The United States District Court for the Northern District of Texas on March 30, 2023, issued a ruling in Braidwood Management v. Becerra striking down a provision of the Affordable Care Act (ACA) that requires private health insurance plans to cover preventative healthcare services without patient cost-sharing.
Braidwood Management sued the U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra arguing that the ACA’s preventative services coverage mandates are unconstitutional because they violate the appointments clause of the U.S. Constitution by giving the U.S. Preventative Services Task Force (USPSTF) authority to make rules regarding coverage. The company further argued that the ACA’s requirements violate the Religious Freedom and Restoration Act (RFRA) by requiring the company to cover preventative services and medications that prevent HIV and other sexually transmitted diseases.
Judge Reed O’Connor on September 7, 2022, issued the first ruling in Braidwood Management v. Becerra and held that ACA’s requirement that the company covers preventative services and medications that prevent sexually transmitted diseases violates the RFRA. Judge O’Connor later issued a March 2023 order vacating any federal agency action that has occurred since ACA’s passage to implement USPSTF-recommended preventative services published after March 23, 2010.
HHS appealed the case to the United States Court of Appeals for the Fifth Circuit on March 31, 2023. Becerra argued in a statement, “Efforts to strip away access to preventive health care are harmful and unacceptable.”
Massachusetts Gov. Maura Healey (D) on March 15, 2023, announced that Massachusetts’ COVID-19 state public health emergency will end on May 11, 2023, to align with the end of the federal public health emergency. The governor also announced that on May 11 she plans to rescind state Executive Order 595, which requires all executive branch state employees to receive a primary series of COVID-19 vaccinations to remain employed by the state.
Gov. Healey said that the state has made important progress in the fight against COVID-19 throughout the public health emergency. She said, “we’ve reached the point where we can update our guidance to reflect where we are now.” Executive Order 595, implemented by former Massachusetts Gov. Charlie Baker (R), required all state employees in the executive department to receive a first round of vaccinations to maintain employment by the state.
Patrick McNamara, president of the Massachusetts State Police Association, said that the vaccine mandate led to 20 state troopers being fired or suspended without pay: “This has been a long journey for our membership. We have been seeking the same treatment as other Commonwealth employees and for our leaders in government to hear our voice. Today, the Healey-Driscoll Administration did just that with the announcement to rescind Executive Order 595.”
Twenty states, all with Republican governors, prohibit proof-of-vaccination requirements. In eleven states, governors banned proof-of-vaccination requirements through executive orders. In nine states, legislators passed laws banning proof-of-vaccination requirements.
Texas Attorney General Ken Paxton (R) on Feb. 15, 2023, filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the Consolidated Appropriations Act (CAA) of 2023, arguing in part that certain CAA provisions violate state sovereignty and that Congress unlawfully passed the law without a quorum of members present.
The U.S. House of Representatives passed the CAA in December 2022 with 201 of the chamber’s 435 voting members present. House rules at the time under then-Speaker Nancy Pelosi (D) allowed members to vote by proxy due to the coronavirus (COVID-19) pandemic. In addition to general appropriations provisions, the CAA created certain workforce accommodations for pregnant employees as well as the Department of Homeland Security’s case-management pilot program for individuals who entered the country without legal permission.
Paxton argued that “the Constitution defines absent members as excluded from ‘a Quorum to do Business’ and therefore unauthorized to vote to enact legislation—by ‘proxy’ or otherwise.” Paxton further argued that the CAA’s workplace accommodations “attempt to abrogate Texas’s sovereign protection from being sued without its consent” and that the DHS pilot program “harms Texas’s quasi-sovereign interests in the health and well-being, both physical and economic, of its residents and in its rightful status within the federal system.”
The U.S. District Court for the Northern District of Texas had not set a date for oral argument in the case as of Feb. 27, 2023. The White House had not responded to the lawsuit as of Feb. 27, 2023.
Welcome to Hall Pass, a newsletter written to keep you plugged into the conversations driving school board politics and governance.
In today’s edition, you’ll find:
On the issues: Is America in an educational revolution?
