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Published in Print: August 5, 2015, as Collision Alert: House, Senate ESEA Rewrites

Red Flags on the Road to ESEA Rewrite

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"The pundits told us it would never happen—that Republicans and Democrats will never agree on a way to replace No Child Left Behind."

So said Senate Majority Leader Mitch McConnell, R-Ky., just hours before the U.S. Senate did just that—passing its own version of an Elementary and Secondary Education Act rewrite with overwhelming bipartisan support July 16.

But sending a final bill to President Barack Obama's desk—at least one that he's willing to sign—will be an entirely different challenge.

Across the Capitol, the House of Representatives narrowly passed its own, Republican-backed version of an NCLB reauthorization a week earlier, without the support of a single Democrat.

The dueling bills, which contain some stark policy differences, now move to a conference process, in which the authors of both measures and other lawmakers from both chambers and parties will try to cobble together a proposal that appeals to everyone.

To do so, they'll have to overcome some serious divergences in revising the law, whose current version is the No Child Left Behind Act.

Chief among them: how to beef up accountability in a way that assures Democrats and civil rights groups that the result will include stronger federal guardrails for the most disadvantaged students, while at the same time ensuring the small federal footprint that Republicans are adamant about.

The conferees will also debate whether to maintain two provisions in the House bill that are not in the Senate bill. One would allow Title I dollars for low-income children to follow them to the schools of their choice—known as "portability." Another would eliminate language in the current law that lets the federal government punish schools and states that have lots of students opting out of state tests.

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"This is a complicated piece of legislation," said Sen. Lamar Alexander, R-Tenn., a co-author of the Senate bill. "There are crocodiles in every corner."

The process is set to begin in earnest once lawmakers return to Washington in September from their five-week summer break with the expressed goal of delivering a bill to the president by fall's end. The law has been due for reauthorization since 2007.

Accountability Issues

When the Senate passed its NCLB revision 81-17, Secretary of Education Arne Duncan applauded the bipartisan effort, but was quick to argue that the bill does not include enough protections for the most disadvantaged students.

"This bill still falls short of truly giving every child a fair shot at success by failing to ensure that parents and children can count on local leaders to take action when students are struggling to learn," Mr. Duncan said.

"We need to identify which schools work and which ones don't, so we can guarantee that every child will have the education they need," he said. "We cannot tolerate continued indifference to the lowest-performing schools, achievement gaps that let some students fall behind, or high schools where huge numbers of students never make it to graduation."

Mr. Duncan's sentiments ran parallel with those of civil rights groups that slammed the Senate bill and contended that it doesn't go nearly far enough when it comes to accountability for low-income students and racial minorities.

During the two-week floor debate, the Senate rejected an amendment from Sen. Chris Murphy, D-Conn., that would have required states to establish measurable state-designed goals for all students and separately for each subgroup of students, and to intervene if they didn't meet those goals. It also would have required states to intervene in their lowest-performing 5 percent of schools and those that graduated less than 67 percent of their students.

Democrats threw their weight behind the amendment, garnering support from 42 of their members. That was more than they had expected, given that the National Education Association, a traditional Democratic ally, had been lobbying senators to oppose the proposal.

Though the amendment failed, the tally in favor yielded enough bodies to show that, along with the dozen or so Republicans who are expected to vote against the bill no matter what, the Democrats would be able to block final passage of a conferenced bill should it not include stronger accountability language.

In an interview after the passage of the bill, Sen. Alexander, who chairs the Senate education committee, acknowledged that discrepancies over accountability exist and reiterated his commitment to getting a bill to President Obama "that he's comfortable signing."

But when asked about the prospects of increasing safeguards during the conference process, he said: "I'll need to be convinced. My goal and the goal of the bill is to keep the important measures of accountability—keep the report cards, keep the tests—so we'll know how the children are doing, but turn over what to do about the tests and the accountability for getting a result to the states and local school boards."

"I think that's real accountability," Sen. Alexander continued. "The president would like to have more federal involvement in that accountability process. I understand that. We'll just have to discuss that."

Whatever compromise senators may make on accountability, though, would have to pass muster in the House, where a solid block of Republicans and Democrats would need to support the bill for it to pass. The House version passed by just 218-213. Accepting a proposal with an increased federal role could prove difficult for House Speaker John Boehner, R-Ohio, who has promised not to allow a vote on anything that might not garner support from a majority of his caucus.

Title I and School Choice

Just as Democrats will push during the conference process for greater accountability and safeguards for disadvantaged students, Republicans will dig in their heels to support provisions that would hand even more control to states and local districts and give parents and students even more say over their education.

They're likely to lobby the hardest for two provisions in particular: the one concerning Title I portability, and the one focusing on opting out of standardized tests.

While both are included in the House bill, Republicans may have a tough time getting such language into a final brokered ESEA overhaul.

For starters, the Senate considered but ultimately rejected three different amendments that would have added to the underlying bill similar portability and opt-out provisions.

An amendment from Sen. Tim Scott, R-S.C., would have allowed Title I aid to follow students to the schools of their choice. Another amendment, from Sen. Alexander, would have given low-income students $2,100 vouchers to use at the public or private schools of their choice. And a proposal from Sen. Steve Daines, R-Mont., would have ensured the right of students to opt out of tests.

Notably, the White House, which had already threatened to veto the House bill over a variety of issues, promised to veto any legislation that includes Title I portability language.

After the Senate passed its ESEA reauthorization bill, Mr. Alexander's co-author, Sen. Patty Murray, D-Wash., sought to fend off school choice and opt-out language ahead of the conference. She noted that such provisions played a major role in the House bill's one-sided support.

"Their bill doesn't represent one end and ours represents another, where we have to meet in the middle," Sen. Murray said. "Their bill really represents an unacceptable partisan approach and path, and ours represents a carefully negotiated compromise with just a few important steps to go."

Finding Common Ground

There are also some important similarities between the two measures.

Both would eliminate the current accountability system, with its measure known as adequate yearly progress, and allow states to create their own systems instead. They would also both maintain the current annual federal testing schedule and the requirement that states disaggregate student-achievement data, including by such student groups as race and English-language-learner status.

Under both proposals, states wouldn't be forced to evaluate their teachers.

And both rewrites include strong language that would prohibit the U.S. secretary of education from coercing or requiring or offering incentives to states to adopt any specific set of standards, including the Common Core State Standards.

"A president named Reagan used to say: If you got 80 percent of what you wanted, you might take it and fight for the rest on another day," Sen. Alexander said before the final vote on the Senate bill. "I am recommending we follow this advice."

Impact on Waivers

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Ultimately, the best argument for supporting a conferenced bill may not be what the proposal itself says, but the immediate impact its passage would have in allowing states to relinquish their Obama administration-granted waivers from parts of the nearly 14-year-old NCLB law.

For Republicans, that would equate to kicking the federal government out of schools. And for Democrats, the outcome would provide a stable federal law for all 50 states and rule out the possibility that a Republican administration would use the waivers to push its own education policy priorities.

"There is a lot of work that lies ahead," Rep. John Kline, R-Minn, the author of the House plan and the chairman of his chamber's education committee, said in a statement about moving to the conference process. "But I am confident we will find common ground and send a bill to the president's desk that helps ensure every child in every school receives an excellent education."

Vol. 34, Issue 37, Pages 1,21

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