Education Week - March 1, 2017 - 14

GOVERNMENT & POLITICS

Attention Turns to Courts in Battle Over Transgender Rights
Trump administration
revokes guidance
By Evie Blad & Mark Walsh
The Trump administration's decision to rescind Obama-era guidance
on the rights of transgender students
won praise from conservative organizations and ofﬁcials, who said the
guidance was federal overreach and
a threat to the privacy rights of students.
But transgender advocacy groups,
families of transgender students,
and a long list of national education
groups say leaving a civil rights issue
to local decisionmakers would remove

an important layer of protection from
vulnerable students, threatening their
well-being.
Attention of advocates and conservative activists alike now turns to the
U.S. Supreme Court, which is set to
hear a case on transgender-student
issues this month, and to at least ﬁve
other lawsuits on the issue pending in
federal courts.
The high court has asked both parties in the case before it to give their
views on the administration's decision
to rescind the guidance.
The U.S. departments of Justice and
Education issued a "Dear Colleague"
letter Feb. 22 that lifted requirements
that schools allow students to use
the restrooms and locker rooms that
match their gender identity.

The Trump administration had
signaled the shift. In retracting the
guidance, it did not provide its own
interpretation of whether the sex
discrimination protections in Title IX
apply to gender identity, the position
taken by the Obama administration.
"This is an issue best solved at the
state and local level," U.S. Secretary
of Education Betsy DeVos said in a
statement.
Advocates insisted that the federal
law still protects transgender students, regardless of the interpretation
of the current administration.
In addition to directions on school
facilities, the Obama administration's
May directive-which had been placed
on hold by a federal court pending litigation-called upon schools to respond

quickly to harassment of transgender
students, to use their preferred gender on school forms and in assigning
them to sex-segregated classes and
activities, and to keep their transgender status secret if they did not wish to
disclose it publicly. Federal civil rights
guidance carries an implied threat
that schools could lose federal funding
if they don't comply.

and afﬁrming transgender students,
the majority of transgender students
have been left behind," said a joint
statement from 19 organizations, including GLSEN, the National PTA,
and the National Association of Secondary School Principals, which had
asked for the original guidance. "For
the 60 percent of transgender students
who do not attend a school with supportive and afﬁrming policies, life can
be much more difﬁcult-and even danMore Than Bathrooms
gerous."
While bathroom policies have gotten
The organizations also disputed the
the most attention, the issue at hand Trump administration's assertion that
is whether schools will acknowledge the guidance had created confusion
transgender students' core identities, among school districts.
advocates said.
The decision was the first major
"The reality is that while schools na- policy announcement by DeVos, who
tionwide are increasingly supporting entered ofﬁce a few weeks ago after

Congress May Turn Focus
To Higher Education Law
Early in the summer of 2015,
progress on a new federal K-12 law
seemed to be stalled, and key members of Congress were turning their
attention to reauthorization of the
Higher Education Act.
But the script has ﬂipped, and 18
months later, as the transition to the
Every Student Succeeds Act enters its
ﬁnal stages, lawmakers are taking a
close look at revamping the law governing colleges and universities.
A broad set of issues will be under
the microscope, from Pell Grants for
low-income prospective students, to
the information about higher education programs made available to families as K-12 students consider their
postsecondary careers.
Republican lawmakers appear
ready to put their own stamp on the
HEA, which technically expired in
2013 and was last reauthorized in
2008. Both Sen. Lamar Alexander,
R-Tenn., and Rep. Virginia Foxx,
R-N.C., the leaders of their respective chambers' education committees, have made it clear they're
taking a close look at the law. "Our
major focus over the next year will
be on reauthorizing the Higher Education Act," Alexander said in a recent interview.
Alexander has previously expressed
worries about student overborrowing
and has indicated support for colleges
and universities having some "skin in
the game," or ﬁnancial responsibility
if students can't pay back their loans.
And he's likely to push for a dramatically simpliﬁed Free Application for
Federal Student Aid, or FAFSA. Alexander has criticized the length and
complexity of the form for years.
A 2015 Senate education committee
task force's report on higher education
regulations will likely play a key role
in shaping the next HEA, according
to an Alexander aide. That report said

Washington's current slate of higher
education regulations is costly to comply with and also stated: "Moreover,
many regulations are unrelated to
education, student safety, or stewardship of federal funds-and others can
be a barrier to college access and innovation in education." On the House
side, Foxx held a committee hearing
on higher education issues in February where she was critical of rising
costs and how much information colleges and universities must report as
a result of Washington mandates.
"The federal government has tied
states and institutions up in red tape"
over the eight years of the Obama administration, Foxx said. "It's time for
the federal government to get out of
the way."

