ESEA Re-Authorization: Hot Button Issues Up for Grabs!

1. ESEA Re-Authorization: Hot Button Issues Up for Grabs! Sasha Pudelski Government Affairs Manager March 29, 2012

2. Senate Committee • One Comprehensive Bill Re-Authorizing ESEA • October 18-20th of 2011 • Chairman Tom Harkin, IA • Ranking Member Mike Enzi, WY • Voted out of committee 16-7 • Floor - Harkin says only when House has a bipartisan bill

3. House Committee • Two bills to reauthorize ESEA • Student Success Act & Encouraging Innovation and Teachers Act • Chairman John Kline, MN • Ranking Member George Miller, CA • Mark-up was Feb. 28 • All 23 R’s voted in favor, all 16 D’s vote against • Floor between now and July

4. ESEA: House & Senate Similarities • Both eliminate AYP, AMO, 100% proficiency • Both call for higher standards • Both require annual testing in math/reading in grades 3-8 and once in high school • Continued data disaggregation • States get big say in intervening in low-performing schools • Eliminates requirement re: tutoring and school choice

5. ESEA: House & Senate Differences • House model lacks any specific turn around models, as well as any parameters in identifying who would use models • House doesn’t include another percentage of schools for special attention (Senate specifies turnaround models for bottom 5% of schools) • House bill eliminates HQT requirement • House bill requires SEA/LEAs to develop teacher evaluation systems (Driven by student performance and having more than 2 levels); Senate only requires it for those applying for competitive grants • House bill includes significant expansion of funding flexibility

6. Hot Button Issues StallingESEA Re-Authorization Foster Care Bullying Student Non-Discrimination Assessments Seclusion and Restraint

7. Fostering Success in Education • Amendment to incorporate legislation introduced during HELP Committee mark-up by Sen. Franken (D-MN) • Franken introduced despite vocal opposition from superintendents in MN • Some Republicans voted for it, most did not • HUGE unfunded mandate for school districts

8. Under Franken’s Amendment you would have to: • State SEA and State Child Welfare would decide how payments for transportation to/from school of origin would work (this could mean schools would be on the hook for some, if not all, of costs) • No parameters on where the child is placed (could be 100s of miles away) • No ability to object to placement or to weigh in on child welfare agency decisions • LIKELY scenario: Child Welfare decides the placement, you pay for the kid to get to and from school without ability to object

9. And it’s not just transportation! • Foster Care students have the right to immediate enrollment • Mandate every district has a foster care liaison who cannot be the McKinney Vento liaison • Disaggregate student achievement by foster-care status in addition to other categories • No funding associated with any of these costs

10. AASA’s Talking Points • Unfunded mandate • We’ve never received the funding we need to transport homeless students, how can we be asked to serve another vulnerable population? • All other costs associated with a foster care child fall on child welfare and this should be no different • These policies will not actually improve outcomes for students in and out of the foster care system

11. Best Thing YOU Can Do • Address the problem of improving educational stability of foster care students by creating an MOU with your local child welfare agency • Prove you’re working to improve student outcomes for these vulnerable kids and the argument for federal mandates and intervention is greatly weakened • See www.fosteringconnections.org for a list of state laws that have been passed related to foster care

12. Bullying • What we started with and where are today are very different places • Safe Schools Improvement Act (H.R. 1648/S. 506 • Both have some bipartisan support • House bill has 145 co-sponsors, Senate has 39 These are high numbers • Bullying bill is top legislative priority for civil rights/LGBT community

13. Safe Schools Improvement Act as originally written would: • Require schools to report all bullying and cyberbullying incidents • Require that bullying data be disaggregated by subgroup • Have a very broad definition of bullying and cyberbullying • Require districts to have staff member who handles bullying complaints • Designate strict timelines for investigating and resolving bullying complaints

14. Negotiated Senate Version: • Creates federal definition of bullying that all schools must adopt • Conduct that is sufficiently severe, persistent or pervasive to limit a student’s ability to participate in or benefit from a program or activity OR create a hostile, abusive educational environment. • Must prohibit bullying based on sexual orientation and gender identity

15. Current Predicament • Civil Rights/LGBT Advocates still want to pass the original bill • We don’t want a federal bullying bill • 47 states have their own laws, regs and/or guidance on bullying, there’s no need for this! • If there must be federal bullying legislation, we prefer the negotiated Senate language, but don’t expect us to support it

16. Student Non-Discrimination Act (SNDA) • ANOTHER Al Franken Bill • ANOTHER fight with the LGBT/Civil Rights community • Introduced in both House and Senate (H.R. 998/S.555) • 157 co-sponsors in the House; 37 in Senate • It’s a small miracle this wasn’t add to ESEA during HELP mark-up

17. What does SNDA do? • SNDA prohibits public school students from being excluded from participating in, or subject to discrimination under, any federally-assisted educational program on the basis of their actual or perceived sexual orientation or gender identity or that of their associates. • The SNDA is closely modeled after title IX of the Education Amendments of 1972 which prohibits discrimination on the basis of sex and provides legal recourse to redress such discrimination.  • Considers harassment to be a form of discrimination • Allows an aggrieved individual to take legal action against the school district and recover reasonable attorney's fees should they prevail. • Allows the federal government to deny school districts federal funds if they are found to be in violation of any part of the legislation.