In your district: seniority versus performance-based pay
School board filing deadlines, election results, and recall certifications
Approximately 24,100 school board seats are up for election in 2023
Extracurricular: education news from around the web
Candidate Connection survey
Email us at editor@ballotpedia.org to share reactions or story ideas!
On the issues: Is America in an educational revolution?
In this section, we curate reporting, analysis, and commentary on the issues school board members deliberate when they set out to offer the best education possible in their district.
In this section, we typically explore the debate around one narrow topic in education. Today, however, we’re zooming out to consider two big-picture reflections on the state of innovation in America’s K-12 education system.
David Brooks writes that not enough is being done to meaningfully improve that system. Brooks says many popular reform ideas, like school voucher programs and charter schooling, do not get at the heart of what is holding back progress in education. Instead, he says political leaders should be driving policy discussions to rethink traditional models of classroom education, including experiments with class schedules and creating more personalized learning experiences.
Max Eden writes that education policy discussions, especially in Republican-controlled states, are leading to policies that improve schools. Eden says mainstream school policy conversations have generally moved past the topics that Brooks believes are unproductive. Eden says Education Savings Account (ESA) programs are giving parents the flexibility to personalize their children’s education. He also writes that the push for phonics-focused reading instruction will meaningfully improve learning outcomes.
“[Y]ou would think that education would be one of the most talked about subjects in America right now. You would think that President Biden would be offering comprehensive plans to reform American schooling. You would think efforts by governors and mayors to address these problems would be leading newscasts and emblazoned across magazine covers on a weekly basis. But this is not happening. In his State of the Union address, Biden offered no ambitious plans to fix America’s ailing schools. The Republican Party can’t utter a complete sentence on the subject of school reform that doesn’t contain the initials C.R.T. What we’re seeing here is a complete absence of leadership — even in the midst of a crisis that will literally bend the arc of American history. This moment of disruption should be a moment of reinvention. It should be a moment when leaders rise up and say: Let’s get beyond stale debates over charters, vouchers, gender neutral bathrooms and the like. We’re going to rethink the nuts and bolts of how we teach in America. … The pandemic reminded us how much we lose when teachers can’t do their jobs in the way they want to do them. But there now has to be political leadership to shake up a calcified system, and hurry the reinvention that has to happen.”
“Brooks clearly did not do his homework. At least in red states, legislative action on education has been astonishing in both speed and scope. … Brooks wishes that we could ‘get beyond the stale debate over charters [and] vouchers.’ Well, we are. The main school choice debate is no longer over those structurally limited programs that serve a limited number of students but rather over universal programs that place full purchasing power in the hands of parents. Unlike a voucher, which can only be applied toward an accredited private school, education savings accounts place state funding into a flexible spending account that could be put toward private school tuition, tutoring, homeschool expenses, or a ‘learning pod’ or ‘micro-school.’ … The school choice movement is poised to make more progress in the first half of 2023 than it made in the preceding 23 years. … Beyond that, there is a quieter but potentially more consequential revolution afoot: a reading revolution. … Thanks in part to the excellent journalistic work of Emily Hanford’s Sold a Story podcast series, red states are taking aim at three-cueing and throwing more resources behind phonics. … Between completely changing the paradigm of school finance to allow a thousand flowers to bloom and homing in like a laser on proper reading instruction, it’s hard to imagine a greater revolution in a shorter time.”
In your district: seniority versus performance-based pay
School districts face diverse issues and challenges. We want to hear what’s happening in your school district. Please complete the very brief survey below—anonymously, if you prefer—and we may share your response with fellow subscribers in an upcoming newsletter.
Today’s question:
Do you believe teacher compensation should be based on merit, seniority (which usually includes level of education), or a combination of both merit and seniority?
As part of our goal to solve the ballot information problem, Ballotpedia is gathering information about school board candidate endorsements. The ballot information gap widens the further down the ballot you go, and is the worst for the more than 500,000 local offices nationwide, such as school boards or special districts. Endorsements can help voters know more about candidates and what they stand for.
Do you know of an individual or group that has endorsed a candidate in a race in your district? Click here to let us know.
