Additional Bureaus And Offices

For those attorneys, accountants, experts, and specialists in the department’s remaining offices subject to closure whose positions might nevertheless be a key component of serving the mission—positions that might include the Office of the Secretary/Deputy Secretary, Office of the Undersecretary, Office of the General Counsel, Office of the Inspector General, Office of Finance and Operations, Office of the Chief Information Officer, Office of Communications and Outreach, and Office of Legislative and Congressional Affairs—the opportunity to join other agencies based on their expertise and the needs of other agencies should be made available. For example, OGC higher education lawyers would join the newly independent Federal Student Aid Office or the Department of Labor, and OGC civil rights attor- neys would join DOJ. These positions must first be determined to serve a continued mission need prior to being transferred.

Attorneys, accountants, experts, and specialists in the department’s remaining offices subject to closure, and whose positions are indispensable to serving the mission, should have the opportunity to join other agencies.

Current Laws Relating to the Department of Education That Require Repeal

In order to fully wind down the Department of Education, Congress must pass and the President must sign into law a Department of Education Reorganization Act (or Liquidating Authority Act) to direct the executive branch on how to devolve the agency as a stand-alone Cabinet-level department.

Congress should pass and the next President should sign a Department of Education Reorganization Act.

Current Regulations Promulgated by or Relevant to the Agency That Should Be Rolled Back or Eliminated While the next Administration works to distribute department programs across the federal government, it will need to thoroughly review the many educa- tion-related regulations promulgated by the Biden Administration. There are five primary regulatory targets (as of December 2022) that require the next Adminis- tration’s attention: regulations on (1) Charter School Grant Program Priorities; (2) Civil Rights Data Collection; (3) Student Assistance General Provisions, Federal Perkins Loan Program, and William D. Ford Federal Direct Loan Program Final Regulations; (4) Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Title IX); and (5) Assistance to States for the Education of Children with Disabilities, Preschool Grants for Children with Disabilities (Equity in IDEA). The next Administration should also review regulatory changes to the school meals program (under the Department of Agriculture) and changes to the Income-Driven student loan program. Additional Biden Administration regulations on (1) gainful employment, administrative capa- bility, and financial responsibility for institutions that participate in the federal student loans and grant programs; (2) Title VI, (3) accreditation of postsecondary institutions, and (4) female athletics are expected in to be released in 2023. Thoroughly review the many education-related regulations promulgated by the Biden Administration, as well as the school meals program and the Income-Driven student loan program.

Charter School Grant Programs

Congress first authorized the Charter School Program (CSP) in 1994 [Title X, Part C of the Elementary and Secondary Education Act of 1965 (ESEA), as amended, 20 U.S.C. § 8061 et seq. (1994)]. It most recently reauthorized the program in 2015 as part of the Every Student Succeeds Act.13 On March 14, 2022, the department published a notice concerning proposed priorities, requirements, definitions, and grant selection criteria relating to the award of federal grants to applicants in CSP. This proposal increases the federal footprint in the charter school sector by ignor- ing statute and adding to the list of requirements imposed on charter schools.

The new Administration must take immediate steps to rescind the new requirements and lessen the federal restrictions on charter schools

Civil Rights Data Collection

On December 13, 2021, OCR published a notice concerning proposed revisions to OCR’s Mandatory Civil Rights Data Collection (CRDC) in which it proposed

to create and collect data on a new “nonbinary” sex category (in addition to the current “male” or “female” sex categories) and to retire data collection that indi- cates the number of (1) high school–level interscholastic athletics sports in which only male and female students participate, (2) high school–level athletics teams in which only male or female students participate, and (3) participants on high school–level interscholastic athletics sports teams in which only male or only female students participate. These poorly conceived changes are contrary to law, fail to take account of student privacy interests and statutory protections favoring parental rights under the Protection of Pupils Rights Amendment, and jettison longstanding data collections that assist in the enforcement of Title IX.

The new Administration must quickly move to rescind these changes, which add a new “nonbinary” sex category to OCR’S data collection and issue a new CRDC that will collect data directly relevant to OCR’s statutory enforcement authority.

