Senate Republicans Unveil HEALS Act

Senate Republicans unveiled a new COVID-19 pandemic response plan with a total funding level of approximately $1 trillion. It addresses public education in a variety of ways. The proposed legislation includes $105 billion for education including approximately $70 billion for K-12 education. However, two-thirds of the funding is only available to districts with approved re-opening plans that must be submitted to and approved by the Governor.  Republican leaders are referring to the comprehensive legislative section focused on appropriations as the HEALS Act (Health

The legislation in its current form has significant opposition but it will be used as a starting point for negotiations with the Democrats. It is expected it will change significantly as it moves through the legislative process. However, we wanted to highlight the proposal's major education components and their potential impact on local school districts. 

Education Stabilization Fund 

The total legislative package contains $105 billion for education (K-12 and higher education combined) overall. The funds are available through September 30, 2021 and allocated as follows: 

• $1 billion for outlying areas and the Bureau of Indian Education
• $2 billion for governors
• $69.6 billion for K12
• $29.1 billion for higher education 
• Maintenance of Effort.
• NAEP Funds and Administration Funds

Private Education Provisions

The HEALS Act includes provisions for the school choice program that U.S. Secretary of Education Betsy DeVos has proposed for Education Freedom Scholarships

Homework Gap

The legislation does not address the homework gap leaving this critical issue students across the nation are facing unresolved in this current proposal. Addressing the digital divide in education is an allowable use under the funds but this will create a competitive environment with many other important programs and will not adequately resolve the issue.

Liability

The legislation includes schools in its liability coverage. State tort liability laws are essentially eliminated under the legislation for issues arising from COVID-19 and replaced with a federal cause of action in which the plaintiff must prove their case through a clear and convincing evidence standard which is a higher standard than the normal one. Plaintiffs will need to prove that the defendant was not making reasonable efforts to comply with applicable government standards and /or guidance and was engaged in gross negligence or willful misconduct.

Reopening of Schools

As promised, the Virginia School Boards Association continues to monitor the Federal and State response to the COVID-19 pandemic to keep our members informed regarding policies that may impact school divisions across the Commonwealth. Yesterday, President Trump and Secretary DeVos demanded schools reopen in the fall with full-time five day a week learning. Both have made public statements that federal funding may be withheld from schools that do not reopen.

On its own, the Administration does not have the power to simply cut funding designated for public schools that has been appropriated by Congress, but they could try and put rules in place around pieces of the COVID-19 emergency funding through the CARES Act that could restrict funds through an interim final rule. It is likely that a court challenge would ensue if these actions were taken by the Trump Administration.

VSBA is in contact with the legal advocacy and government relations team at the National School Boards Association and has been informed they are exploring the options around such a rule and the potential legal challenges. 

It should be noted that the Administration has other methods to restrict funds in any new legislation passed by Congress. They could ask Congress to tie funding levels in new legislation to whether schools reopen. The President could threaten to veto any legislation that does not have such a provision. The legislative language would likely offer a carrot and stick approach if it were included in a bill.

Similar pressure has been used by Congress in the past. One of the best examples is the National Minimum Drinking Age Act passed in 1984 that tied state drinking ages with highway funding. The legislation required states to raise their ages to 21 by October 1986 or they would lose 10% of their federal highway funds-every state complied. This history raises the possibility that there could be strings attached to a funding bill. But I think the odds of a proposal with strings like that attached to it passing Congress are not high-particularly as more outbreaks pop up and concerns by parents and others increase.

It is not likely that House Democrats would agree to these provisions and the pressure on both parties to pass additional legislation is likely going to increase as the emergency worsens.

VSBA is in frequent contact with the Virginia Congressional Delegation on matters related to COVID-19 and the challenges school divisions in the Commonwealth face as they plan for reopening. We are working with our federal and state association partners to advocate for the necessary resources and local flexibility in developing reopening plans that meet the needs of their individual communities.

Please do not hesitate to contact VSBA Government Relations Specialist, J.T. Kessler, at jason@vsba.org or 434-295-8722 if you have questions regarding the Federal and State response to school reopening. As always, VSBA will keep you informed on the latest updates from Washington and Richmond as they develop.