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Democrats Say DeVos Is Flouting ESSA. She Says No Way. Let’s Unpack the Debate

By Alyson Klein — February 19, 2018 9 min read
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The U.S. Department of Education is more than halfway through approving state plans to implement the Every Student Succeeds Act—but not everyone is pleased with how things are going.

Two Democratic ESSA architects say U.S. Secretary Betsy DeVos is rubber-stamping plans that don’t comply with the law. But the secretary says she’s not greenlighting a single plan if it doesn’t meet the law’s requirements.

So what’s behind each of these arguments? (Get excited ESSA geeks, wonky blog post ahead).

First, some background: When ESSA passed with big, bipartisan support in 2015, lawmakers on both sides of the aisle agreed that it a) gave way more flexibility to states than the No Child Left Behind Act, which the law ESSA replaced, and b) kept in place some of NCLB’s “guardrails” to make sure states, districts, and schools continue to look out for vulnerable subgroups of students.

But behind the scenes, congressional aides on different sides of the aisle and advocates with different points of view—all of whom supported the law—described the in-the-weeds pieces of ESSA very differently.

Now these different takes on what, exactly, ESSA means are playing out in disagreements over just which plans meet the law’s requirements. As a reminder, 33 states, the District of Columbia, and Puerto Rico have gotten a thumbs-up from the feds, and the other 17 states have at least gotten feedback from the department.

The politics: Sen. Patty Murray, D-Wash., and Rep. Bobby Scott, D-Va.—ESSA authors and the senior Democrats on the Senate and House education committees—have said that DeVos is letting states flout the law’s protections for historically-overlooked kids.

“I’m very concerned that the department of education is approving state plans that do not comply with all of ESSA’s federal guardrails,” Murray said at a hearing last month. She cited specific examples dealing with subgroups of students and categories of low-performing schools. “I believe in this law, and I’m not going to stop raising these issues until the department resolves them.”

Scott expressed similar concerns, in this letter with Murray.

For her part, though, DeVos told reporters in a recent interview that she’s not letting states slide on ESSA’s requirements.

“I’ve said frequently, and I’ll say it again, I’m only approving plans that comport with the law,” DeVos said. “And I’m encouraging anyone who’s been critical of me and/or the department on approval of plans—that they in some way don’t follow the law—I want to know where that’s falling short and where is that exactly the case. And I haven’t really had any specific examples brought to our attention yet.”

And Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee and another ESSA author, said DeVos is, “appropriately balancing the law’s flexibility and guardrails.”

DeVos is supposed to meet with Murray, Scott, Alexander, and Rep. Virginia Foxx, R-N.C., the chairwoman of the House education committee, to go over these issues.

So what will they, or their lawyers, talk about?

Let’s dive down into the policy weeds and look closely at what’s behind each of these arguments.

State Rating Systems

Murray, other Democrats on the Senate education committee as well as advocacy organizations such as the Alliance for Excellent Education have argued that DeVos has OK’d plans that allow schools to get the highest rating (say an A) in their state’s school rating system, even if subgroups of students such as minorities and those with disabilities are falling behind.

Here’s why that’s a problem, as explained by the Alliance: ESSA doesn’t specifically say schools can’t get an A if the performance of subgroup students is iffy. But the law does require states to factor in the performance of each subgroup into their accountability system (the calls that a system of “annual meaningful differentiation.”) And the law says states must use that system to flag schools that are a) in the bottom 5 percent overall, performance-wise, for comprehensive support, b) struggling with particular groups of students, for targeted support, and c) have subgroups of students that are performing as badly as the kids in the bottom 5 percent of schools, for “additional targeted support.” And in making those determinations, states must consider subgroup performance on each indicator of the accountability system. (That includes test scores and school quality factors like college-and-career readiness.) If states are going to use a rating system for their “system of annual meaningful differentiation” they need to take subgroup performance into account, the Alliance argues. And if states are giving schools A’s that aren’t doing a good job of educating, say, English-language learners, then the state really isn’t taking the law’s requirements seriously. (More in the Alliance’s legal brief on this issue.)

The reason this is a big deal to civil rights groups and Democrats: The Obama administration’s waivers for states from provisions of the NCLB law didn’t require states to intervene in schools where any individual subgroup was struggling, just the schools with the lowest performance or biggest achievement gaps in the states. They thought ESSA was going to change that, and now they’re worried it won’t.

Murray and the Alliance didn’t name states with approved plans that are missing the mark on this point. But sources who have analyzed the plans found problems with Arizona, Indiana, Maryland, and New Mexico. (The Education Trust has also did a deep dive on plans, many of which have not yet been approved, and found similar problems.)

The department’s argument: We’ve copied a response from the agency below. It’s in legalese, so scroll down for our best crack at a plain language translation.

