Executive Director’s Report: Lame-duck Congress passes major education bills

By Anne L. Bryant

01/04/05 -- If you thought the recent political campaigns and elections were excruciating or exhilarating to watch, try a lame-duck session of Congress.

All of our lobbying efforts over the past three years on the Individuals with Disabilities Education Act (IDEA) came to a crescendo. Add the annual budget fight and the battle for the e-rate program, and you have what became one of the most important lame-duck sessions of Congress ever -- at least for education advocates.

First, we wondered whether after the elections there even would be a lame-duck session. We also wondered if Congress would use it to focus only on appropriations and the intelligence bill and fail to pass IDEA.

Then for a little spice, we had to fight an e-rate battle we probably never should have had to deal with in the first place.

First, the unfortunate news: Despite numerous efforts by NSBA, our Federation Members, and many other education groups, Congress did not provide the amount of funding needed for Title I or special education.

As you might recall, NSBA sought an increase of roughly $4.5 billion for Title I and special education. However, after the November election, congressional leaders crafted a massive appropriations measure (H.R.4818) that included nine different spending bills and factored in an across-the-board cut for all discretionary programs.

The end result was a measure that provides only a $400 million increase for Title I grants and a $514 million increase for special education.

NSBA will continue to oppose these kinds of funding levels. This issue will be the focus of our Federal Relations Network Conference (FRN) Jan. 30-Feb.1. We must continue to speak loudly and clearly on the need for sufficient funding. If we are to see major progress in student achievement, federal education funding must be at least what Congress had promised. State budgets and local property taxes simply can’t meet the needs of our nation’s public schools.

Funding No Child Left Behind and special education is a small price to pay for our nation’s future work force, which in turn drives our economy and our global competitiveness.

However, with the help of various congressional leaders, including Sen. Conrad Burns (R-Mont.), Congress restored a large portion ($198.4 million) of the funding for Title V state grants for innovative education programs.

The Senate Appropriations Committee and the full House had proposed eliminating this program, which received $296.5 million in 2004.

For IDEA, the story gets a lot better. We were pleased that Congress passed the conference report to reauthorize this critical piece of legislation.

If you have been reading School Board News for the last three years, you will know the reauthorization of IDEA has been one of NSBA’s top priorities. We have sent countless news reports and action alerts about this critical legislation to school board members who are part of our FRN and National Affiliate program.

Special education not only has a huge monetary impact on the nation’s school districts, but children with disabilities need the kinds of services this bill provides.

In broad terms, the new law (H.R.1350) reduces some of the more litigious aspects of special education. As a result of the changes in legal requirements, a substantial amount of paperwork and bureaucracy has been removed.

We believe that this will free up time, funding, and other resources that can now benefit student achievement, rather than being used for bureaucratic compliance.

For example, the new law makes it easier to amend individual education plans without actually convening IEP teams. Further, 15 states can apply for special regulatory waivers, including the development of IEPs for students that cover a three-year period.

It also clarifies the notice provisions under due process, which can prevent school districts from losing cases solely because of procedural errors. And it encourages mediation and allows school districts to recover attorneys’ fees from plaintiffs’ attorneys who file frivolous complaints.

One of the issues we had been concerned with is the overidentification of minorities. The new law allows school districts to use up to 15 percent of their IDEA money to provide pre-referral services -- programming for students who have special needs but might not need to be identified as having disabilities.

This change saves the cost of convening an IEP team and enables schools to provide services without tracking the students into special education, thereby reducing the overidentification of minority students as having disabilities.

We didn’t get as much as we wanted in the area of discipline. However, the law will allow districts to place children in an alternative setting pending the outcome of a manifestation hearing, rather than requiring the hearing before an alternative placement is made.

School districts now have the option of reassigning students who violate the discipline code without having to hold a hearing first.

NSBA made this legislation a major priority right to the end. We focused our attention on our FRN but we also sent numerous e-mails to our National Affiliate network.

Just in the last several weeks, we had more than 165 contacts alone from FRN members to members of the congressional conference committee handling the reauthorization of IDEA. Thank you for your important voices, which indeed had an impact on Congress.

Regarding the e-rate, this is a battle we should never have had to fight. Nevertheless we did and we won.

The $2.25 billion-a-year e-rate program, which enables schools and libraries to receive discounted telecommunications services, is part of the $6 billion universal service fund, which serves rural, high-poverty consumers and rural health care systems.

The e-rate fund is created by a formula that requires all telecommunications companies to contribute a certain amount of money each quarter. The “contribution factor” is determined by the Universal Service Administrative Co. (USAC) and the Federal Communications Commission.

The collection of money is like clockwork. The amount collected is determined by the USAC board based on how much money is needed to fund the various programs and companies’ revenues.

This summer, an unnamed bureaucrat issued a “finding” that the universal service fund should be treated as treasury money, or federal funds, which of course you and I know they are not. They are funds from private companies.

As a result of this finding, USAC must use different accounting procedures. But more important, it meant the universal service fund fell under the Anti-Deficiency Act, which says federal money cannot be committed unless it is literally sitting in the bank.

USAC’s quarterly collection system sends out letters of commitment in advance of when a school district will actually get the discounted service.

Districts know what they will get and when. This means districts can plan how to spend the savings for other technology needs, such as professional development, teacher training, computers, or software.

But because of this new finding, USAC announced in August that all letters of commitment had to stop. USAC had not collected sufficient funds to cover the program under the Anti-Deficiency Act, and to be in compliance, it would have had to raise the amount it collects from companies -- big time. Well, that caught everybody’s attention.

Suddenly, the telecommunications industry, schools, rural providers, and libraries were in an uproar. Having created the problem, the White House Office of Management and Budget (OMB) proposed a solution -- the issuance of “soft commitment letters” to schools and libraries that could serve as funding obligations.

The proposed letters would have stated “this tentative funding qualification letter does not constitute a contract or a binding commitment to provide discounts to the applicant or funds to its service provider.”

NSBA, the Council of School Attorneys, and school officials throughout the country provided plenty of information to the OMB saying that soft commitment letters would not be legitimate for budgetary and procurement purposes. In other words, soft commitment letters wouldn’t work.

You then responded -- with many letters, e-mails, and phone calls to members of the Senate and House.

In the last hour of the lame-duck session on Dec. 8, the Senate’s last act was to pass by unanimous vote the Telecommunications Act (H.R.5419), which exempts the universal service fund from the Anti-Deficiency Act.

Senators Olympia Snowe (R-Maine) and Jay Rockefeller (D-W.Va.) were tireless in their efforts to get this measure passed, and Sen. Burns came on board in a strong way as well.

A victory e-mail from the e-rate coalition organizer specifically thanks the school board voices and NSBA lobbyist Deborah Rigsby. It was a terrific win. Letters of commitment -- about 4,000 applications are in the backlog worth $400 million -- are now starting to flow.

But what’s ahead for the 109th Congress? Our focus will not only be on funding as I mentioned before but on fixing No Child Left Behind.