School board update: filing deadlines, election results, and recall certifications
In 2023, Ballotpedia is covering school board elections in 3,211 districts. Ballotpedia has historically covered elections in about 500 of the country’s largest districts. We’re gradually expanding the number we cover with our eye on the more than 13,000 districts with elected school boards.
Upcoming school board elections
On April 4, Oklahoma and Wisconsin will hold school board general elections. We covered Oklahoma’s (Feb. 14) and Wisconsin’s (Feb. 21) primaries in previous editions of this newsletter. We’re covering all school board elections in both Oklahoma and Wisconsin this year.
We’re also covering elections in the following states/districts on April 4:
Approximately 24,100 school board seats are up for election in 2023
Voters elect more than 97% of the country’s more than 83,000 school board members. The sheer number of elected officials, spread across approximately 13,000 districts in nearly all states, has often made it challenging to research and assemble a bird’s-eye view of all school board elections in a given year.
Let’s explore the 2023 school board election landscape—how many districts are holding elections, how many seats are on the ballot, and when those elections are happening. We’ll also walk you through Ballotpedia’s 2023 school board coverage.
This year, approximately 24,100 school board seats in 35 states are up for regular election in 2023. This is not counting any special elections to fill unexpired terms.
Those 35 states have 66,831 school board seats. In all, 36% of seats in those states are up for election in 2023.
The 24,100 seats up for election this year represent 29% of all school board seats in the country. Most school districts hold staggered elections, meaning that not all seats are up for election in any given year.
Most districts have half or one-third of seats up for election this year, and others have a quarter or one-fifth of seats up.
In those 35 states, about 9,000 districts are holding elections. That is out of a total of 10,196 school districts in those 35 states.
The approximately 9,000 school districts with regular elections this year represent 69% of all districts in the country and 88% of the total districts within the 35 states.
Regular general school board elections in 2023 will take place on at least nine different dates. Some states will have school board elections on multiple dates. In some states, school board election dates can vary by district. School districts in at least 12 states could also hold primary elections.
April 4 – five states
April 18 – one state
May 2 – two states
May 6 – one state
May 9 – two states
May 16 – two states
October 3 – one state
November 7 – 16 states
November 14 – one state
Turnout for off-cycle school board elections such as these is very low compared to elections in November of even-numbered years. This means that voters who do participate have a higher portion of control over who wins.
Ballotpedia’s 2023 school board coverage
This year, Ballotpedia is covering regular elections for approximately 8,750 school board seats in 3,211 school districts across 28 states. This is 36% of all school board elections this year. This includes comprehensive coverage in 10 states:
Colorado
Kansas
Minnesota
Ohio
Oklahoma
Pennsylvania
South Dakota
Virginia
Washington
Wisconsin
To learn more about Ballotpedia’s 2023 coverage of school board elections, click here.
Methodology note: These estimates are based on state rules governing school board election dates in each state cross-referenced with district-specific school board member data. The estimates only count regular elections to fill expired terms. Estimates in some states are based on extrapolation from a sample of district-specific data. Some estimates assume random distribution across cycles of staggered school board seats. Estimates are rounded. It does not count any special elections to fill unexpired terms. There could be exceptions to the state-level rules used for these estimates for individual districts.
Extracurricular: education news from around the web
This section contains links to recent education-related articles from around the internet. If you know of a story we should be reading, reply to this email to share it with us!
Here’s how Khan answered the question, “What areas of public policy are you personally passionate about?”
“1. Fiscal responsibility: Explore all viable options before raising property taxes/levies Ensure more direct resources to students and in the classrooms Pro-transparency 2. Expansion of services and provisions for families in need Enhance the service provision at the U-46 Welcoming Center by collaborating with local organizations Social and mental health resources and care to be available 24/7 to students 3. Ensure safe and productive learning environments where all students can achieve academic, social and emotional success at their own independent levels. Bipartisan Safer Communities Act Ensure that all board decisions prioritize students 4. Strengthen relationships with state and local governments to bridge service and programmatic gaps in an effort to improve the quality of life for students and families of U-46.”
