Home AdvocacyPolicyWashington Notes2005 Sep

September, 2005 Contents

• Funding Update: Legislation Passed to Keep the Government Running, But It Slashes EETT Funding;More Work Ahead for Education Technology Advocates
• Education Update: Federal Government Moves to Help Hurricane Impacted Areas
• E-Rate Update: Senate Passes One-Year ADA Exemption
• Additional News: Higher Education Act Approved by HELP Committee; FCC Adopts Controversial CALEA Order

Funding Update

Legislation Passed to Keep the Government Running, But It Slashes EETT Funding; More Work Ahead for Education Technology Advocates

Congress passed legislation (called a Continuing Resolution) that provides funding to the Federal agencies that have not yet received their FY 06 funding allocations , thereby averting a government shutdown when the new fiscal year begins on October 1. The Continuing Resolution states that each program will be funded at the LOWER level of the FY 05 appropriation, the FY 06 Senate Committee Bill or the FY 06 House bill. The EETT program will therefore be funded at $300 million, the lowest of the three allocations and 40% less than its FY 05 funding level of $496 million. The Continuing Resolution will expire on November 18. Because the Department of Education will not distribute funding under the EETT program prior to November 18, the Continuing Resolution will not have an immediate impact on the program. However, it is possible that Congress will attempt to extend this Continuing Resolution to the end of FY 06, thereby gutting EETT to $300 million for the entire fiscal year. To prevent this outcome ISTE will join forces with education organizations and will activitate the ETAN network in the coming weeks to make sure Congress hears from the education community that this approach to funding is unacceptable and EETT must be funded at the $425 million level that was included in the Senate Committee bill.

Hurricanes Affect Federal Spending

Congressional efforts to provide funding relief in the wake of Hurricanes Katrina and Rita stalled movement on the regular FY 06 appropriations bills. Moreover, as some lawmakers have begun to advocate for offsetting the costs of hurricane relief with cuts in domestic programs, EETT faces a new threat to its existence.

The subject of paying for hurricane relief has already become contentious. The President stated that he would not support increasing taxes to pay for hurricane relief and recovery, thereby forcing Congress to look into cuts in government spending and increases to the federal budget deficit as relief offsets. Some of the ideas circulating for cutting costs include delaying the start of the Medicare prescription drug benefit for at least one year and cutting earmarks in the recent Transportation bill—never a popular option with Congress.

The House Republican Study Committee, led by Representative Mike Pence (R-IN), has released "Operation Offset," a document that lists programs that should be cut or eliminated to help pay for the hurricane relief funding packages. Some of the programs targeted for elimination include the Even Start Program, the National Science Foundation's Math and Science Program, and all federal funding for the Corporation for Public Broadcasting. Fortunately, EETT is not included in the offset package.

Another threat to EETT funding may be result from the Administration's proposal to allocate $2.45 billion for elementary, secondary and post-secondary education relief. While the sources of these funds remain unclear, Department of Education Secretary Margaret Spellings noted that several education programs might face cuts or elimination to help offset costs.

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Education Update

Federal Government Moves to Help Hurricane Impacted Areas

In the wake of Hurricane Katrina, Congress and the Administration have moved quickly to provide relief to impacted areas through a combination of funding and regulatory waivers. Congress has been particularly active on the funding front, with both the House and the Senate passing $62.3 billion for hurricane relief, much of which is directed towards schools and libraries.

On the House side, several measures to provide immediate relief for students have been passed. The Pell Grant Hurricane and Disaster Relief Act (H.R. 3169) protects students from having to immediately repay Pell Grants; the Student Grant Hurricane and Disaster Relief Act (H.R. 3669) extends the Higher Education Act through the end of the year. Legislation to allow the Secretary of Education to waive the repayment of federal education grant assistance (H.R. 3668, Public Law 109-67) also moved quickly through the House. Other waivers of educational obligations, including fiscal and administrative requirements of the Education Department General Administrative Regulations and highly qualified teacher requirements, are expected to be the focus of legislation over the following months.

