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Every Student Succeeds Act

ESSA Negotiated Rulemaking Committee Agrees on Testing Issues

By Alyson Klein — April 19, 2016 7 min read
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After eight days of negotiations and countless proposals, a panel of educators, advocates, and officials from the U.S. Department of Education came to agreement Tuesday on assessment regulations under the Every Student Succeeds Act. Those rules are now on their way to becoming official, after they’ve been published in the Federal Register.

But the panel was unable to reach accord on a sticky spending issue called “supplement-not-supplant” which essentially deals with how federal funds are supposed to be used relative to local and state spending. That means the Education Department will write its own rules on this issue.

And it’s possible that whatever the department comes up with will be challenged in court, or halted through new legislation. U.S. Sen. Lamar Alexander, R-Tenn., an architect of ESSA, recently told U.S. Secretary of Education John B. King, Jr., that his department’s proposal amounts to an attempt to rewrite the law. It’s unclear if there will be big changes—a department spokeswoman said the discussion helped advance the agency’s thinking on the issue.

In a statement released Wendesday, Alexander thanked the ESSA negotiators, and in particular praised those who rejected the department’s proposed supplement-not-supplant rule.

“I’m grateful for the hard work of the negotiators who believe the Education Department should follow the law that Congress wrote. I’m sure they are frustrated not to reach a consensus, but they deserve everyone’s thanks for protecting our nation’s classrooms from unelected bureaucrats in Washington who seem determined to act as a national school board for 100,000 public schools. And they have my promise that I’ll use every tool at my disposal to back up their hard work and see that the law is implemented the way Congress wrote it,” Alexander said in the statement.


The toughest part of the assessment negotiation was on tests for students with severe cognitive disabilities. Under ESSA, states are only supposed to give those tests to 1 percent of their students overall, or about 10 percent of students in special education. Individual districts, however, can exceed that cap. And states can get a waiver from the department if they need to go over the 1 percent.

After hours of back-and-forth, the negotiators eventually rejected an attempt to have a common definition of what exactly the law means by “severe cognitive disabilities.” Instead they agreed to require states to define the term on their own.

But the regulations set strong parameters for the definition states come up with, at the behest of civil rights advocates on the panel. For instance, states can’t identify a student as having a severe cognitive disability just because that student doesn’t do well in school, or only because that student is an English-language learner.

And states have to take into account both students’ adaptive behavior (how they handle being in school) and their cognitive abilities (their academic potential) in writing their definition.

There was also much back-and-forth on what conditions states must meet to get waivers from the 1 percent cap. Ultimately, the committee embraced much of the Education Department’s proposed language.

Under the agreement, states will have to explain how they eventually plan to comply with the cap. And they’ll have to show that they are testing 95 percent of their students—both overall and among students in special education—in order to get a waiver from the 1 percent requirement.

Some folks on the panel, especially Lynn Goss, a paraprofessional representing the National Education Association, weren’t fans of that provision. But all negotiators ultimately decided they could live with it.

“I can’t believe we got there,” said Ron Hager of the National Disability Rights Network, who was representing the disability community on the panel. He likes the parameters states must consider in cooking up their definitions, even though he wishes that the panel could have set “an enforceable definition” for every state.

Hager is disappointed that language originally proposed by the department requiring states to make sure that poor and minority students aren’t disproportionately identified as having a severe cognitive disability came out. But overall, he’s happy with the assessment agreement.

So is Tony Evers, the state superintendent of Wisconsin. He had previously said the requirements to get a waiver from the 1 percent testing mandate were even more onerous than the requirements to get a waiver from NCLB.

But he was satisfied with the compromise. States were never going to get full flexibility from the 1 percent cap, he said. After all, “It’s in the law,” he said.

Negotiators also agreed on a definition of a nationally recognized test that would allow tests used for college placement or entrance to count, without specifying which tests are in the mix. (Education department officials said that SAT, ACT, PARCC, and Smarter Balanced are contenders, however.) And the compromise made it clear that states are responsible for providing students in special education and English-language learners with the accommodations they need for any test taken during the school day for accountability purposes, including the ACT or SAT.

District officials on the panel, including Derrick Chao, a school board member from Los Angeles, tried to get districts the flexibility to slowly phase in the new tests. Chao said the requirement that an entire district use the same nationally recognized test unfairly penalizes big districts, while making life easier for little districts, with just one high school, or charter schools. But his proposal did not fly with the department. Patrick Rooney, who represented the agency on the panel, said he would block agreement if it was included.

The panel was also able to come to accord on computer-adaptive tests, and how tests for students taking advanced math in 8th grade should work.

It’s important to note that this is just a tentative agreement. The Education Department will still need to publish these regulations in the Federal Register and get comment on them before they are truly final. There could still be minor tweaks.


The department’s proposed regulations would have required districts to look at the actual local and state dollars going to schools that get federal Title I money for disadvantaged students vs. those that don’t get Title I dollars.

That means they would have had to take teachers’ salaries into account, as opposed to just making sure all teachers are on the same salary schedule, as districts do now. (Deeper explanation of this issue from Andrew here.)

During discussion Tuesday, opponents of the language, including Alvin Willbanks, the superintendent of the Gwinnett County School District in Georgia, essentially agreed with Alexander, saying the department’s proposal flies in the face of what Congress wanted.

“I don’t believe this is in the law,” he said. “This is an overreach.”

Evers said such language would call for districts to take money from one school, and give it to another, lead to forced teacher transfers, and would generally be a nightmare for state departments of education to regulate on.

“We’ll have to monitor the salaries of every teacher in Wisconsin,” he said. “I’m not trying to be an obstructionist here. The bottom line is that if you don’t meet greater than or equal to average cost, then you’re out of compliance.”

Liz King, of the Leadership Conference on Civil and Human Rights, said, “it’s important to flag that the disruption we’re talking about would be disrupting inequity. ... There is an inequitable system, and in order to get from inequity to equity there will be disruption.”

To be sure, the panel did try to tweak the department’s proposal. For instance, Thomas Ahart, the superintendent in Des Moines, attempted to insert language that would have allowed states to look at how many full-time-equivalent staff they had in meeting the requirement. And representatives of teachers on the panel tried to insert language that would have made it clear that districts would still have to adhere to collective bargaining agreements. But those proposals ultimately didn’t fly with all negotiators, including the department.

Still, the discussion has informed the department’s view of supplement-not-supplant, however, said Dorie Nolt, a spokeswoman.

The panel’s “deliberations have helped to advance our thinking on these issues,” she said. “The Department will continue to take their input into account as we move forward with the regulatory process.” (Just how much has it shifted? We’ll find out when we see the department’s next proposal.)

Want to see the full agreement on testing? The department will release it later this week.