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Published in Print: March 16, 2016, as ESSA Rulemaking: A Guide to Negotiations

ESSA Rulemaking: A Guide to Negotiations

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Beginning on March 21, the U.S. Department of Education will convene a group of educators, advocates, and experts representing a range of perspectives to negotiate rules for the Every Student Succeeds Act, the newest version of the Elementary and Secondary Education Act.

The 24-member panel will focus on two areas of the law, known as ESSA:

  • Assessment, providing clarity in the parts of the law that deal with testing, including the types of tests that can be used and what’s required for certain groups of students.
  • "Supplement-not-supplant" requirements, which deal with how federal dollars are supposed to be used relative to state and local dollars.


ESSA keeps in place the No Child Left Behind Act’s testing schedule, calling for states to assess students in grades 3-8 and once in high school. But it adds some new twists. And some of the most interesting testing issues in ESSA aren’t on the table. Among them: the brand-new “innovative assessment” pilot, in which select states can try out new kinds of tests in a handful of districts, as New Hampshire is doing now, with the goal of eventually going statewide. If the department decides to regulate the pilot program, it will do so through the usual rulemaking process.

Nationally Recognized Tests for High Schools
Department officials will need to decide what constitutes a “nationally recognized test.” (Is it just the ACT or the SAT? Could other tests—maybe even a new test—count?) They’ll also have to make sure that the tests can be easily compared with a state’s assessment so that students in different districts within the same state aren’t held to different standards. And they’ll have to make sure students with disabilities and English-learners are given appropriate accommodations, something both the College Board and ACT Inc. have struggled to do.

What Is 'Negotiated Rulemaking'?

Federal laws sometimes require agencies to use an up-close-and-in-person process to write regulations, called negotiated rulemaking. Under ESSA, the Education Department must use this process in three areas of the law: supplement-not-supplant requirements, assessment, and standards.

The department has elected not to proceed with regulations on standards for now. But earlier this month, the Obama administration put out some discussion papers—and even a few draft regulations—on assessment and supplement-not-supplant. The committee will try to reach agreement on these. If negotiated rulemaking fails, as it often does, the department will have to go through the usual process for writing ESSA rules in these two areas. That would involve putting out draft rules, getting comments on them, and issuing a final rule.

Other areas of ESSA—including accountability, which is arguably the issue at the heart of the law—don’t need to go through negotiated rulemaking. The department can proceed right to the usual rulemaking process for the area of accountability.

Computer-Adaptive Testing
These types of tests can be faster and more efficient, and they also offer different questions to different students, depending on their achievement levels. The Education Department wants to know if ESSA makes it clear that states will still need to report whether students taking these tests are on grade level. If tests focus just on whether students are making incremental progress, students could graduate from high school without being prepared for college or a job. This is one of the areas where the department offered proposed language, and it’s aimed at providing clarity on that issue. Marianne Perie, the director of the Center for Educational Testing and Evaluation at the University of Kansas, for one, is hoping that computer-adaptive tests will be able to pinpoint not just whether or not students are on grade level (for accountability purposes), but also where exactly they are if they are not on grade level (for instructional purposes).

8th Grade Math Tests
ESSA allows students who take advanced math in 8th grade—say, Algebra 1 or geometry—to use a test in that subject for accountability purposes, instead of the state assessment everyone else takes. In high school, those students must then take a test that corresponds to whatever level of math they are in—so they might take the Algebra 2 test while most other students take Algebra 1. This is something the department had already allowed, through a waiver, before ESSA passed. The department wants to make sure that many more students have access to those advanced classes, and that the alternative, harder math tests are of high quality.

Tests for Students With Disabilities
The new law requires that all assessments, to the extent possible, use principles of universal design for learning (UDL) to support all students’ learning needs. The department also addresses ESSA’s requirement that accommodations be provided to students with disabilities as identified under the Individuals with Disabilities in Education Act or other laws. The Education Department asks negotiators to consider, among other issues, whether regulations should define “students with disabilities in a way that encompasses students who receive accommodations under the IDEA as well as those receiving accommodations through other acts.”

Alternative Tests for Students With Severe Cognitive Disabilities
Under ESSA, no more than 1 percent of students in a state may take an alternative test for students with severe cognitive disabilities in any single subject. But it’s unclear how that restriction will work on a district-by-district basis. Among other issues, the department presents negotiators with the question of whether the regulations should define “students with the most significant cognitive disabilities.”

Academic Assessments for English-Language Learners
For the first time in the history of the federal law, ESSA calls for English-language proficiency to be part of the accountability mix for the whole school. Under ESSA, states must try to get a picture of how much newly arrived ELLs know by offering them tests in their native language. That doesn’t mean a state has to have a test available in every language, but it must have native-language assessments on hand in any language that a “significant” number of students speak, and make “every effort” to develop those tests if they don’t exist. The department wants negotiators to consider fleshing out those general terms.