A group of 12 Democratic state attorneys general filed a lawsuit in the United States District Court for the Eastern District of Washington against the Food and Drug Administration (FDA) on Feb. 23, 2023, arguing that the agency’s regulations on the abortion-inducing drug mifepristone violate state sovereignty by limiting the ability of states to provide the drug to residents.
The drug mifespristone was approved by the FDA in 2000 and prescribers must have a special certification requirement, according to FDA regulations. The complaint argues that the FDA’s regulatory requirements abridge state sovereignty over the health and well-being of state residents. The lawsuit seeks to “remove those restrictions and make access to this important medication more available to women across the country,” according to a statement released by Washington Attorney General Bob Ferguson (D).
The Biden administration “has emphasized the need to protect access to mifepristone,” according to a Jan. 22, 2023, statement. The U.S. District Court for the Eastern District of Washington had not set a date for oral argument as of March 3, 2023.
Texas Attorney General Ken Paxton (R) on February 7, 2023, filed a lawsuit in the U.S. District Court for the Western District of Texas challenging July 2022 guidance issued by the U.S. Department of Health and Human Services (HHS) that, according to Paxton, violates state sovereignty by seeking “to require pharmacies that receive Medicare and Medicaid payments to stock and dispense abortifacients for elective abortion purposes [and] threatens legal action against those pharmacies and pharmacists that do not.”
President Joe Biden (D) on July 8, 2022, issued an executive order that addressed the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization and argued, “Access to reproductive healthcare services is now threatened for millions of Americans, and especially for those who live in States that are banning or severely restricting abortion care.” In response to the executive order, HHS issued guidance aiming in part “to remind the roughly 60,000 retail pharmacies in the United States of … the nondiscrimination obligations of pharmacies under federal civil rights laws,” according to the guidance.
Paxton argues that HHS acted in excess of its statutory authority when it issued the guidance—legally non-binding agency documents aimed at interpreting or advising interested parties about rules or laws. The HHS guidance, according to Paxton, misinterprets federal law to effectively require pharmacies to dispense abortion-inducing medications. Paxton further argues that the HHS guidance violates state sovereignty by attempting to preempt state laws regulating abortion. “The Biden Administration knows that it has no legal authority to institute this radical abortion agenda, so now it’s trying to intimidate every pharmacy in America by threatening to withhold federal funds,” argues Paxton in the lawsuit.
HHS had not responded to the lawsuit as of February 8, 2023.
The Wisconsin State Legislature on January 19 approved a ballot measure for the April 4, 2023, election that asks voters whether what the measure refers to as able-bodied, childless adults should be required to search for work in order to receive taxpayer-funded welfare benefits.
The ballot measure, introduced by Senate Majority Leader Devin LeMahieu (R) and co-sponsored by Assembly Speaker Robin Vos (R), aims to assess public opinion on whether certain work-related activities should be required for welfare recipients. Vos and Republican lawmakers have proposed requiring work-related activities for Medicaid and state assistance programs (such requirements, when enforced, are limited under current state law to the joint federal-state unemployment insurance and food stamps programs). Governor Tony Evers (D) vetoed a package of welfare and workforce-related bills last session, including a proposal that would have required the Wisconsin Department of Health Services (DHS) to enforce the existing work requirement for food stamps recipients, which the department had waived through September 2022 due to the coronavirus (COVID-19) pandemic.
“We are confident the public supports this,” state Senator Chris Kapenga (R) told Fox News Digital. “We think this will put public pressure on the governor.”
Evers argued that the ballot measure wouldn’t prove useful to lawmakers, according to the Associated Press. “It’s advising something that already exists,” he said, referencing the state’s existing work requirements. “So I think [it’s] frankly ridiculous.”
The Wisconsin State Senate voted 22-10 to approve the measure and the Wisconsin State Assembly followed suit by a 62-35 vote. A lawsuit challenging whether the measure met the January 25 filing deadline is pending in Dade County Circuit Court.
Texas and Oklahoma filed suit in the U.S. District Court for the Northern District of Texas on January 18, 2023, arguing that an Obama-era federal regulation issued by the U.S. Department of Health and Human Services (HHS) granting the World Health Organization (WHO) authority to define what constitutes a public health emergency infringes on national and state sovereignty.
