Every Student Succeeds Act

ESSA Panel Hammers Out New Testing Regulations

By Alyson Klein — April 26, 2016 5 min read
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It took eight days, spread over two months, hours of negotiations and countless proposals, but school districts and states finally are getting some certainty about how testing will work under the new Every Student Succeeds Act, thanks to an agreement by a panel of educators, advocates, and officials from the U.S. Department of Education.

But the panel was unable to reach accord on regulations covering 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 on the spending issue 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 on the topic amounts to an attempt to rewrite the law.

The agreed-to regulations on testing that came out of the process known as “negotiated rulemaking” have yet to become final. The Education Department will still need to publish them in the Federal Register and get comments. There still could be minor tweaks.

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 cap.

State to Set Definitions

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 those definitions, 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 definitions.

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 on the panel, especially Lynn Goss, a paraprofessional representing the National Education Association, weren’t fans of that provision because it would make getting a waiver harder on states with high-opt out rates. 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. Hager likes the parameters states must consider in coming up with their definitions, even though he wishes that the panel could have set “an enforceable definition” for every state.

So does 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, and the common-core-aligned PARCC and Smarter Balanced are contenders, however.) And the compromise made it clear that states are responsible for providing special education students 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.

The Education Department will still need to publish these regulations in the Federal Register and get comments before they are truly final.


On the spending issue, 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 versus 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.

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

“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.”

‘Disrupting Inequity’

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.”

With the panel’s failure to reach agreement, the ball is now in the Education Department’s court. The discussion has informed the department’s view of supplement-not-supplant, said Dorie Nolt, a spokeswoman. “The department will continue to take their input into account as we move forward with the regulatory process,” she said.

A version of this article appeared in the April 27, 2016 edition of Education Week as ESSA Panel Hammers Out New Regulations on Testing


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