Happy New Year to you all! I hope your holidays were filled with peace and joy. With 2017 now underway, schools face some changes with ESSA compliance, as well as a U.S. Supreme Court ruling anticipated to issue a final determination on the U.S. Department of Education’s stance on Title IX’s applicability to gender identity.
Final regulations—effective January 30th—have been issued by the U.S. Department of Education addressing the accountability, data reporting and consolidated state plan provisions of the Every Student Succeeds Act. The new regulations address state-determined accountability systems, modify how differentiation is made among schools and how they are targeted for support and remediation, allow state and local education agencies to determine the interventions to address the targeted schools, expand the content to be contained in state and local school report cards, and require that the report card be developed with input from parents and made widely available, among other things. A link to a summary of the regulations may be found here, and a link to the timeline for identification of schools for support and improvement may be found here.
In what might be a resolution to the transgender student issue, the U.S. Supreme Court has granted a petition for certiorari in the G.G. v. Glouchester case, to review the holding of a U.S. Court of Appeals for the Fourth Circuit’s three-judge panel that the U.S. Department of Education’s interpretation of Title IX as being applicable to gender identity should be given deference by the courts. Three questions brought in the petition are 1) Should this Court retain the Auer doctrine (giving an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the regulation”) despite the objections of multiple Justices who have recently urged that it be reconsidered and overruled? 2) If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? 3)With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?
It should be an interesting year!