The Advocate May 2024: April Was a Regulatory Frenzy

During a seven-day span in April, three different federal agencies introduced three separate regulations with major implications for school district leaders. The timing was not a coincidence. The Biden Administration was rushing to get these regulations finalized before the Congressional Review Act deadline. This deadline is not a firm one—it’s a deadline that is set by the Congressional Review Act statute that applies to any regulation published during the last 60 days of the current legislative session.

The Congressional Review Act or CRA states that any regulation can be overturned by the next Congress with a simple majority in both chambers. Calculating the exact CRA deadline is hard to do as Congress can always add a day or two to the calendar if it needs more time. In a big election year like this one, the rough estimate is that any regulation that the Biden Administration is worried about may be overturned by Congress in 2025 and would need to be published before mid-May, hence the April regulatory frenzy. 

The first regulation AASA was tracking most closely and the most high-profile regulation overall was the new Title IX rules on sex-based discrimination from the U.S. Department of Education. The rules for the first time codify protections for LGBTQ+ students, employees, and parents against discrimination, including harassment, based on sexual orientation or gender identity. The rules do not make any changes to rules regarding athletic participation by transgender students, which may be addressed in later rulemaking, but do purport to apply to the use of intimate facilities such as bathrooms and locker rooms.

Unlike the 2020 rules from the DeVos Administration, these rules cover not just sexual harassment but also all types of sex-based harassment and discrimination. With respect to “hostile environment sexual harassment,” the rules broaden the definition to include conduct that is severe but not pervasive or pervasive but not severe. The rules also now cover more off-campus conduct, although with some important limitations. Legal challenges in several states are underway arguing that that USDOE has overstepped its authority with these regulations. While we can’t predict whether any of the litigation will be successful, we do encourage superintendents to take the safe bet and work on implementing these new regulations or risk noncompliance with OCR. For more on how to begin to implement them, we encourage you to check out our webinar on May 6.

The second set of regulations we were tracking were the new school meal rules from the U.S. Department of Agriculture. AASA sent strongly worded comments on the proposed regulations in 2023 detailing our concerns about how further changes to the nutrition standards could negatively impact the palatability of meals and participation of students in the free/reduced meal programs. We were thrilled to see that USDA acknowledged the concerns we raised and accepted a more reasonable approach to updating the nutrition guidelines. Specifically, the final rule for sodium is less stringent than the proposed regulations, which would have required  three separate reductions of sodium. The final rule requires one phased-in reduction of sodium, stopping at Target 2. Schools will have until SY27-28 to be in compliance.

In addition, districts will not have to do anything different for SY24-25 – everything will remain the same and there are no changes to the milk and whole grain rules when compared to current law. In addition, there is no limit to how many days districts can serve “grain-based desserts” (i.e. cereal bars, doughnuts, sweet rolls, toaster pastries, coffee cakes and fruit turnovers). As expected, there are new limits on sugar beginning in fall of 2025, but we believe manufacturers will have plenty of time to address the new added sugar limitations. You can read a more detailed summary of the final regulations here.

The third and final set of regulations AASA was awaiting were the new overtime rules by the U.S. Department of Labor. The final rule includes two-tiered increases to the minimum salary threshold and the threshold for highly compensated employees (HCE) as well as automatic updates to both thresholds. The minimum salary threshold will be increased to $43,888 on July 1, 2024, and then to $58,656 on January 1, 2025. This represents more than a 60% increase over the current threshold of $35,568. The rule does NOT make a change to the professional exemption, continuing the practice of keeping teachers ineligible for overtime pay. Teachers will NOT be eligible for overtime. While teachers and school administrators are exempt from the federal overtime rule, the change will lead to increased overtime costs for some district employees, like school nurses, athletic trainers, and librarians. It will likely also increase the burden of recordkeeping and tracking hours for more employees.

There may be one or two regulations that also impact districts in the coming weeks, but we expect the summer and fall to be relatively quiet on the administrative front. We will continue to keep superintendents aware of what the other two branches are doing that could impact their students, budgets and district operations.