The response: 1) Section 1111(c)(4)(C) requires a state to establish a "system of annual meaningful differentiation" of indicators for all students and for subgroups so that data is available for identifying schools for comprehensive and targeted support. It does not require the state to establish an overall, public-facing rating system. In fact, the requirement of a summative rating system was rejected by Congress and by the prior administration when it issued regulations under ESSA. To the extent that a state creates a summative rating system, it is doing something the statute neither requires nor prohibits. ESSA does not dictate any particular criteria for such a system, and therefore it does not violate ESSA for states to include one set of criteria rather than another. With respect to comprehensive support, the Obama administration told states that identifying for purposes of comprehensive support the lowest-performing five percent of schools under section 1111(c)(4)(D)(i)(I) and low graduation rate under section 1111(c)(4)(D)(i)(II) could be based on indicators for all students and need not include indicators for each subgroup. (See page 33,// We agree with the Obama administration that this is a permissible way of complying with the statute.

Politics K-12 translation of the department’s argument: Yes, ESSA requires states to take subgroup performance into account when deciding which schools need to be flagged for extra help. But states only have to identify schools for certain categories: comprehensive support, targeted support, and other schools. There’s nothing in ESSA that says states must create A-through-F rating systems, or assign number ratings to schools. So states that are designing these rating systems are taking an extra step that’s not required by the law. (And in fact, some states, like California, want to use dashboards that don’t include an overall score for schools.)

Even the Obama administration decided it couldn’t force states to use these so-called summative ratings in their systems when it wrote the now-defunct ESSA accountability regulations. Therefore, the department would be overstepping its bounds if it tried to tell a state that wanted to use a summative rating what that system should look like. All that’s appropriate for the department to do is to make sure the state is taking subgroup performance into account when flagging schools for targeted support.

And others have pointed out that it’s tough to tell whether states are missing schools that really need help when they haven’t decided which schools are their lowest-performing yet. That won’t happen until after this school year.

Categorizing Schools

Another big issue that Murray mentioned in a recent hearing has to do with identifying schools for extra help.

ESSA requires states to flag schools for “additional targeted support” where vulnerable groups, such as English-language learners, are doing as badly as the kids in the worst-performing schools in the state. (The Obama administration’s defunct ESSA regs called these “low-performing” subgroups.) Those schools need to come up with a plan to fix the problem, monitored by the district. If the school doesn’t get any better over time, the state is supposed to step in and identify the school for comprehensive support..

ESSA also requires states to flag schools for “targeted support” where subgroups of students are “consistently underperforming.” Yes, that sounds a lot like the schools in “additional targeted support” but, crucially, states get to decide what, exactly, consistently underperforming means. Schools have to come up with a plan to fix those schools, monitored by the district. If these schools with consistently underperforming subgroups don’t any better fast enough, the district steps in. (There’s no specific timeline in the law for this.)

Some states though, decided to essentially lump these two categories—consistently underperforming and low-performing subgroups—together and use the same, or a really similar, definition for both. Those states include Delaware, New Mexico, North Dakota, Washington, and Washington D.C., according to sources who have analyzed the plans.

Here’s why the Alliance thinks that’s a problem: ESSA clearly is asking states to come up with two buckets of schools where subgroup performance is problematic. The law even outlines different sets of procedures for each of those types of schools. States that decide to use the same definition for both are not doing what they are supposed to.

The Alliance would like the department to tell states to amend their plans—even if they have already been approved—to deal with this issue and the problems with rating systems.

The department doesn’t see it that way. Here’s the legalese from the feds:

ESSA directs states to identify schools "in which any subgroup of students is consistently underperforming, as determined by the State" for targeted support and improvement. Because the statute expressly confers on States, rather than the Department, the authority to determine what it means for a subgroup to be "consistently underperforming," ESSA provides no basis for the Department to prohibit a state from selecting criteria that overlap with the criteria for additional targeted support.

Politics K-12 translation of that argument: The department believes ESSA is really clear that states get to come up with the definition of consistently underperforming, not the feds.If states decide to make the definition of “consistently underperforming” the same as their definition of “low-performing,” the law allows them to do that. The department would be overstepping our bounds by telling them they can’t.

Who is right? And what happens next?

OK, that was a tease. We can’t really tell you who is right. We’re reporters, not judges or lawyers. Sorry!

But the executive branch, in this case the Education Department, gets to carry out laws. Civil rights groups, advocates, and even lawmakers can try to force a change to the way the department is going about this through political cajoling, or even by suing the agency. Of course, if DeVos and Company nixed plans that state leaders felt complied with the law, she could also get sued by states or their advocates.

Politically, though, the clash over just what ESSA means and how that translates into state plan approval is just one more bit of bad blood between Democrats in Congress and the Trump administration. It also calls into question just how bipartisan ESSA really was, if everyone is fighting about what the law really means more than two years after it passed.

Want to learn more about the Every Student Succeeds Act? Here’s some useful information:

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