Two things were clear Wednesday after the first negotiated rulemaking session since the U.S. Department of Education put out draft regulations for the Every Student Succeeds Act on testing and supplement-not-supplant (a wonky funding issue that’s stealing all the headlines on this wonky process).
First off, anyone who bet that what’s known as “neg reg” was going to be quick and smooth sailing lost their money. There’s a good chance the committee will have to convene for an optional third multi-day session later this month, or may not reach agreement at all. (If that happens, the department will write its own regs, through the typical process. Unlike under the typical process, however, Congress would get to review them before they take effect.)
The committee didn’t settle on any regs during a long negotiating session Wednesday morning. And its members didn’t spend a lot of time talking about issues that such as supplement-not-supplant that are arguably among the most controversial pieces.
Even some of the negotiators, including Tony Evers, the superintendent in Wisconsin, expressed dismay at the sluggish pace of the discussions. And he worried that some of the department’s proposals could violate Congress’ intent in writing the law (more on that below.)
Secondly, that doesn’t mean the negotiators aren’t making any progress at all. The discussion remained collegial and collaborative (and very, very in the weeds).
Some flavor of the conversation: The committee of educators, advocates, and experts had an interesting discussion on how testing waivers for students taking advanced math classes should work. ESSA allows middle school students who are taking tougher math classes, like Algebra or Geometry, to be tested in those subjects for accountability. The department proposed regulatory language for the committee to consider that would call for states that want those waivers to show that all kids have access to advanced math courses and are prepared to take them.
A big question: Is it fair to ask states to ensure equitable access to advanced courses in regulation? Or should that be in guidance? Alvin Wilbanks, the superintendent of Gwinnett County public schools in Georgia, seemed to think that guidance was the right place for that, not regulations, which carry legal force.
Also there was a long and robust discussion of when states must offer assessment in languages other than English to students who aren’t yet English-proficient. The department suggested in proposed regulations that states should aim to offer tests in any language that’s spoken by 30 percent of ELLs or more. But Rita Pin Ahrens of the Southeast Asia Resource Action Center worried that would miss a lot of kids in a big state like California, where a big number of students speak say, Vietnamese, but may not be 30 percent of ELLs. (CORRECTION: I initially attributed Pin Ahrens’ quote to Delia Pompa of the Migration Policy Institute. Thanks to Pompa for setting me straight!)
But Derrick Chao, a school board member from Los Angeles, said that being too explicit about what kinds of languages assessments must be offered in could hinder local districts’ efforts to advocate for themselves.
And later, a subcommittee trying to hash out a definition for students with “severe cognitive disabilities” announced that they hadn’t been able to come up with an agreement, but they were able to come up with some principles. More from Christina Samuels on this issue.
Meanwhile, supplement-not-supplant is still the toughest issue on the table, and the negotiators aren’t likely to get to it until much later in the three-day session. (The issue is the primary topic of side conversations in the room where the negotiations are taking place.)
Why all the disagreement? Short version: Under ESSA, Congress gave states more flexibility to meet the long-standing requirement that federal funds are an extra for Title I schools, and not a substitute for local dollars. States and districts need to come up with some kind of methodology to meet the requirement, and the feds can’t dictate what process or test they use.
But the department wrote a proposed regulation ahead of the session that calls for states to provide equal funding for students in Title I and non-Title I schools, which some advocacy organizations—including the Council of Chief State School Officers, groups representing local and state superintendents and school board members, and both teachers’ unions—worry would essentially require all districts to use what’s known in wonky circles as an actual expenditure test. Those advocates see the language as a violation of congressional intent, since Congress was going for more flexibility here, not less, in their view. Plus some folks privately worry that such a test could inject actual teachers’ salaries into the mix when districts are comparing school-by-school expenses—a prospect that makes advocates for states and districts very nervous.
What’s more the proposed regulations call for state and local funding to be “sufficient” to meet the requirements of Title I, the part of the law that calls for students to have equal access to good education, no matter where they live. There’s an argument to be made that this would truly ensure equitable resources for disadvantaged kids, but some folks expect that could open the door to lawsuits if funding isn’t equitable. (Want more? Andrew broke it all down for you, with some great analysis here.)