December 16, 2022

Dear Colleagues:

On Friday afternoon President Biden signed a short-term funding bill, otherwise known as a continuing resolution or CR, that will keep the government open and funded through December 23rd. The CR keeps the government open and freezes funding levels at their FY22 levels while appropriators finalize a deal for the FY23 spending bill. Stay tuned as we now have one more busy week in Washington before Members of Congress break for the holiday.

1. Senate Shuts Down Resolution to Overturn New Rules on how the Department Allocates Federal Funds to Charter Schools

On Wednesday, the Senate struck down a GOP effort to overturn the Biden-Harris Administration’s new governance rules on how the Department of Education allocates federal funding to charter schools. The resolution, S.J. Res. 60 would have blocked Secretary of Education Dr. Miguel Cardona’s overhaul of the rules on how charter schools apply for federal funds. In May, Democratic Senators Booker (D-NJ), Feinstein (D-CA), and Bennet (D-CO) joined with Republicans in voicing their opposition to the Administration’s initial proposal. But, on Wednesday a 49-49 vote along party lines shut down the legislation from moving forward. Senate Minority Leader Mitch McConnell said on Wednesday that the Administration’s rules “hamstring charter schools and leave them more reliant on government bureaucracies.” Democrats for their part defended the rules with Chairwoman of the HELP Committee Senator Patty Murray (D-WA) saying that the GOP resolution would “undermine simple accountability measures” that are in place to ensure federal charter school funds are spent properly.

2. OCR Enters Resolution Agreement with Southeastern Cooperative Educational Programs (SECEP) Regarding the use of Restraint and Seclusion

On Friday, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that the Southeastern Cooperative Educational Programs (SECEP) in Virginia entered into a resolution agreement regarding the use of restraint and seclusion and the provision of a free appropriate public education (FAPE) to students with disabilities. OCR identified concerns that SECEP may have denied FAPE to students with disabilities when it did not reevaluate students after multiple incidents of restraint and seclusion and when students missed significant instructional time.

SECEP’s commitments to resolve the compliance review include:

  • Formalizing its policy and procedures on the use of restraint and
  • Modifying its recordkeeping system.
  • Training staff on SECEP’s revised policy and procedures and new recordkeeping system.
  • Reviewing files of currently enrolled students who were restrained and secluded since the start of the 2016-2017 school year to determine, in part, whether any student requires compensatory education for educational services missed due to incidents of restraint and
  • Developing and implementing an internal assessment tool to monitor and oversee SECEP’s use of restraint

In a statement Assistant Secretary for Civil Rights Catherine E. Lhamon said: “I thank SECEP for its commitment to reviewing the use of restraint and seclusion in its program, including reviewing the educational needs of students with disabilities, to ensure that SECEP is providing services that address those needs.”

The letter to SECEP is available here and the resolution agreement is available here.

3. In the States: Oklahoma Takes Significant Step Towards Allowing Taxpayer Funded Religious Schools

This month, Oklahoma’s departing Attorney General John O’Connor and Solicitor General Zach West, presented a non-binding legal opinion that suggests a state law which prevents religious institutions and private sectarian schools from public charter school programs is likely unconstitutional and thus should not be enforced. Oklahoma Republican Gov. Kevin Stitt said the advisory opinion “rightfully defends parents, education freedom, and religious liberty in Oklahoma.” Newly-elected state Superintendent Ryan Walters called it “the right decision for Oklahomans.”

The looming decisions and subsequent court battles will likely set the stage for constitutional debates surrounding the line between church and state. Derek Black, education and civil rights professor at the University of South Carolina School of Law, said in a recent interview:

“It is a whole other ballgame for the state to instruct children on religious doctrine and teach it as truth…That’s what we’re talking about here: State dollars in public schools, delivering instruction to children preaching religion as a way of life that must be adhered to. That’s staggering.”

The opinion relied on three U.S. Supreme Court cases involving religious institutions: Carson v. Makin in 2022, Espinoza v. Montana Department of Revenue in 2020, and Trinity Lutheran Church of Columbia v. Comer in 2017. The opinion references the high court stating:

“We do not believe the U.S. Supreme Court would accept the argument that, because charter schools are considered public for various purposes, that a state should be allowed to discriminate against religiously affiliated private participants who wish to establish and operate charter schools in accordance with their faith alongside other private participants.”

The next step will be to see if faith-based Oklahoma institutions successfully apply for taxpayer funded support to create charter schools that teach religion and if the state legislature will pass this in law. Early analysis suggest that other Republican-led states could present similar opinions.

4. Professional Learning Opportunity

The Learning Policy Institute in collaboration with AASA, The School Superintendents Association; Collaborative for Academic, Social, and Emotional Learning; and Science of Learning & Development Alliance will host a webinar entitled Whole Child Policy: Transforming Learning Environments on January 18, 2023 from 3-4 EST. This webinar will take a deep dive into actions states can take to transform learning environments based on the science of learning and development, including creating safe and inclusive, relationship-centered classrooms and schools. Experts and state leaders will discuss these and other essential approaches to creating whole child environments, such as adopting restorative practices and building integrated student support systems. You can learn more and register here.

With Congress poised to pass the FY23 budget next week, I will likely be back in your inbox (hopefully with some good news) one last time before I break for the holiday.

Until next time, see you on Twitter!