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ESSA Rule Negotiators Grapple With Issues of Flexibility, Equity

By Alyson Klein — March 29, 2016 3 min read
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Should advocates, educators, and others writing rules on tests and spending under the Every Student Succeeds Act hew closely to the new law and preserve as much flexibility as possible for states? Or should they use the opportunity of “negotiated rulemaking” to help advance an agenda focused on educational equity?

Those questions undergirded some of the discussion during last week’s negotiated-rulemaking sessions here. The process allows advocates, practitioners, and others to get in a room and hash out proposed rules for parts of ESSA, the new version of the Elementary and Secondary Education Act. If the process fails, which it often does, the U.S. Department of Education will write rules through the regular process.

Importantly, negotiators aren’t considering the whole law—or even what’s arguably the most controversial part: accountability.

Instead, they are fleshing out rules for a highly technical provision known as “supplement-not-supplant” (which deals with how federal dollars interact with local spending). They also are negotiating rules on assessment, which covers a host of testing topics, including computer-adaptive tests, as well as tests for special populations of students, such as students in special education, English-language learners, and more.

Tough to Monitor

The panel, which will reconvene in April, is made up of educators, including a state schools chief, classroom teachers, a nationally recognized district superintendent, and other local leaders. Additional members include advocates for the civil rights community, English-learners, students with disabilities, and others. Members were nominated by the public and selected by the Education Department.

There was a spirited debate on how the regulations should handle language in ESSA that says that no more than 1 percent of all students statewide can take tests intended for those with severe cognitive disabilities.

Some advocates have worried that cap will be hard to monitor district by district. Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights, argued it makes sense to have a definition of the 1 percent cap, in part to deal with that issue.

But Tony Evers, the state chief in Wisconsin, noted that there has long been a 1 percent requirement in the law, without additional parameters. And he suggested the panel refrain from defining “significant cognitive disabilities"—in part so that it sticks as closely as possible to congressional intent.

Another key point in negotiations: What should constitute a “nationally recognized test” that districts could substitute for the state exam when it comes to high school accountability?

Kerri Briggs, the education program officer at Exxon Mobil, who is representing the business community on the panel, said she thinks states should be able to use their best judgment in figuring out what qualifies as a “nationally recognized test.”

Most experts expect that ESSA would allow districts to use the ACT or the SAT, but there’s nothing in the law that requires those tests to be in the mix, said Delia Pompa, a negotiator and senior fellow at the Migrant Policy Institute, a think tank in Washington that deals with issues facing migrants.

She and others voiced concern about the lack of accommodations for students in special education and English-language learners in using those college-entrance tests.

Advanced Courses

Another ESSA provision lets 8th graders who are taking advanced math courses (such as algebra, geometry, or Algebra 2) use a test in that subject for accountability purposes, instead of the state assessment.

In high school, those students must take a test corresponding to the level of math they are in.

The department wants to make it clear that the advanced math tests must meet the rigorous requirements for assessment—and that the state makes sure that all students have the opportunity to pursue advanced math coursework.

While nearly everyone on the panel liked the idea of equitable access to advanced classes, some negotiators were in different places—at least rhetorically—on how far they should go to make it happen.

ESSA, like its predecessor, the No Child Left Behind Act, also calls for states to assess newcomers to the United States in their native language, to get a sense of what they know and can do. Specifically, states must “make every effort” to have native-language tests for any language that a “significant number” of students speak.

But while that requirement had been in the NCLB law, fewer than a dozen states have native-language tests, according to the Education Department.

Pompa would like the department to provide parameters to help states come up with a definition of what constitutes a high-quality test.

A version of this article appeared in the March 30, 2016 edition of Education Week as ESSA Rule Negotiators Grapple With Issues of Flexibility, Equity

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