Everyone from governors and state lawmakers down to advocates and parents has an opinion on how the U.S. Department of Education should go about turning the sometimes-murky verbiage of theinto actual federal regulations—and more than 350 of them laid those opinions out during a quick-turnaround written comment period.
An Education Week review of selected comments found many respondents offering detailed—and often contradictory—advice when it comes to the law’s provisions on accountability, test participation, assessment, teacher qualifications, and more.
Some comments filed over the several-week period ending Jan. 21 were broad. For example, the California Federation of Teachers, the National Governors’ Association, and others asked for a light federal touch in the still-to-be-written regulations.
Others dove deep into the policy weeds. For instance, Disability Rights Arkansas, an advocacy group, asked the department to make sure states use research to back up their choice of ‘n-size'—the term for the minimum number of students a school must have from a particular subgroup in order for that group to be considered for accountability purposes.
The U.S. Department of Education got more than 350 comments on how it should regulate under the Every Student Succeeds Act. Some highlights:
“Regulation, guidance, and technical assistance must ensure that low-income communities, communities of color, the disability community, immigrant communities, and tribes are included in decisionmaking.”
—The Leadership Conference on Civil and Human Rights, along with about three dozen civil rights, disability, and education redesign organizations
“Parents, communities, and California educators are not interested in having highly prescriptive rules and mandates around pre-K-12 education from the federal government. This is especially true when it comes to requiring the use of standardized tests in making high-stakes decisions in both school and educator accountability.”
—California Federation of Teachers
“Recognizing each state’s readiness to implement ESSA varies, the federal government should allow a flexible timeline to allow for early implementation or provide additional time for states to make necessary changes to state policy and improvements to state infrastructure.”
—National Governors Association
“With regard to state accountability systems, the department should seek input from states and local school districts and provide explicit nonbinding guidance and best practices that can help states and school districts identify, set, and use a variety of student success indicators.”
—National School Boards Association
“CEOs believe that states should continue to ensure student tests and graduation rates are the predominant factors in determining whether states and districts are meeting the state-defined goals for differentiating among all public schools in the state.”
“We recommend that [the Education Department] clearly define terms regarding statewide accountability to ensure that schools and states appropriately measure indicators of student achievement to drive school improvement.”
"[E]nsure that state and local plans serve all groups of kids. Past experience is full of examples of state and local decisionmakers deprioritizing or downright undermining the needs and potential of low-income students, students of color, English-learners, and students with disabilities.”
—The Education Trust
“State accountability systems must be comprehensive, robust, and aligned to challenging and high standards, must provide publicly accessible and transparent information about school and district performance, and must identify our highest-needs schools and district.”
—Connecticut Coalition for Achievement Now (CONNCAN)
SOURCE: U.S. Department of Education
Still others dealt with practical questions. The Mississippi Department of Education, for example, asked for a list of which federal programs will continue under ESSA, so that the state can figure out its own staffing.
In general, educators and the organizations that advocate for them favor a regulatory philosophy that puts a premium on local decisionmaking, while civil rights organizations and advocates for particular groups of students are pressing for a more stringent approach to accountability to maintain equity.
It’s clear that ESSA gives states much greater control over which low-performing schools to identify for improvement than they had under its predecessor, the No Child Left Behind Act.
But there are questions about how far that new leeway goes. For instance, the law requires states to incorporate into their school-ratings systems both academic factors—such as test scores and graduation rates—and factors that get at school quality, such as teacher engagement and access to advanced coursework. And academic factors need to have “much greater” weight as a group than non-academic factors.
It’s unclear though, if the department will decide to provide more specifics on what “much greater” means.
Some commenters hope for federal guidance on the issue, including Mitchell D. Chester, the commissioner of education in Massachusetts.
Without any sort of rules of the road, the interpretation of “much greater weight” is likely to vary widely, he reasoned—one state might think it means that academic factors need to account for 60 percent of a school’s score, while another might decide it means 95 percent.
But AASA, the School Superintendents Association, wants federal officials to give states as much leeway as possible in this area.
One issue that came up over and over: testing participation rates.
ESSA keeps in place the NCLB law’s requirement that schools test 95 percent of students, both for the whole school and for subgroups of students.
