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ESEA Conference Committee Kicks Off, NCLB One Step Closer to Extinction

By Alyson Klein — November 18, 2015 12 min read
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School districts and state officials have been pleading with Congress for years to update the much-maligned No Child Left Behind Act, the current version of the Elementary and Secondary Education Act. And now it looks like they are finally on the verge of getting their wish.

Lawmakers on the U.S. Senate education committee and more than a dozen House members met in a conference committee Wednesday to begin reconciling two bills—one a Republican-only measure that barely passed the U.S. House of Representatives in July, and the other a Senate version that cleared the U.S. Senate with big, bipartisan support a few days later.

Even before the official start of the conference, the lead negotiators, Reps. John Kline, R-Minn., Bobby Scott, D-Va., and Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., came to a preliminary agreement or “framework” to jump-start negotiations. The agreement, called the “Every Student Succeeds Act” is not the final word, but it will help guide the conference process, which could conclude this week. The legislation is expected to be on the floor of both chambers shortly after the Thanksgiving recess.

Alexander, who worked for almost a year with Murray on the rewrite, said at the start of Wednesday’s conference that there is a consensus that NCLB is a broken law. And, he said, there’s a consensus on how to fix it.

“This agreement, in my opinion, is the most significant step towards local control in 25 years,” Alexander said.

For her part, Murray stressed that the framework includes “strong federal guardrails ... so that students don’t get left behind.”

The proposal, which hasn’t been released or finalized, is expected to keep some of the NCLB law’s most-important transparency measures in place, like continued annual testing in grades 3 through 8 and once in high school. And it includes some protections for perennially foundering schools and those where poor and minority students, or students in special education and those just learning English, are struggling.

But otherwise, states would be handed the car keys when it comes to almost everything else, including: how to fix perennially foundering schools and how to assist schools that may be doing well overall, but still struggle to help certain groups of students (like English-language learners).

The framework would also consolidate a number of smaller programs into a block grant, a big priority for Kline. And it would take direct aim at what Alexander has called the “National School Board” by prohibiting the U.S. Secretary of Education from interfering with state prerogatives on teacher evaluation, testing, standards, school turnarounds, and more.

That language is largely seen as a rebuke to Education Secretary Arne Duncan, who has flexed his executive muscle more than other secretary in history, including by calling for states to adopt teacher evaluations that take test scores into account in order to get a waiver from the mandates of the NCLB law.

But the framework does include some key wins for the White House and Democrats, including a requirement that states turn around around the bottom 5 percent of their schools (an idea borrowed from the administration’s NCLB waivers).

And it goes further on accountability than either the House or Senate bills to overhaul the ESEA. It’s an open question, though, just how much those new accountability provisions will play out given the litany of very explicit prohibitions on the secretary’s authority. (More on all that below.)

So will this thing pass? Aides have been working for months to reconcile the Senate version of the measure, which passed by a huge bipartisan margin in July, and the House version, which barely squeaked through with only GOP votes in July. (And that narrow House passage came only after the bill faltered due to lack of conservative support in February.)

The deal has the potential to get big bipartisan support in both chambers. But it could divide Republicans in the House, where a new speaker, Rep. Paul Ryan of Wisconsin, has just stepped up to the plate. And indeed, Sen. Mike Lee of Utah took to the floor of the Senate Wednesday to complain, saying the bill was essentially already a done deal. Alexander assured him the process will be open.

During the committee meeting, Alexander stressed that voting against the bill is a vote to continue the current Obama-eduregime: “the common-core standards, the national school board, and the waivers in 42 states.”

For now, at least, it looks like legislation based on the framework will sail through the conference committee. The committee’s first meeting was basically a love-fest, with lawmaker after lawmaker praising the bill and thanking the negotiators.

To be sure, folks expressed angst about pieces of the preliminary agreement. Democrats are bummed about program consolidation, and some Republicans said they wished the bill scaled back the federal role even further.

But Rep. Todd Rokita, R-Ind., was happy to see there’s language in the bill making it clear that the education secretary can’t coerce states into adopting the Common Core State Standards. And he’s glad that nearly 50 programs have been eliminated in the framework, in favor of a flexible fund state can use as they chose. He wishes the bill’s spending levels were a little lower, though.

Sen. Chris Murphy, D-Conn., who worked to beef up accountability in the Senate version of the bill and ultimately was just one of a handful of senators to vote against final passage because of civil rights concerns, is happy this time around.

“We have to get this right because the accountability framework in this bill will serve as a fail-safe for how millions of historically marginalized children will be treated in this nation,” he said.

Meanwhile, Sen. Elizabeth Warren, D-Mass., who also voted against the Senate bill because she felt it lacked teeth on accountability, said she was taking a very careful look to this version.

What’s the early reaction from edu-advocates? Many folks are biding their time until there’s real language. But in comments late last week, advocates for state officials made it clear they know a lot of trust is being placed in their hands.

Kris Amundson from the National Association of State Boards of Education said that while the NCLB law might end soon, its purpose should live on in the next ESEA reauthorization.

“It’s going to place tremendous responsibility on states to ensure NCLB’s commitment to educating every child,” Amundson said in an interview.

And Chris Minnich, the executive director of the Council of Chief State School Officers, said in a statement. “This progress is critical to creating a long-term, stable federal policy that gives states additional flexibility, while at the same time holding us accountable for results.”

