Every Student Succeeds Act

ESSA Negotiators Dig Into Regulatory Details

By Alyson Klein — April 11, 2016 4 min read
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Much of the federal education policy community got behind the Every Student Succeeds Act, which replaced the much-maligned No Child Left Behind Act.

But that doesn’t mean it will be easy to get a diverse group of educators, advocates, and experts—as well as the U.S. Department of Education—to agree when it comes to regulations on testing and a funding issue known as “supplement-not-supplant.”

A panel charged with writing regulations on those pieces of the law has met for six days over two separate sessions and had not yet reached agreement on proposed new regulations.

The issues under discussion are deep in the policy weeds, but many of them—including how testing for students in special education and English-learners should work under ESSA—could have major implications for implementation of the law for years to come.

The panel is likely to schedule a third session to see if members can hash out an agreement. If they don’t, the Education Department will write the rules on its own.

Among the stickiest issues is supplement-not-supplant, which refers to how federal dollars interact with state and local spending. Advocates representing school districts, state chiefs, school board members, and other practitioners are none too happy about the department’s proposed regulations, released earlier this month.

Title I Schools Issue

The department’s proposal appears to call for local expenditures to be the same between Title I schools, which receive funding through the federal program to aid disadvantaged students, and non-Title I schools. That could take into account actual teachers’ salaries, some say. It also calls for districts to provide “sufficient” funding to school districts to meet the goals of Title I, which some fear is a lawsuit waiting to happen.

What’s more, advocates for school districts argue that if Congress had wanted funding for salaries to be equal at every school, lawmakers would have made a change to another test that districts must go through before they can tap federal Title I funds: comparability, which calls for resources to be the same between Title I and non-Title I schools.

“Regulations and accompanying guidance should clarify how supplement-not-supplant is separate and distinct from maintenance of effort and comparability, and steer clear of anything that would change or modify any of those provisions beyond the statutory changes already signed into law,” wrote a handful of groups, including the Council of Chief State School Officers and both national teachers’ unions.

On the flip side, Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights, sees the principle behind the department’s proposal differently. She said that if Congress hadn’t wanted to continue to require that federal funds be an extra and not a replacement for local funds, it would have gotten rid of supplement-not-supplant altogether. But Congress kept it.

And she’s not sure how school districts would prove federal funds are an additional benefit using a test that doesn’t track actual funds spent at each school, since the law doesn’t let states use the test under previous versions of the law.

Committee members did not come to a consensus about supplement-not-supplant regulations for ESSA on Friday before Education Week‘s print deadline.

Several committee members expressed concern about possible negative consequences from the proposed regulations, including forcing more teacher transfers and how various budgeting methods at the state and local levels could be distorted. Some also said the proposed regulations went beyond what ESSA requires and would place a burden on districts that ESSA’s authors did not intend.

“My biggest concern is how it’s going to impact the day-to-day operations,” said J. Alvin Wilbanks, the superintendent of the Gwinnett County district in Georgia.

However, others argued that the draft regulations from the department supported the main idea behind supplement-not-supplant to ensure that federal dollars provide additional resources to disadvantaged students.

“I see what it should result in, which is how we should measure compliance,” said Janel George, the senior education policy counsel at the NAACP Legal Defense Fund.

Meanwhile, tests for students in special education also caused headaches. ESSA requires that these tests be given to only 1 percent of students statewide, typically the most severely cognitively disabled students. (That represents 10 percent of students in special education.)

But it sets up a waiver process for states that exceed that cap. The department’s proposed regulations outline a whole list of circumstances under which a state or district can go over the cap—including if there are a lot more students with cognitive disabilities who have gotten the attention of schools and the community.

Too Many Hoops?

Tony Evers, the state superintendent in Wisconsin, thinks a laundry list of hoops for states goes beyond the bounds of ESSA, which, after all, aimed at curtailing the department’s authority. He proposed scrapping some of the requirements, but the panel couldn’t agree on how to limit them, and decided to table the issue.

The panel also decided to hit the pause button on another contentious issue: whether to define what the law means by “severe cognitive disabilities” that could lead students to take alternative assessments. Some on the panel, including Evers, would prefer not to see a definition. A subcommittee met to try to work out an agreement, but could not reach accord on a new definition. The department proposed its own definition, which emphasized, among other things, that students shouldn’t be considered as having severe cognitive disabilities just because of low test scores. The panel decided to table discussion on that proposed definition.

A version of this article appeared in the April 13, 2016 edition of Education Week as ESSA Negotiators Dig Into Regulatory Details

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