In a key move affecting federal funding for schools, negotiators developing proposed regulations for the Every Student Succeeds Act will examine how to devise rules that make clear exactly how federal dollars for low-income students must supplement, not supplant, state and local school funding.

Negotiated Rulemaking Committee Members and Constituencies

State administrators and state boards of education:
Tony Evers, Wisconsin Department of Public Instruction
Marcus Cheeks, Mississippi Department of Education

Local administrators and local boards of education:
Alvin Wilbanks, Gwinnett County Public Schools, Ga.
Derrick Chau, Los Angeles Unified School District
Thomas Ahart, Des Moines Public Schools, Iowa*

Tribal leadership:
Aaron Payment, Sault Ste. Marie Tribe, Mich.
Leslie Harper, Leech Lake Band of Ojibwe, Minn.*

Parents and students, including historically underserved students:
Lisa Mack, Ohio
Rita Pin Ahrens, District of Columbia

Audrey Jackson, Boston Public Schools
Ryan Ruelas, Anaheim City School District, Calif.
Mary Cathryn Ricker, St. Paul Public Schools/American Federation of Teachers, Minn.*

Lara Evangelista, New York City Department of Education
Aqueelha James, District of Columbia Public Schools*

Other school leaders, including charter school leaders:
Eric Parker, Montgomery Public Schools, Ala.
Richard Pohlman, Thurgood Marshall Academy, District of Columbia*

Lynn Goss, School District of the Menomonie Area, Wis.
Regina Goings, Clark County School District, Nevada*

Civil rights community:
Delia Pompa, Migration Policy Institute
Ron Hager, National Disability Rights Network
Liz King, The Leadership Conference on Civil and Human Rights
Janel George, NAACP Legal Defense and Educational Fund*

Business community:
Kerri Briggs, Exxon Mobil
Kenneth Bowen, Office Depot*

*Non-voting member

The “supplement-not-supplant” requirement has been a part of the Elementary and Secondary Education Act since 1970. It is designed to prevent states and districts from cutting their education budgets and then using federal money earmarked for low-income students to make up the difference.

But ESSA now gives districts additional breathing room to meet the supplement-not-supplant mandate, in two ways.

First, the latest update to the federal K-12 law ends the previous requirement that districts itemize the cost of various programs funded by Title I money, which is federal funding intended for low-income students. This previous itemization requirement had been designed to show exactly how the services and programs Title I money was funding were truly supplemental services.

In addition, districts will now be able to use a single method to show that a Title I school is receiving the same state and local funding it would have if no Title I dollars were available. Previously, different schools were subject to different tests for determining this.

Showing Their Work
As part of the negotiated rulemaking process, the Education Department has asked negotiators to tackle several questions as they draft regulations for supplement not supplant. Among them: How can districts show their methodology for allocating state and local funds to satisfy supplement not supplant? And how flexible should regulations be to accommodate districts with unusual characteristics, such as those with “particularly small schools”?

Under ESSA, the Education Department is prohibited from telling districts which methodology they must use for ensuring the continuity of state and local dollars separate from Title I money. However, districts must use their new method for demonstrating compliance with supplement-not-supplant requirements starting in December 2017.

In the list of questions presented to the negotiators for discussion, the department asked them to consider what it would mean for districts to demonstrate the continuity of state and local funds under supplement-not-supplant. Negotiators will also be tasked with considering how the methodology requirement will apply to districts that use school-based budgeting or weighted student-funding systems, and how flexible the regulations should be for districts that have particularly small schools, for example.

'Unfair Shortfalls'
In its background paper intended to guide negotiators, the department references “unfair shortfalls in state and local funding” in the context of supplement-not-supplant requirements. That phrase could highlight the department’s priorities in developing regulations.

“The word ‘unfair’ shows that they might be looking at this through an equity lens,” said Sheara Krvaric, an attorney with the Federal Education Group, a consulting firm that works with states and districts.

The department also stated in the background paper that most students in Title I schools (those with relatively large shares of students from low-income households) are in districts where those schools get fewer state and local dollars per pupil than wealthier, non-Title I schools.

Under the No Child Left Behind Act, districts had to show the federal department and external auditors that Title I money was not flowing to programs and services required under state law; that state and local money did not pay for programs and services the previous school year; and that the same programs and services were not provided to other students with non-Title I dollars.

Because auditors and others have used those three tests for a long time, it could be helpful for the Education Department, in regulations or elsewhere, to make it clear these three tests no longer have to be used, Krvaric said.

Vol. 35, Issue 24, Pages 14-15

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