I recently wrote a blog about the U.S. Department of Education’s (USED) announcement that the offices at USED that handle special education issues had identified for rescission 72 special education regulations and guidance documents. I included information about the immediate outcry from special education advocates and political adversaries of Betsy DeVos, the U.S. Secretary of Education, and how that resulted in the list of documents that were rescinded being reposted to the USED website, this time with an explanation for why each document was selected for removal. Following on the heals of the rescission of the special education documents comes the announcement of the rescission of nearly 500 more documents from other USED offices, including the Office of Elementary and Secondary Education (OESE) and the Office of Postsecondary Education (OPE).
There were 97 documents identified under OESE and 398 documents identified under OPE. A full list of documents from all offices is available here. There were three main reasons for the rescissions outlined in the reposted list of special education documents. They included:
- The document is unnecessary, usually due to the content of the document referencing programs or policies that are no longer in existence;
- The document is outdated, usually due to changes in the law, regulations, or reporting requirements; and
- The document has been superseded by another guidance or regulatory document and is therefore no longer in effect.
The announcement on USED’s website call these new documents identified for rescission ‘out-of-date’ and indicate that the documents have either been:
- Superseded by current law, or
- Are no longer in effect.
The original executive order requiring each federal agency to establish a Regulatory Reform Task Force to evaluate existing regulations and make recommendations regarding their repeal, replacement, or modification included the wording that required the identification of “regulations that (i) eliminate jobs or inhibit job creation; (ii) are outdated, unnecessary, or ineffective; (iii) impose costs that exceed benefits; (iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 or its guidance; or (vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.” From a review of documents identified for rescission, it appears that all of the documents were identified in only one category (the bold and underlined category).
As I mentioned in the previous blog, we have seen little to no new regulations coming out of USED since Trump took office. I also mentioned that this may be in part due to one of Trump’s Executive Orders (see Executive Order 13771) which requires that for “every one new regulation issued, at least two prior regulations be identified for elimination”. Thus, eliminating guidance and regulations that are outdated, unnecessary, or have been superseded is akin to picking low hanging fruit that could potentially open the door for the USED to produce new guidance and regulations.
The USED website announcement indicates that removing the out-of-date documents “will make it easier for schools, educators, parents and the public to understand what guidance is still in effect.” As with the special education documents identified for rescission, it does not appear that rescinding these documents will result in any significant impact on the implementation of education laws or programs (but it does raise at least one concern for me, read on).
Is it too soon to rescind some of these documents?
When I was working as a State Education Agency (SEA) director overseeing the NCLB era Title I, Section 1003(g) School Improvement Grants (SIG) I had a question about a specific and somewhat unique issue regarding the implementation of SIG grants in my state. When I could not find the answer to my question in any of the legislation or guidance specifically related to SIG, I raised the issue with USED staff. It turned out that my question was actually addressed in guidance issued for Focus and Priority Schools, categories of school improvement under the ESEA Flexibility Waivers that were granted to the majority of states (but not my state) to alleviate the burdens of an outdated NCLB accountability system. So, the answer to my question regarding school improvement in one ESEA program was actually found in ESEA Flexibility guidance for school in improvement under those provisions.
When I examined the list of documents being rescinded, both SIG and ESEA Flexibility documents are identified for elimination because these programs are no longer in effect. However, under ESSA we will now have schools identified for school improvement as Comprehensive and Target Support and Improvement schools. Rescinding the SIG and ESEA Flexibility guidance related to schools in some type of improvement status raises concerns for me because questions that will arise regarding schools identified for Comprehensive or Targeted Support and Improvement during the 2018-2019 school year might be answered in those documents being eliminated, but those answers will no longer be available.
There are many other documents identified for rescission in a number of different areas. Since we are very early in the implementation of ESSA, I believe it is too soon to rescind some of these documents, especially the documents for programs that are no longer in effect but for which newer, similar programs are included in ESSA.
TransACT will continue to monitor these types of guidance and regulatory actions at the federal level. If you have any questions, or for more information about TransACT’s Parent Notices and other products, please contact us at 425.977.2100, Option 3 or email at firstname.lastname@example.org.