But the Heritage Fund, a conservative group which helped kill an earlier version of the House bill in March, is unhappy with this latest attempt. What’s more, three GOP senators, Lee of Utah, David Vitter of Louisiana, and Tim Scott of South Carolina, sent a letter to the lawmakers who crafted the framework, asking for further support for school choice.

So what’s in this preliminary framework? We brought you the details, Thursday night and early Friday.

Here’s your latest cheat sheet on the details of the framework, including some new updates.

This information was garnered from an overview of the framework provided by the committee, as well as interviews with multiple sources who were briefed on the framework, including congressional aides.

On Accountability

The compromise uses the Senate bill as a jumping-off point here. Quick refresher: That means states would still have to test students in grades 3-8 and once in high school in reading and math. But states would get to decide how much those tests count for accountability purposes. And states would be in the driver’s seat when it comes to goals for schools, school ratings, and more. States could also incorporate other factors into their accountability systems, including access to advanced coursework, school climate, and safety.

States would be required to identify and take action in the bottom 5 percent of schools, and schools where less than two-thirds of kids graduate.

States would also have to identify and take action in schools where so-called subgroup students (including English-language learners and students in special education, as well as poor and minority students) are struggling. But importantly, the bill doesn’t say how many of those schools states would have to pinpoint, or what they would have to do to ensure that they are helping these students achieve—the bill allows local leaders to figure all that out.

And the School Improvement Grant program would be a thing of the past. Instead, states could reserve up to 7 percent of their funds to help with turnarounds and other interventions.

On Opt-Outs

The bill largely sticks with the Senate language, which would allow states to create their own testing opt-out laws (as Oregon has). But it would maintain the federal requirement for 95 percent participation in tests. However, unlike under the NCLB law, in which schools with lower-than-95 percent participation rates were automatically seen as failures, local districts and states would get to decide what should happen in schools that miss targets. States would have to take low testing participation into consideration in their accountability systems. Just how to do that would be up to them, though.

Early drafts of the ESEA legislation looked complicated on accountability, one advocate said.

“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,” said Charlie Barone, the policy director at Democrats for Education Reform, who served as an aide to Rep. George Miller of California, the top Democrat on the House education committee, when NCLB was written.

But that complexity could actually be a boon to state and local control, especially since the compromise includes nearly all of the restrictions on the secretary’s authority that were in the House and Senate versions, a GOP aide said.

“The complexity helps,” said a GOP aide who participated in the negotiations. The agreement “leaves a lot of this to states to figure out and the secretary’s ability to interfere with those state decisions is astonishingly limited.”

Local and Innovative Tests

The framework sets up a pilot project, giving a handful of states the chance to try out local tests, with the permission of the U.S. Department of Education. And importantly, these 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 don’t get stuck with the same old assessment for years on end.

What’s more, the framework allows 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.

On Programs

There’s more consolidation of federal education in the compromise than there was in the Senate bill, including block granting of physical education, mathematics and science partnerships, and Advanced Placement. In fact, dozens of programs are included in the block grant, some of which, like education technology, haven’t seen much funding federal in years.

Some programs would live on as separate line items, including the 21st Century Community schools program, which pays for after-school programs and has a lot support on both sides of the aisle.

Murray got the early-childhood investment she wanted—the bill enshrines an existing program “Preschool Development Grants” in law. But the program would be housed at the Department of Health and Human Services, not the Education Department as some Democrats had initially hoped. The Education Department would jointly administer the program, sources say. (The reason: HHS already has some early-education programs, like Head Start. Expanding the education department’s portfolio was a big no-no for conservatives.)

That new research and innovation program that some folks were describing as sort of a next generation “Investing in Innovation” program made it into the bill. (Sens. Orrin Hatch, R-Utah, and Micheal Bennet, D-Colo., are big fans, as is the administration.)

So did a wraparound services program that shares some DNA with both Promise Neighborhoods, as well as a community schools program that Rep. Steny Hoyer of Maryland, the second-ranking Democrat in the House, really likes.

On School Choice

No Title I portability—that means that federal funds won’t be able to follow the child to the school of their choice.

But the bill does include a pilot project allowing districts to try out a weighted student funding formula, which would also essentially function as a backpack of funds for kids. The program would allow 50 districts to combine state, local, and federal funds into a single pot that could follow a child to the school of their choice. It is said to be a more workable alternative to Title I portability, which looked more dramatic on paper, but which few states would likely have taken advantage of because of its complexity, experts said. Importantly with this pilot, participation would be entirely up to district officials. And the language would give them a chance to better target funds to individual school needs.

Funding and Other Issues

No changes to the Title I funding formula along the lines of what the Senate passed that would steer a greater share of the funds to districts with high concentrations of kids in poverty. But there were some changes to the Title II formula (which funds teacher quality) that would be a boon to rural states.

There was some chatter that the bill would also incorporate changes to the Family Educational Rights and Privacy Act. That’s not part of the agreement.

The framework would only “authorize” ESEA for four more years, as opposed to the typical five. That gives lawmakers a chance to revisit the policy under the next president, should they choose to do so. And its overall authorization levels are largely consistent with the most recent budget deal.

Read the committee’s official overview of the ESEA framework.

Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar Alexander, R-Tenn., left, and House Education and the Workforce Committee Chairman Rep. John Kline, R-Minn., talk on Capitol Hill in Washington on Wednesday before a meeting of House and Senate negotiators trying to resolve competing versions of a rewrite of the Elementary and Secondary Education Act.

--Jacquelyn Martin/AP

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