18. Why Does AASA Oppose It? • Granting individual students a private right of action against a school system creates new costs and administrative structures and is a slower path to preventing discrimination than training or professional development. • While AASA does not take a stand on whether a student’s sexual orientation or gender identity should be protected categories under law, we are committed to providing a safe and healthy school climate where all students feel safe and able to learn.

19. Assessments for Students With Disabilities • Should we keep having kids take a test they can’t do well on that does not demonstrate the progress they are making? • Disability community says HECK YES • AASA says NO • This boils down to a debate over the alternate assessment for students with significant cognitive disabilities

20. Sen. Isakson’s Amendment • Sen. Johnny Isakson of GA introduced an amendment in the Senate HELP mark-up to lift the 1% cap on students with disabilities who could take the alternate assessment • IEP team would determine appropriate assessment for student • Debate on this amendment was the longest of any amendment during mark-up • Struck down on party-line vote • Isakson promises to revisit amendment if/when ESEA goes to the floor

21. AASA’s Position • Arbitrary caps on alternate assessments are irrational and do not ensure students are properly assessed • If the IEP team decides a student should take an alternate assessment, the school should be able to count those students’ scores for accountability purposes

22. Seclusion and Restraint • Senate bill, Keeping All Students Safe Act (S.2020), introduced Dec 2011 • Goal was incorporation into Senate Committee draft of ESEA • Introduced as companion legislation to H.R. 1381 by Rep. Miller • We’ve had bills on seclusion and restraint before, but never a bill like Senate bill S. 2020

23. Bill Details • S&R prohibited for special-ed and gen-ed students • Prohibited from being including in IEP • Requires all state training to be from state-certified training center (no train-the-trainer approach) • Schools must collect and submit data on: • the number of incidents that resulted in injury to student or school personnel, • that resulted in death, • in which the school personnel were not trained or certified to perform restraint, • age of student, disability category, race, ELL status, and socio-economic status • Mandated debriefing session all personnel all school personnel in the proximity of the student immediately before and during the time of the restraint must attend • Information communicated by the student in de-briefing session cannot be used against the student in any disciplinary, criminal or civil investigation • This debriefing session must occur within five days of the incident and parents must receive verbal or electronic communication the day of the incident as well as formal written notification within 24 hours of the incident !

24. But the real kicker is… • Serious Bodily Injury • In S. 2020, restraints can be used in emergency situations by trained personnel, but only when the student is at risk of imposing “serious bodily injury” on himself or others. • What is the ‘serious bodily injury’ standard? • substantial risk of death;  • extreme physical pain;  • protracted and obvious disfigurement • It is NOT A broken nose or pain rated a “7” on a scale of 1-10

25. What happens if you use restraint when it’s not serious bodily injury? • Inappropriate restraint would mean a denial of FAPE- you could lose federal funds! • Increase in litigation that you would likely lose • In addition, if restraint is not written into IEP the parent would not have to exhaust administrative remedies prior to filing a lawsuit against a school district. This means that mediation and resolution processes, as well as due process hearings would no longer be necessary • Removing these procedural safeguards and allowing parents to immediately sue the district or launch a complaint to the SEA could dramatically increase litigation costs for school districts.

26. How we are fighting back • AASA Keeping Schools Safe report • New comprehensive survey that YOU SHOULD TAKE in April on use of seclusion and restraint • PROHIBITING these techniques does not mean they will no longer be necessary. • S. 2020 will mean more overly-medicated kids, more transfers to residential placement facilities and more injuries of students and staff.

27. New Legislation Can Help • AASA is pushing new legislation that would direct funding to schools with poor disciplinary track records when it comes to suspension/expulsion, seclusion/restraint and bullying/harassment • Rationale for this is simple: these “worst offenders” catalyze the need for federal legislation in the first place. • If we can improve these schools’ practices and policies, the rationale for broad federal legislation is greatly diminished • This bill gives a viable alternative for members of Congress to support instead of SSIA and S.2020

28. Get and Stay Involved! • Weigh in early, weigh in often • These decisions are made whether or not you weigh in. • 15 minutes per month is all it takes. • Get to know your Senator/Representative, and perhaps more importantly, their education staffer. • Invite the Representative/Senator and staffer to your district. Anecdotes and stories have a lot of sticking power with this Congress. Let the face of your school be the one that sticks in their mind!

29. Wondering how to stay on top of these hot-button issues? • AASA Website: www.aasa.org • Leading Edge Blog: www.aasa.org/aasablog.aspx • Get weekly updates from Capitol Hill on the Legislative Corps Weekly Update! Email me if you’d like to be on our list spudelski@aasa.org