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Education Funding

Federal Rules in the Pipeline on COVID-19 Relief, Testing, Student Privacy

By Andrew Ujifusa — June 22, 2021 4 min read
President Joe Biden speaks in the South Court Auditorium on the White House campus, Wednesday, June 2, 2021, in Washington.
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The Biden administration plans to issue regulations governing two programs in the American Rescue Plan, as well as the federal law governing the privacy of student records and a pilot for new student assessments, among other priorities.

The list of upcoming rules from the U.S. Department of Education also includes those that would affect magnet schools, charter school facilities, and preschool special education grants.

Two notable sets of regulations that are relatively advanced in the bureaucratic process concern the American Rescue Plan, the coronavirus relief package signed into law by President Joe Biden in March that includes nearly $130 billion for K-12 education.

One involves the American Rescue Plan’s $800 million earmarked to support homeless students, a group that’s been hit particularly hard by the pandemic. The Education Department says its rules for the program will apply to three-quarters of the funding and will focus on the formula that state education agencies use to provide subgrants to local school districts. “Rulemaking is needed to establish the authority for State educational agencies ... to provide subgrants under this program,” the department said in a description of the upcoming rule.

The department released $200 million of that aid for homeless students in late April.

The other concerns the relief package’s $2.75 billion in relief for private schools. In describing its proposal, the Education Department notes that the package says this funding must go to private schools enrolling “a significant percentage of low-income students” and to “schools most impacted by COVID-19.” The agency notes that the American Rescue Plan does not define these terms, and that rules are necessary to do so.

Last year, then-U.S. Secretary of Education Betsy DeVos caused an uproar by pushing for virtually all private school students to benefit from coronavirus relief in the CARES Act, on the grounds that they were affected by COVID-19 just like their public school counterparts. But her critics alleged that she was trying to twist federal rules in order to help out out private schools, even if they were wealthy and relatively unaffected by the virus, at the expense of public schools and many disadvantaged students. DeVos ultimately lost that battle.

The upcoming rule from Biden’s Education Department, by contrast, could put relatively restrictive terms on which private schools benefit, or benefit the most, from the American Rescue Plan, depending on their status and demographics. Any rule would not apply to the separate, $2.75 billion pot of funding for private schools that Congress enacted in the second big COVID-19 relief package from December 2020.

The upcoming rules for homeless students and private schools under the American Rescue Plan both are pending at the administration’s Office of Management and Budget. It’s not certain when they’ll be cleared and released to the public, although the office does not show any upcoming OMB meetings about the rules for either the homeless funding or the private school funding.

Some of the items have appeared on the “unified agenda” for upcoming regulations previously.

For example: Many in the education field have been hoping for years that lawmakers will revamp the Family Educational Rights and Privacy Act to account for changes in education technology and other shifts in how schools operate. An upcoming rule from the department would fall well short of that reauthorization, but would aim to clarify the definition of “education records.” The rule would also attempt to clarify “provisions regarding disclosures to comply with a judicial order or subpoena.”

It’s not exactly clear what’s prompted this language. But tension between protecting student information and school safety was thrust onto the public stage after the 2018 shootings at Marjory Stoneman Douglas High School in Parkland, Fla. Some in Florida pushed for schools to share student information, such as medical records, with law enforcement on the grounds that such action could save lives, but civil liberties advocates were wary of such proposals. The Trump administration also weighed in on the issue after the Parkland shootings.

“It’s evident that FERPA permeated the Broward school district’s pervasive and continuing cover-up of what its personnel knew about [the alleged shooter], and what they did or didn’t do to prevent a deeply troubled student from becoming a mass murderer,” the Sun Sentinel newspaper, which covers the Broward County school district, declared in a 2018 editorial.

Here are a few other notes from the regulatory agenda put out by the Biden administration:

  • The Education Department plans to issue a rule for the testing pilot authorized by the Every Student Succeeds Act. The pilot was intended to push states and schools to explore new ways to assess students in order to improve instruction and learning, although it hasn’t exactly attracted a swarm of interest so far.
  • The administration also plans to issue rules for a part of the federal Charter Schools Program that’s designed to help states establish or enhance per-pupil funding for charter school facilities, and to support annual financing for those facilities.
  • Upcoming rules for the federal Magnet Schools Program will help “magnet schools that incorporate evidence-based designs and strategies that have been shown to both increase diversity and improve outcomes for students.” The department says this will further Biden’s executive order on “advancing racial equity” across the federal government. The Biden administration wants $149 million in assistance for magnet schools in its proposed budget, a $40 million increase from current funding.

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