation is scheduled for Wednesday, February 29, 2012, at noon at the Program on Education Policy and Governance at Harvard University.  I look forward to meeting with the professors and students who attend.

Established in 1996 by Dr. Paul Peterson, the PEPG is located within Harvard's Government Department and the Kennedy School of Government's Taubman Center for State and Local Government.  PEPG is one of the sponsors of the well-regarded journal, Education Next.