After more than a decade, Congress appears to be on the verge of leaving the almost universally unpopular No Child Left Behind Act ... well, behind.
Lawmakersthat would scale back the federal role under the Elementary and Secondary Education Act—the 14-year-old NCLB law is the latest iteration—for the first time since the early 1980s.
The compromise, the Every Student Succeeds Act, sailed through a conference committee this month, with just one dissenting vote, from Sen. Rand Paul, R-Ky., who is running for president. It’s expected to be on the floor of the U.S. House of Representatives next week. The measure’s prospects in the Senate are rosy, but it could run into trouble with House conservatives.
The bipartisan agreement seeks to give states miles of new running room on accountability, school turnarounds, teacher evaluation, and more, while maintaining No Child Left Behind’s signature transparency provisions, such as annual testing in reading and math in grades 3-8 and once in high school.
And it calls for states to incorporate new measures into their accountability systems that get at students’ opportunity to learn and postsecondary readiness. States could choose to include school climate, student engagement, and teacher engagement, for example.
“This agreement, in my opinion, is the most significant step towards local control in 25 years,” Sen. Lamar Alexander, the Tennessee Republican who chairs the Senate education committee, told House and Senate conferees.
The Senate panel’s top Democrat, Sen. Patty Murray of Washington, said that the framework includes “strong federal guardrails ... so that students don’t get left behind.”
Alexander and Murray: Reps. John Kline, R-Minn., who chairs that chamber’s education committee, and Bobby Scott, D-Va., its ranking member.
For their part, state education chiefs are excited Congress is poised to move beyond the NCLB era.
“There’s been a lot of emphasis on math and reading, and it’s really limited our curriculum,” said Stephen L. Pruitt, the newly appointed Kentucky state chief, a former science teacher. “Math and reading drove our accountability system. We want to educate all the areas of the child, not just one part.”
Contours of a Compromise
The ESEA deal borrows some provisions from both a bipartisan Senate measure that was approved overwhelmingly over the summer and a GOP-backed House bill that just barely made it over the finish line in July.
It also includes some protections for the bottom 5 percent of schools in a state—an idea borrowed from No Child Left Behind waivers granted by the U.S. Department of Education. It also calls for states to focus on schools with high dropout rates, and those where poor and minority students, or students in special education and those just learning English, are struggling.
But states would be handed the car keys when it comes to almost everything else.
They would be given broad discretion over how to incorporate tests into their accountability systems, how to intervene in low-performing schools, and how to help schools where subgroups of students are struggling.
Sandy Kress, who as an adviser in President George W. Bush’s administration helped write the NCLB law, got heartburn when he looked at the compromise on accountability in the pending ESEA reauthorization. He’s worried about what it would mean for minority, and low-income students.
“States are being given license to create systems that are significantly not based on student learning. That’s a problem,” he said. “This pretty much eliminates any kind of expectation for closing the achievement gap.”
But some state schools chiefs say there’s no way they are backing off from their efforts to educate all students. After all, they argue, that didn’t happen under the NCLB waivers.
“We have no intention of backing down from our accountability system or watering down accountability,” said Carey Wright, Mississippi state chief.
It’s unclear just how the bill’s accountability language, which was a priority for Democrats in negotiations, would square with other parts of the deal.
One section, for example, would strip the U.S. secretary of education of authority over such matters as testing, school turnarounds, evaluations, and standards. The secretarial smack-down is largely seen as a rebuke to Arne Duncan, who has flexed his executive muscle more than any other U.S. education secretary in history.
That language would likely make it harder for the Education Department to vigorously enforce many of the accountability provisions in the measure and could hamstring regulatory efforts.
And at least one education advocate is predicting lawsuits and regulatory turmoil if the ESEA bill makes it over the finish line.
“Based on what I’ve seen, for the next [education] secretary, interpreting the new law will be like looking at a Rorschach with one eye closed and with both hands tied behind their back,” Charles Barone, the policy director for Democrats for Education Reform, said of preliminary drafts of the legislation.
Barone served as an aide to former Rep. George Miller, D-Calif., who was the top Democrat on the House education committee.
Parts of the deal, which hasn’t been introduced formally into legislation, are open to interpretation. For instance, Democratic and Republican aides claim there may ultimately be varying degrees of discretion for the secretary to determine the weight of tests and other indicators in state accountability systems.
The regulatory process may prove pivotal in settling that and a host of other issues.
In fact, it won’t be a surprise if some of the big winners in this ESEA reauthorization are education lawyers, said Chad Aldeman, an associate partner at the consulting group Bellwether Education Partners, who served in the Education Department under President Barack Obama.
“The fact that there is that question [about the weight states can give to tests] does not suggest that it is strong policy,” Aldeman said. “You wouldn’t want to draft a bill where there is very foggy uncertainty about what that means and be put into immediate legal limbo,” he said. “What can the secretary do and not do? I think that’s where the lawsuits will be.”
Other parts of the deal, however, are easy to grasp.
The framework would also consolidate nearly 50 smaller federal programs—including those focused on education technology and physical education—into a block grant, a big priority for Kline, the House education chairman.
And it would enshrine in law, an early-childhood-education initiative that’s a huge priority for Murray, the senior ranking democrat on the Senate education committee. But the new program would be housed at the Department of Health and Human Services, not the Education Department as some Democrats had first hoped. The Education Department would jointly administer the program.
The agreement does not include Title I portability, which would have allowed the flagship federal aid for disadvantaged students to follow children to the schools of their choice, in states that elected to participate.
But the deal does include a pilot project that would allow districts to try out a weighted student-funding formula, which would create some flexibility in transferring federal funds.
Even though the deal keeps annual testing in place, it would set up a pilot project giving a handful of states the chance to try out local tests with the permission of the federal Education Department.
Importantly, those local tests aren’t supposed to be used forever—the point is for districts to try out new forms of assessment (as New Hampshire is doing with performance tasks) that could eventually go statewide and be used by everyone. That way, states wouldn’t get stuck with the same old assessment for years on end.
What’s more, the deal would allow for the use of local tests at the high school level, with state permission. So a district could, in theory, use the SAT or ACT as its high school test instead of the traditional state exam.
David Schuler, the superintendent of High School District 214 in the Chicago suburbs, is especially excited about the provision. If the deal becomes law, he may try out one of the college-entrance exams in his district, if his state gives the OK.
As for the question of whether states would continue to hold schools accountable, Schuler doesn’t expect accountability to go away.
“Some people might try to portray this as a free-for-all, or the wild, wild west, but that’s not the case,” said Schuler, who is the president of AASA, the School Superintendents Association. “This would allow those conversations to move from D.C., in most cases, to our state capital, and that’s where they should be.”
A version of this article appeared in the December 02, 2015 edition of Education Week as Days Could Be Numbered for No Child Left Behind