'Driving the Train'
"I think Alexander is still really
driving the train," said Michael V.
Reilly, the executive director of the
American Association of Collegiate
Registrars and Admissions Ofﬁcers.
"Alexander, with [Sen. Patty Murray,
D-Wash., the Senate education committee's top Democrat], are still going
to construct this Higher Education
Act. I think Foxx may be in charge of
addressing some of the vestiges of the
Obama administration."
The role of U.S. Secretary of Education Betsy DeVos in the law's reauthorization remains to be seen.
A longtime K-12 school choice advocate, DeVos does not have signiﬁcant
experience in the higher education
world. (Neither did her two predecessors in the Obama administration,
Arne Duncan and John B. King Jr.)
In remarks last month to a community college legislative summit, DeVos
did indicate support for making Pell
Grants more ﬂexible in order to help
those students "working to graduate
more quickly."
Foxx, meanwhile, has moved

14 | EDUCATION WEEK | March 1, 2017 | www.edweek.org

J. Scott Applewhite/AP-File

By Andrew Ujifusa

Sen. Lamar
Alexander, R-Tenn.,
chairman of the
Senate education
committee, and his
counterpart in the
House, Rep. Virginia
Foxx, R-N.C., have
made clear they will
take a close look at
the Higher Education
Act, which is overdue
for renewal.

quickly to address one holdover issue
from the Obama years that's related
to the HEA. But this effort didn't involve a reauthorization bill.
In February, the House of Representatives voted to block regulations governing teacher-preparation programs
that were ﬁnalized late last year by
the Obama administration. Those
rules require colleges to rate all their
teacher-training programs as either
"effective," "at-risk," or "low performing." They also allow measurements
of teacher effectiveness to be based on
factors other than test scores or testbased teacher evaluations.
However, Rep. Brett Guthrie, R-Ky.,
who introduced the House measure
to block the rules, said on the House
ﬂoor that "teacher preparation should
be addressed by reauthorization of
the Higher Education Act" and not
through executive "fiat." (As of late
last week, the Senate had not voted
on whether to block the teacher-prep
rules.)

Collection and Reporting
Education advocates are watching to see how the administration
handles the various sorts of data
students generate in the higher
education system. At the broadest
level, an improved HEA would better identify concentrations of high
remediation rates in colleges and

universities in order to help students choose different postsecondary tracks, said Phillip Lovell, a vice
president at the Alliance for Excellent Education, which promotes college- and career-readiness.
"More transparency around the
pathways that kids take in high
school and their postsecondary outcomes could lead to parents and students making more informed choices
about how likely the pathway that
they're on is going to lead to them
being prepared for postsecondary
[work]," Lovell said.
One of the most consistently controversial parts of debates over data
from higher education has been
whether to create a federal system
based on "student-unit records," which
track information from individual students. Those records could provide a
variety of data points on graduation
rates, debt loads, and other metrics.
Supporters say many colleges favor
such a system, and it would bring together various streams of information
into a single database that could be
very useful for students, college counselors, researchers, and others. Critics
say such data would be cumbersome
for colleges to collect and report, and
that a combined database would be
redundant and create student-privacy
concerns.
Alexander has also been skeptical
about how much students use the

sort of data from higher education
made available by Washington. That's
a concern shared by the registrars
and admissions ofﬁcers association's
Reilly, who said that for many students from low-income backgrounds,
"the reality of being able to go out and
check those kinds of resources and
decide where you're going to go is far
less practical than [for] students with
income."
If there are certain privacy protections and partnerships used to help
create student-unit records, Reilly
said, his association could end up supporting such records.
The student-unit record could prove
a tough nut to crack, especially with
the current congressional leadership in place. During the last round
of negotiations over the renewal of
the HEA, for example, Foxx wrote a
provision into the bill banning such a
student-unit record system.

Past Policy and Pell Grants
But the previous skepticism from
Alexander and Foxx about detailed
data collection and reporting on college students is at odds with the
type and level of changes needed to
help students make better decisions,
said Ben Miller, the senior director
for postsecondary education at the
Center for American Progress, a leftleaning Washington think tank.

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Education Week - March 1, 2017

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