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Ed. Department Releases Draft ESSA Regulations on Testing, Spending Issues

By Alyson Klein & Andrew Ujifusa — April 01, 2016 5 min read
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Negotiators trying to craft rules on testing and spending for the Every Student Succeeds Act now have a starting point for discussion.

The U.S. Department of Education Friday released draft regulations on the two areas of the law that a panel of educators, advocates, and experts have been discussing: testing, and a spending portion of the law called “supplement-not-supplant” (which governs how local and state dollars interact with federal Title I spending for students in poverty).

You can check out the draft regulations on supplement-not-supplant here and the draft regulations on assessment here. (Want an issue-by-issue breakdown on assessment? Click here for the proposal on computer-adaptive testing, here for advanced math tests for 8th graders, here for the local high school test, here for assessments for students in special education, here for how testing for students with severe cognitive disabilities, here for tests for English-learners, and here for tests for English-language proficiency.

Not interested in spending your whole weekend reading regulations? Just want a few quick takeaways on each topic? We’ve got some bulleted information below on what jumped out to us when we took a quick look at the draft regs—and we’ll update this post when we have more analysis and reaction to share.

Takeaways on the draft regulations for assessment:

  • Computer-Adaptive tests: Under the regulations, computer-adaptive tests used for accountability would have to be able to determine whether a student is on grade level. The department released similar language ahead of the negotiations.
  • Eighth grade math tests: Under the proposed regulations, students who take a higher-level math test for accountability purposes (say, an Algebra test, usually given to high schoolers) must be given access to accommodations if they are English language learners, or students in special education. What’s more, the state has to show that all students have the opportunity to be prepared for and take advanced math in middle school. It’s unclear how that will fly with negotiators. Some, including Tony Evers, the state superintendent in Wisconsin, worried that requiring states to make sure everyone has access to advanced math might be too big a burden.
  • Local high school assessment: ESSA allows districts to substitute a “nationally recognized test” for accountability purposes at the local level, instead of the state exam, but the law doesn’t say what a nationally recognized test is, exactly. The draft regs define it as any test used for college entrance (i.e. the SAT or ACT) or any test that’s been designed for the purpose of college placement. That would seem to allow PARCC and Smarter Balanced tests, federally-funded tests aligned to the Common Core State Standards, to be part of the mix. States would also have to ensure appropriate accommodations for students in special education and English-language learners, something states using the ACT and SAT for accountability have struggled with. (Negotiators really stressed this issue during discussions late last month.)
  • Tests for Students with Disabilities: Under ESSA, states can give alternative tests 1 percent of all students, with the most severe cognitive disabilities. That’s roughly 10 percent of students in special education. It’s not clear how this will work on a district-by-district basis, so the proposed regs outline circumstances where a district might go over the cap. (For instance, if health programs and schools in the area have noticed a lot of kids with severe cognitive disabilities.) ESSA also allows states to seek a waiver from that requirement, and proposed regs make it clear what steps states need to go through to get that waiver. (A state can’t, for example, start really ramping up the number of alternative tests it gives, and expect to get a waiver unless its population has changed significantly.) What’s more, the proposed regulations open the door for a subcommittee of negotiators to define “severe cognitive disabilities"—something that generated controversy among negotiators.
  • Tests for English-Language Learners: The proposed regulations say states need to come up with a common test to measure English-language proficiency. And states need to make it clear that they must do more to spell out how they are developing tests for students in their native languages.

Takeaways on the draft regulations for supplement-not-supplant:

  • The proposed regulations state that districts can use the methodology of their choosing to show how state and local funds are allocated, provided that the methodology "[r]esults in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools,” according to the department’s summary of the draft.
  • This methodology chosen by the district must also allocate “sufficient State and local funding to each Title I school to provide a basic educational program (as defined under State or local law) and services required by law for students with disabilities and English-learners.”
  • For resources or costs paid for at the district level, instead of the school level, the proposed regulation “would require that a district ensure that each Title I school receives a share of those services that is equal to or greater than the share it would otherwise receive if it were not a Title I school.”
  • Districts will no longer have to show that an individual cost or service associated with Title I spending is supplemental.
  • Districts will have more time than they may have initially thought to switch to a new method for calculating state and local funds for complying with supplement-not-supplant. Instead of being required to begin using the new methodology for showing the allocation of state and local money by December 2017, districts will also have the option of showing how they will switch to the new methodology by the 2019-20 school year at the latest.

So what happens now? The committee members will review these regulations and meet back April 6 through April 8 to accept, tweak, or reject what they want. If they still haven’t figured things out, they have the option to meet again at the end of the month. And if they aren’t able to ever reach agreement, the department will write its regulations through the typical, non-negotiated process. If the department has to write its own rules, Congress will have about two weeks to review those regs before they take effect.

Advocates, educators, and true blue wonks: See something in the draft regs we didn’t highlight? Got a reaction to something here? Email us and let us know at and, or tweet at us @politicsk12.