Fifteen states in July 2022 filed a petition asking HHS to repeal the rule. The Biden administration denied the petition in October 2022. Texas Attorney General Ken Paxton (R), joined by Oklahoma Attorney General Gentner Drummond (R), filed suit, arguing in part that the HHS rule infringes on U.S. and state sovereignty by unlawfully delegating power to a foreign entity. Paxton argued in a press release, “Absolutely no foreign power should have the ability to exert police powers over Texas or any other state, and that is especially true for a foreign entity with as troubled of a history as the WHO.”
HHS had not responded to the lawsuit as of January 25, 2023. The agency did not respond to the July 2022 petition but stated at the time that it “will continue to make its own independent decisions” and asserted that it is “important to include references to WHO in the definition of ‘public health emergency’ to inform the public of the circumstances that HHS/CDC may consider.”
The date for oral argument in the U.S. District Court for the Northern District of Texas had not been set as of January 25, 2023.
Judge John J. Tuchi of the U.S. District Court for the District of Arizona on January 6, 2023, rejected a challenge from a coalition of states and held that President Joe Biden (D) did not exceed his authority when he issued an executive order directing the U.S. Department of Labor (DOL) to promulgate regulations increasing in the minimum wage for federal contractors.
President Biden issued Executive Order (EO) 14026 in April 2021 requiring the DOL to issue regulations increasing the minimum wage for federal contractors to $15 an hour. Five states (Arizona, Indiana, Idaho, Nebraska, and South Carolina) in February 2022 challenged the executive order in the U.S. District Court for the District of Arizona, arguing in part that the executive order violated the clear notice requirement of the U.S. Constitution’s spending clause because states were not fully aware of the new contracting conditions under the order; that the order exceeded the president’s authority under the Federal Property and Administrative Services Act of 1949 (FPASA); and that the FPASA unconstitutionally delegates congressional authority to the president in violation of the nondelegation doctrine.
Judge Tuchi ruled in part that the executive order, in his view, did not violate the U.S. Constitution’s spending clause because the clause is not applicable to federal contracts; that the order did not exceed the president’s statutory authority under the FPASA because the order speaks to the FPASA’s federal contracting goals; and that the FPASA does not violate the nondelegation doctrine because it provides the president with an intelligible principle to guide executive action.
“As this Court and others have recognized, the FPASA’s grant of presidential authority is broad, but it is not unqualified,” Judge Tuchi wrote in the opinion. “The Court finds there is a sufficiently close nexus between EO 14026 and the Final Rule and the FPASA’s goals of economy and efficiency in federal contracting. Here, the president has rationally determined that increasing the minimum wages of contractors’ employees will lead to improvements in their productivity and the quality of their work, and thereby benefit the government’s contracting operation.”
The states can appeal the case to the United States Court of Appeals for the Ninth Circuit, but no appeal had been filed as of January 12, 2023.
Utah Governor Spencer Cox (R) and 24 governors from other states, on December 19, 2022, signed a letter asking President Joe Biden (D) to end the COVID-19 federal public health emergency (PHE) in April 2023.
The U.S. Department of Health and Human Services (HHS) declared the COVID-19 federal PHE on January 27, 2020. The PHE must be renewed every 90 days to stay in effect. It was most recently renewed on October 13, 2022, and will expire on January 11, 2023, if it is not renewed again. States, as of January 4, 2023, had not received notice that HHS plans to lift the PHE, indicating that the agency plans to renew the order, according to Georgetown University Health Policy Institute.
Governor Cox’s letter asks President Biden to allow the federal PHE to expire in April 2023 after its January 2023 renewal to “provide states with much needed certainty well in advance of its expiration.” Cox argued that the federal PHE was negatively affecting the states by requiring them to cover expanded populations under Medicaid: “The PHE is negatively affecting states, primarily by artificially growing our population covered under Medicaid (both traditional and expanded populations), regardless of whether individuals continue to be eligible under the program.” During the federal PHE states cannot remove people from Medicare benefits who have changed status and are now ineligible.
President Biden had not responded to Gov. Cox’s letter as of January 3, 2023.