In the Senate, the leaders of the Senate Health, Education, Labor and Pensions (HELP) Committee, Senators Michael Enzi (R-WY) and Edward Kennedy (D-MA), have introduced the Hurricane Katrina Education Relief Act, S. 1715, that would provide nearly $2.5 billion for education relief. In general, the bill would include payments for the recovery and replacement of instructional materials (including hardware and software) as well as provide for the rental of mobile educational units. The bill authorizes $900 million for school reopening grants and $100 million for supplemental educational services, including replacing lost or damaged assistive technology devices for persons with disabilities. Furthermore, the bill would grant waiver authority to the Department of Education to extend reporting deadlines, withdraw teacher qualification requirements for one year, and allow states and school districts to use funds more broadly.

Outside of Hill activity, the Department of Education has also taken action on hurricane relief. It has agreed to grant waivers of funding obligation deadlines for Fiscal Year (FY) 2003, 2004, and 2005. The Department of Education also plans to modify discretionary grant programs to focus activities in relief areas. In addition, it has informed states that they have the authority to allow school districts to increase the percentage of funds that they can carry over to the next fiscal year. Furthermore, the Department has granted a waiver to districts impacted by the hurricanes of the requirement that 25 percent of EETT funds must be spent on professional development in order to allow greater flexibility on the use of those funds.

The President is also heavily focused on educational relief, particularly regarding the reimbursement of transfer students. Included in the Administration's $2.45 billion education relief plan is a $1.9 billion package to reimburse schools taking on the responsibility of serving the over 372,000 students evacuated because of Hurricane Katrina. The President has proposed that all school districts, including charter schoolsenrolling ten or more displaced children, would be reimbursed up to $7,500 per child. Rates would be based on the number of displaced students enrolled multiplied by up to 90% of the state's average per pupil expenditure for education.

A more controversial aspect of the President's program is his $488 million proposal to help displaced public and private school students from the Gulf Coast pay for private schools elsewhere. This proposal has met with criticism from Democrats and voucher opponents, stating that private schools are not where funds should be distributed. The HELP Committee bill does not include any voucher provisions.

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E-Rate Update

Senate Passes One-Year ADA Exemption

We can report major progress this month on efforts to continue the exemption for the E-Rate program from provisions of the Anti Deficiency Act (ADA). The ADA bars the E-Rate's administrator from sending out E-Rate funding commitment letters without having sufficient cash in its accounts to cover commitments made in the letters. Last year, the E-Rate program was shutdown between August and November because the program had insufficient cash on hand to cover obligations. This situation was only resolved with the enactment of a one-year exemption to the ADA for E-Rate and all other universal service programs in December 2004. That exemption will expire on December 31, 2005 without further action by Congress.

On September 15, the Senate agreed to insert in its Commerce, Justice, Science (CJS) appropriations bill (H.R. 2862) of an amendment that exempts for one year the E-Rate and all of universal service from the ADA. While E-Rate advocates have been pushing for a permanent exemption to ADA and two pieces of legislation that would achieve that goal - S. 241 and HR 2533 - have continued to gain cosponsors, the Senate's action might prevent E-Rate funding disruptions next year. The Senate's CJS spending bill now heads to conference with the House's version, which does not contain any ADA exemption language. It is not yet clear when a final CJS bill will be ready for final passage.

FCC Makes Changes to E-Rate to Help Areas Impacted by the Hurricanes

The E-Rate program also received substantial attention during the relief efforts for Hurricane Katrina. FCC Chairman Kevin Martin has proposed to open a new filing window for affected schools and libraries this program year and to raise discount rates for all affected schools and libraries to 90% for this funding year and next funding year. The Chairman also proposes allowing schools and libraries serving evacuees to amend their Funding Year 2005 applications to account for their unexpected increases in student populations. While the full Commission has not yet approved these proposals and, in fact, their full details continue to be fleshed out, it is expected that the Commission will approve these changes.

FCC Continues Inquiry into Universal Service and E-Rate

Initial comments on the FCC's Notice of Proposed Rulemaking (NPRM) on the E-Rate program are due October 18th. This NPRM focuses on how the program is being administered, what steps the Commission can take to deter waste, fraud and abuse, what performance measurements should apply to the program, and whether the E-Rate should become a formula based and more flexible program. ISTE will be filing extensive comments in this rulemaking.

