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Every Student Succeeds Act

Ed. Department Names ESSA Negotiators, Key Areas of Discussion

By Alyson Klein & Andrew Ujifusa — March 04, 2016 7 min read
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Get ready, get set: Negotiate rules for the Every Student Succeeds Act!

Later this month, a group of negotiators (names below) will gather at the U.S. Department of Education to hash out regulations for certain parts of the newest version of the Elementary and Secondary Act. ESSA requires the department to go through the “negotiated rulemaking” process on three sections of the law—standards, assessments, and supplement-not-supplant, which deals with how states and districts spend their own funds in relation to federal money. The department is starting with assessment and supplement-not-supplant.

How does negotiated rulemaking work? The folks listed below essentially get together in a room and try to hammer out an agreement with the department. If the process fails, which it often does, the feds go back to the drawing board and negotiate through the regular process, which involves releasing a draft rule, getting comments on it, and then putting out a final rule.

Who is on the committee?

See below for the list of those who are on the committee and their organizational affiliations:

The department outlined some points that negotiators will consider in a set of discussion papers Friday. In general, the papers give background on key areas in supplement-not-supplant and assessments. In the papers, the department posed question for rulemakers to consider—they did not propose regulations in most cases, a department official said.

There is however, some proposed regulatory language in a few areas, including 8th grade math assessments (the department has already worked with states on that area through No Child Left Behind Act waivers), limited English proficiency, and computer-adaptive assessments.

Assessments: ESSA keeps in place the annual tests in grades 3 through 8 and once in high school that were a hallmark of the No Child Left Behind Act. But it also adds some new twists on testing. Rulemakers may help clarify:

  • How it will work for some districts to use a nationally recognized test instead of the state assessment for high schools. Department officials will need to decide what constitutes a “nationally recognized test.” (Is it ACT and SAT and that’s it? Could other tests—maybe even a brand-new test—count?) They’ll also have to make sure that the tests can be easily compared to 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.
  • Computer-adaptive testing, a tough area for districts and states already. These types of tests can be faster and more efficient, but they also offer different questions to different students, depending on their achievement level. The 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. After all, if tests focus just on whether students are making some 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.
  • 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 II test while most other kids take Algebra I. This something the department had already allowed, through a waiver, before ESSA passed. The department wants to make sure many more kids have access to those advanced classes and that the alternative, harder math tests are of high quality. The feds proposed language to make that happen.
  • Tests for students with disabilities. ESSA requires that all assessments, to the extent it’s possible, use universal design for learning (UDL) principles to support all students’ learning needs. The department also addresses ESSA’s requirement that accommodations are provided to students with disabilities as identified under the Individuals with Disabilities in Education Act or other laws. The department asks negotiators, among other issues to consider, 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. ESSA says no more than 1 percent of students in a state can take an alternative test in any single subject for students with severe cognitive disabilities. But it’s unclear how that will work on a district-by-district level. Among other issues, the department presents negotiators with the question of whether the regulations should define “students with the most significant cognitive disabilities.” The department also says negotiators could consider how a state will be able to ensure that it does not assess more than 1 percent of children with the most significant cognitive disabilities with an alternate assessment in a given subject, since it is not able to limit the number of students assessed with an alternate assessment at the district or school level.
  • How English-language learners are going to be included in proficiency and academic assessments. (For the first time, 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 under the sun, but they must have native language assessments on hand in any language that a “significant “number of kids speak, and make “every effort” to develop those tests if they don’t exist. Those terms are obviously kind of vague, and the department wants negotiators to consider fleshing them out.
  • How states should use English-language-proficiency tests. ESSA is the first law to require states to measure English-language proficiency for accountability purposes. The department wants to make sure these tests meet high quality standards.

Supplement-not-supplant: The issue paper for supplement-not-supplant stresses that the federal Title I funds are intended “to provide the additional educational resources and supports that at-risk students need to succeed, instead of being used to simply make up for unfair shortfalls in state and local funding.” [Text bolded in the original]

The paper outlines that under ESSA, the rule includes a single compliance test “that focuses on a district’s methodology for allocating State and local funds.” Specifically, it requires that a district “demonstrate that the methodology used to allocate State and local funds to each [Title I school] ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under [Title I].”

Here are some of the questions the department in the issue paper presents for discussion of supplement-not-supplant:

  • What does it mean to “ensure that a Title I school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part”?
  • What does it mean to have a “methodology for allocating State and local funds” in a district that allocates resources such as staff positions instead of dollars? In a district that allocates funds through a school-based budgeting system or weighted student-funding system?
  • Should regulations implementing this statutory provision create certain allowances for flexibility, such as when a district has particularly small schools, or allow for different allocations among grade spans
  • What does it mean to meet this requirement two years after the date of enactment, when the date of enactment is in the middle of a school year? Does a district need additional time to meaningfully implement a methodology that meets the statutory requirement?
  • What enforcement action must a state take if it finds that a district has not complied with the requirement? What corrective actions should the district have to take?

Under the previous version of the federal education law, for supplement-not-supplant districts had to show in itemized form how Title I money for low-income students was being used on supplemental school services. Under ESSA, districts no longer have to do that.

What is the timeline here? The department will hold at least two negotiated rulemaking sessions, one from March 21-23, and another April 6-8. There’s an optional session on April 18-19. No word yet on when regulations may be final or when plans will be due.

What about other ESSA rules? Other key issues of the law, including accountability, will be done through the typical regulatory process, which doesn’t involve formal, in-person meetings.

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