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Every Student Succeeds Act

Ed. Dept. Sketches Out Transition to ESSA From NCLB, Previews Regulation

By Alyson Klein — December 18, 2015 5 min read
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The Every Student Succeeds Act is just over a week old, but the U.S. Department of Education wasted no time in getting out initial guidance to states on how the transition process will work from the No Child Left Behind Act and the waivers (which expire on Aug. 1, 2016) to this new law (which kicks in fully in the 2017-18 school year, when a new president and education secretary will be in place).

The department also gave a preliminary picture of how it would like to proceed on regulation. Bottom line: It’s in the market for input from state schools chiefs, teachers’ unions, the civil rights community, etc. There will be two public meetings next month, one in Washington and one in Los Angeles for input.

And the department seems to want as smooth a transition process as possible.

It’s focusing the final months of NCLB waivers on the pieces that most closely resemble where states will go under ESSA (school improvement, and standards and assessments) while stepping back on federal enforcement in a big way when it comes to teacher evaluation through student outcomes, which won’t be required under the new law. (Wonky details below.)

So what about those looming questions about what kind of new factors states can bring into their accountability systems, how much they’ll have to count relative to tests, how the new language on subgroups of students will work? No answers yet, which is no surprise. After all, the department literally just got the law, and it’s more than 1,000 pages long.

But however the department decides to resolve those issues, it’s clear Congress will be watching. U.S. Sen. Lamar Alexander, R-Tenn., head of the Senate education committee, has already said he wants to hold at least three hearings next year on ESSA implementation. And Congress may be able to review some regulations before they take effect. (More on that below.)

Meanwhile, advocates for school districts and states have different ideas about just how far they’d like the department to go in regulating under ESSA. Liz King, of the Leadership Conference on Civil and Human Rights, wants the department to keep the pedal to the metal on equity, and has the power to do so. Noelle Ellerson of AASA, the School Administrator’s Association, worries about overzealous regulation.

Keeping both camps happy could be a balancing act for the department. More here.

Regulation Kicks Off

The law already makes it clear that regulations for three areas—standards, assessments, and supplement not supplant (a wonky rule that governs how federal funds can or can’t replace state and local funds) need to go through “negotiated rulemaking.” (That’s a bureaucratic term for a process where education advocates and the department basically get in a room and try to hash out an agreement.) If that process fails, which it often does, ESSA allows Congress to review the regulations in those areas before they take effect.

For now, the agency is asking for ideas and input on two of those issues—assessments and supplement not supplant, as well as Title I—the part of the law with all the accountability stuff in it—more generally. Importantly, accountability doesn’t have to go through negotiated rulemaking—the process can be more streamlined.

Transition from NCLB and Waivers

The department also sent a letter this week to state chiefs giving some preliminary details on how the handoff between NCLB and the waivers will work.

Peer Review: The assessment peer-review process that the department put in place back in September will continue. But the department will shift the deadlines a bit, to give officials time to sort out how the process should look in this new ESSA era. (Big changes aren’t likely, though.) That means the department has adjusted the peer-review deadlines a bit and cancelled an original January deadline.

Low-Performing Schools: Under ESSA, states and districts will still have to turn around their 5 percent lowest-performing schools, plus high schools with high dropout rates. And they’ll have to intervene in schools where subgroups of students are struggling.

ESSA is clear that states will have to keep focused on fixing foundering schools and those with big achievement gaps during this transition time. So waiver states can either “freeze” their lists of those schools, or they can name new ones and remove those that have cleared the turnaround bar by March of next year.

Waiver Changes: Now that waivers are on their way out the door, the department isn’t taking any new waiver requests. But it will allow states to amend their plans when it comes to the two pieces of the waivers that dovetail most closely with ESSA: standards and assessment, and school improvement.

Waiver paperwork: The department isn’t taking a hard line on the pieces of waivers that aren’t a part of ESSA, like teacher evaluation. (Department officials obviously still think teacher performance reviews are important and are still happy to provide technical assistance to states that want it.) Instead, it’s shifting the focus to the pieces of the waivers that will remain part of the picture under ESSA (standards and tests, plus fixes for struggling schools).

That means states that are on high-risk status because of that teacher evaluation requirement (Texas and South Dakota, to name two) and other states that were given just a one-year waiver because of their handling of the issue (i.e. New Hampshire) don’t owe the department any more paperwork on how they are adjusting their teacher-evaluation plans. But states that had issues with school improvement or standards are still on the hook for getting the department information it has requested. (That would seem to mean, for instance, that Ohio still needs to submit a “high-quality plan” showing how its standards match its assessments, if it hasn’t already).

Annual Measurable Outcomes (NCLB-speak for short-term goals and targets): Before ESSA passed, waiver states were allowed to hit the pause button on school ratings systems for a year, as they transition to new tests. But those states were supposed to go back and retroactively set “Annual Measurable Objectives”. That made some states cranky at the time.

ESSA still requires states to set long- and short-term student achievement goals. So they’ll need new targets under the new law, too. But under ESSA, states have a lot more say over what those goals will look like. Because of that change, the department has essentially told states that took the “pause” that it won’t be necessary to go back and work on targets and goals from the old law. That doesn’t mean transparency is out the window. States will still need to put out report cards for the 2014-15 school year and the 2015-16 school year.