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Additional News

Higher Education Act Approved by HELP Committee

The Senate Health, Education, Labor and Pensions Committee approved the Higher Education Amendment Act of 2005, S. 1614, on September 8, reauthorizing the Higher Education Act (HEA) of 1965. Led by HELP Committee Chair Michael Enzi (R-WY) and Ranking Member Edward Kennedy (D-MA), the HELP Committee bill reauthorizes Title II, the Teacher Quality Enhancement grants, which are aimed at preparing pre-service teachers to be highly qualified as they enter the classroom. The bill restructures Title II into two key programs, State grants and Partnership grants and gears them towards funding efforts to ensure that teachers have the skills necessary to meet NCLB requirements. In addition, Title II includes new language mandating that participating programs prepare teachers to use technology effectively. The bill also requires states to submit an annual report describing how they will increase, among other things, the number of teachers prepared to effectively integrate technology into curricula. States would also be required to describe their activities to use technology to collect, manage, and analyze data in order to improve teaching, learning, and decision making for the purpose of increasing student academic achievement. Unfortunately, the Senate bill does not reauthorize the Preparing Tomorrow's Teachers to Use Technology (PT³) program.

In late summer, the House Education and the Workforce Committee approved its version of HEA, H.R. 609, the College Access and Opportunity Act of 2005. With respect to Title II, the Senate and House bills include similar language regarding preparing teachers to use technology. However, the House version reauthorizes PT³.

While the full House recently passed H.R. 609, it is unclear when the full Senate will take up S. 1614. Once the Senate completes action on the bill, the House and Senate will need to conference their bills.

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FCC Adopts Controversial CALEA Order

After a year-long rulemaking, the Federal Communications Commission issued an order that requires certain broadband and VoIP providers to make technical changes to their networks in order to accommodate law enforcement wiretaps. The order also requires these providers to undertake certain burdensome and costly "assistance" requirements in the event of a wiretap order. This new rule, issued pursuant to the Communications Assistance for Law Enforcement Act (CALEA), is highly controversial because the law, which was adopted over a decade ago, had previously only been applied to traditional commercial telecommunications providers. The FCC not only extends the law to the Internet and new information services without any new statuary authorization, it extends the requirements to non-commercial, "facilities based" broadband providers, including a number of education and binary networks.

For over a year, a coalition of higher education, K–12 and library organizations have fought for an exemption to this proposed CALEA expansion, arguing that it was not in the public interest to impose these costly and burdensome requirements on non-profit entities that are very rarely served with wiretap orders. But the FCC's order applies to all entities that provide wire or electronic communications switching and transmission services, noting only in a footnote that the Department of Justice has recognized that exemptions may be appropriate in certain cases and that it would be willing to "evaluate such requests." The Commission, in its order, did publish a new Notice of Proposed Rulemaking that will address whether the Commission should adopt specific procedures for exemption requests.

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Glossary

Conference Committee—A committee composed of temporary panelists from the House and Senate that meet to reconcile differences between the House and Senate versions of a bill.

Fair use—A somewhat nebulous concept that is often misused by consumer groups, private organizations, and lawmakers alike. The definition, as set forth in Section 107 of the 1976 Copyright Act, states that fair use is the doctrine that allows an individual who has violated copyright to justify that use under "recognized public purposes." Such public purposes may include, "criticism, comment, news reporting, teacher (including multiple copies for classroom uses), scholarship, or research."

Individuals with Disabilities Education Act (IDEA)—The 1997 reauthorzation of IDEA guarantees equal access to public education for people with disabilities. IDEA also includes a grant program to states and LEAs aimed at facilitating the education of children with disabilities by providing increased access to high quality programs and services.

Pay-as-you-go (PAYGO)—A Budget procedure that ensures that all legislation affecting direct spending or receipts is budget neutral in each fiscal year. Thus, any spending increases must be offset by funding cuts in other areas or tax increases.

Universal Design—"The term 'universal design' means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly usable (without requiring assistive technologies) and products and services that are made usable with assistive technologies." (Source: H.R. 4278, Improving Access to Assistive Technology for Individuals with Disabilities Act of 2004, Section 3)

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 Compiled and edited by Leslie Harris & Associates for ISTE.