Student Assistance General Provisions, Federal Perkins Loan Program, and William D. Ford Federal Direct Loan Program Final Regulations Effective July 1, 2023, the department promulgated final regulations addressing loan forgiveness under the HEA’s provisions for borrower defense to repayment (“BDR”), closed school loan discharge (“CSLD”), and public service loan forgive- ness (“PSLF”). The regulations also included prohibitions against pre-dispute arbitration agreements and class action waivers for students enrolling in institu- tions participating in Title IV student loan programs. Acting outside of statutory authority, the current Administration has drastically expanded BDR, CSLD, and PSLF loan forgiveness without clear congressional authorization at a tremendous cost to the taxpayers, with estimates ranging from $85.1 to $120 billion.

The new Administration must quickly commence negotiated rulemaking and propose that the department rescind these regulations. The next Administration should also rescind Dear Colleague Letter (DCL) GEN 22-11 and DCL GEN 22-10 and its letters to accreditation agencies dated July 19, 2022, which are attempts to undercut Florida’s SB 7044, providing universities more flexibility on accreditation. Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (Title IX) With its Notice of Proposed Rulemaking published on July 12, 2022, the Biden Education Department seeks to gut the hard-earned rights of women with its changes to the department’s regulations implementing Title IX, which prohibits discrimination on the basis of sex in educational programs and activities.

Instead, the Biden Administration has sought to trample women’s and girls’ athletic oppor- tunities and due process on campus, threaten free speech and religious liberty, and erode parental rights in elementary and secondary education regarding sensitive issues of sex. The new Administration should take the following steps:

Work with Congress to use the earliest available legislative vehicle to prohibit the department from using any appropriations or from otherwise enforcing any final regulations under Title IX promulgated by the department during the prior Administration. Commence a new agency rulemaking process to rescind the current Administration’s Title IX regulations; restore the Title IX regulations promulgated by then-Secretary Betsy DeVos on May 19, 2020; and define “sex” under Title IX to mean only biological sex recognized at birth.

The Trump Administration’s 2020 Title IX regulation protected the founda- tional right to due process for those who are accused of sexual misconduct. The Biden Administration’s proposed change to the interpretation of Title IX disposes of these rights.

The next Administration should move quickly to restore the rights of women and girls and restore due process protections for accused individuals.

At the same time, there is no scientific or legal basis for redefining “sex” to “sexual orientation and gender identity” in Title IX. Such a change misrepresents the U.S. Supreme Court’s opinion in Bostock, threatens the American system of federalism, removes important due process protections for students in higher education, and puts girls and women in danger of physical harm. Facilitating social gender transition without parental consent increases the likelihood that children will seek hormone treatments, such as puberty blockers, which are experimental medical interventions. Research has not demonstrated positive effects and long- term outcomes of these treatments, and the unintended side effects are still not fully understood.

Work with Congress to amend Title IX to include due process requirements; define “sex” under Title IX to mean only biological sex recognized at birth; and strengthen protections for faith-based educational institutions, programs, and activities.

The next Administration should abandon this change redefining “sex” to mean “sexual orientation and gender identity” in Title IX immediately across all departments.

On its first day in office, the next Administration should signal its intent to enter the rulemaking process to restore the Trump Administration’s Title IX regulation, with the additional insistence that “sex” is properly understood as a fixed biological fact. Official notice-and-comment should be posted immediately. At the same time, the political appointees in the Office for Civil Rights should begin a full review of all Title IX investigations that were conducted on the understanding that “sex” referred to gender identity and/or sexual orientation.

All ongoing investigations should be dropped, and all school districts affected should be given notice that they are free to drop any policy changes pursued under pressure from the Biden Administration. The OCR Assistant Secretary should prepare a report of OCR’s actions for the new Secretary of Education, who should—by speech or letter— publicize the nature of the overreach engaged in by his predecessor. The Secretary should make it clear that FERPA allows parents full access to their children’s educational records, so any practice of paperwork obfuscation on this front violates federal law.