Under the NCLB law, schools that fell short of that threshold were considered automatic failures. Under ESSA, however, states get to decide what happens to those schools.
The New York State Boards of Education, like other groups, finds that confusing.
“This internal inconsistency only encourages parental refusal and places school districts throughout the country in an untenable position,” the boards wrote.
The NYSBE urged the department to make it crystal clear that states and districts can still pass laws that allow parents to opt out without penalties—and that school districts won’t be punished if parents choose to exempt their kids from testing.
But plenty of other commenters were on the other side of the opt-out argument.
For instance, Chiefs for Change, a coalition of state and district superintendents that in the past has supported policies such as rigorous standards and online learning, urged the department not to allow for any “wiggle room” on testing participation rates.
The Education Department “must remember that one size does not fit all and there is not one ‘best’ system or model that will serve all students and all schools,” AASA wrote.
ESSA keeps the NCLB law’s testing schedule—requiring states to test students in grades 3 through 8 and once in high school.
But it allows for some new flexibility. For instance, districts can let high schools use a nationally recognized test—such as the ACT or SAT—for accountability purposes.
And ESSA creates an “innovative local assessment” pilot project, allowing up to seven states or consortia of states to try out new kinds of tests, such as performance assessments, with the goal of eventually taking them statewide.
The Leadership Conference on Civil and Human Rights, an advocacy organization, was joined by three dozen civil rights and disability groups in asking the department to tread carefully in writing rules for these local tests.
Any local tests, they wrote, should “meet the highest standards of validity, reliability, and comparability” and ensure that English-language learners and students in special education get the accommodations they need.
The testing flexibility “should not be an excuse to provide vulnerable students with lower quality assessments or obscure disparities in student outcomes,” the organizations wrote.
Meanwhile, Jobs for the Future, the Alliance for Excellent Education, and the Learning Policy Institute want the department to encourage states to adopt assessments that incorporate not just math and reading, but “higher-order thinking skills,” like complex problem-solving and collaboration.
And those organizations—all of which work on college-readiness—want more information on how states could use portfolios or projects for accountability purposes, without running afoul of the law’s requirement that all students in the same grade take the same test.
The ACT, on the other hand, urged the department to use caution in approving state plans to use multiple interim assessments for accountability purposes, instead of a single, more comprehensive test. Interim tests tend to be designed differently and given under different circumstances than the single summative tests states are used to, the ACT argued.
AASA’s plea for local leeway extends to another provision in ESSA, which calls for states to identify schools where subgroups of students—such as English-language learners and students in special education—are “consistently underperforming.”
Under ESSA, such schools will need to come up with a plan to combat their problems, and their progress will be monitored by the district. It’s not clear from the law, however, what “consistently underperforming” means exactly.
AASA wants to leave that definition entirely up to states, so that they can come up with parameters that fit the local context.
But groups including the Parent Teacher Association want more guidance on what constitutes consistent underperformance.
For instance, the League of United Latin American Citizens suggested the department direct states to include both the longevity of the underperformance and the severity in identifying schools to focus on.
Commenters seized on other technical aspects of accountability. For instance, the Education Trust, which advocates for poor and minority students, wants the department to make it clear that states can’t combine different groups of students for accountability purposes through “super-subgroups” as they did under the Obama administration’s waivers from the NCLB law.
But the Foundation for Excellence in Education, an education-redesign organization started by former Florida Gov. Jeb Bush, wants states to be able to focus on the bottom 25 percent of students in each school, as some, including Mississippi, did under NCLB waivers.
ESSA gives states a longer leash than they had under NCLB when it comes to teacher quality and effectiveness. But it retains the requirement that states ensure that low-performing schools have access to their fair share of effective teachers.
TNTP, a teacher training advocacy organization, said that provision opens the door for the department to require states to develop evaluation systems that “meaningfully differentiate” when it comes to educator effectiveness.
But some educators are clamoring for as much flexibility on teacher qualifications as possible. For instance, Alaska’s Kenai Peninsula Borough School District said isolated schools need as much running room as they can get when it comes to teacher qualifications.
The Department is reviewing the ESSA comments and will be tackling many of the issues raised in coming weeks and months.
A version of this article appeared in the February 10, 2016 edition of Education Week as Views Clash on K-12 Law Rulemaking