On February 7, the U.S. House of Representatives passed a resolution (HR 57) introduced by Congressman Todd Rokita (R-IN) that would prevent recently-issued regulations on state plans and accountability under the Every Student Succeeds Act (ESSA) from taking effect. If enacted, this resolution (adopted pursuant to the Congressional Review Act) also would prevent future administrations from promulgating similar rules. It is unclear when a similar resolution will be taken up in the Senate.
We’ve received a lot of questions about President Trump’s 60-day “pause” of regulations that have not yet gone into effect, and the prospect of Congress rescinding ESSA regulations. To clarify what these actions might mean for students who are homeless or in foster care, we provide a short Q & A below.
- Would rescinding the ESSA regulations change the actual requirements, or the effective date, for the education of homeless children and youth under the McKinney-Vento Act?
No. The educational protections for children and youth experiencing homelessness, and State and local educational agency requirements for implementing them, are spelled out in the statute of the education subtitle of the McKinney-Vento Act, which was amended by ESSA. Per the statute, these requirements went into effect on October 1, 2016. The ESSA regulations do not have any effect on the core McKinney-Vento Act requirements. For more information, read the full text of the McKinney-Vento Act, or a two-page summary of the ESSA amendments.
- Would rescinding the ESSA regulations change the actual requirements for the education of children and youth in foster care under Title I, Part A? Would it change the effective date?
No. The basic requirements for educational stability for children and youth in foster care are included in the statute of Title I, Part A, as amended by ESSA. The text of these requirements may be read here. Under the Obama Administration, the U.S. Department of Education used its authority for “orderly transition” to impose a December 10, 2016 effective date for all the foster care requirements. This effective date is not addressed in the ESSA regulations. While the new Administration could use the same “orderly transition” authority to change the effective date of the state educational agency foster care provisions to align with the rest of the Title I, Part A ESSA amendments (2017-2018 school year), it seems unlikely.
- What do the ESSA state plan and accountability regulations say about homelessness and foster care?
The ESSA regulations of most direct relevance to children and youth experiencing homelessness and those in foster care are:
- requirements for dispute processes to be included in local procedures for transportation for children and youth in foster care;
- how disaggregated graduation rates should be calculated; and
- parameters for the inclusion of the McKinney-Vento Act’s Education for Homeless Children and Youth Program in the Consolidated Plan.
If Congress rescinds the regulations, those limited rules would have no effect. More information on these specific regulations may be found here.
- How does the potential rescission of the ESSA state plan and accountability rules affect the content and timeline for the submission of state plans?
It is unclear how the rescission of the ESSA regulations will impact the timeline for submitting State ESSA plans, including the McKinney-Vento Act state plan. Statements from Trump Administration officials indicate a desire to proceed with timely implementation of ESSA, including submission and review of state plans.
- How might the potential rescission of the ESSA regulations affect the calculation of disaggregated graduation rates for students who are homeless or in foster care?
The requirement for States to disaggregate and report on the achievement and graduation rate of students who are homeless or in foster care is included in the Title I Part A statute. Therefore, a rescission would not change the requirement. However, the ESSA regulation requires SEAs and LEAs to disaggregate graduation rates for children who are homeless or in foster care at any time during the cohort period.
Many students move in and out of homelessness and foster care over the course of their education. Therefore, graduation rates are incomplete and inconclusive if they only include students who were homeless or in foster care at the time they exited high school. Disaggregating graduation rates for children who are homeless or in foster care at any time during the cohort period will help SEAs and LEAs capture accurate data, including students who were homeless or in foster care earlier in high school, as well as those who dropped out of school prior to 12th grade.
We urge States to calculate graduation rates for students who are homeless or in foster care at any time during the cohort period, regardless of the fate of the ESSA regulations.
- What about the federal guidance on homelessness and on foster care issued by the U.S. Department of Education last year? Are these federal guidance documents still current?
All non-regulatory guidance issued by the U.S. Department of Education is non-binding; this means that it cannot create any new requirements that are not contained in statute. The new Administration is expected to review all guidance, including Dear Colleague Letters, issued by the Obama Administration. However, it is unclear how long this review process will take, and which guidance documents might be rescinded or altered. Even if the Administration rescinds the guidance on the McKinney-Vento Act, SEA and LEA requirements will not change, as the McKinney-Vento Act’s provisions are clear in the statute. SEAs and LEAs may be more affected if the Administration rescinds the guidance and Dear Colleague Letters on foster care, as those documents expanded on the statute significantly.
We will continue to provide updates on any Congressional or Administrative action related to ESSA or the McKinney-Vento Act. For more information, contact Barbara Duffield at Barbara@schoolhouseconnection.org.