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Every Student Succeeds Act

Five Things to Ponder for Negotiations Over ESSA’s Testing Regulations

By Alyson Klein — March 16, 2016 5 min read
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Soon, a team of education practitioners and advocates will spend at least a half-dozen eight-hour days at the U.S. Department of Education, hashing out the rules under the Every Student Succeeds Act for supplement-not-supplant (a spending issue that Andrew wrote about here) and assessment (aka testing and tests).

The process, which is known as “negotiated rulemaking,” requires the department to sit down with folks in the education community and flesh out sometimes vague or unclear language in the law.

To be sure, assessment, and supplement-not-supplant are not the main events when it comes to ESSA regulation. In fact, if the new law is Thanksgiving dinner, these are the hot rolls and maybe the green bean casserole. Accountability, the turkey-and-stuffing of ESSA, will be dealt with through the regular rulemaking process.

So why is the department going through negotiated rulemaking on just these issues? Because it has to, under ESSA. The process is mandated in the law for supplement-not-supplant and assessment, but not for accountability. If the process of regulating on supplement-not-supplant and assessment fails, the department will use the normal regulatory process for those pieces of the law—it just has to try negotiated rulemaking first.

The negotiated rulemaking process, though, could become a big forum for civil rights groups, practitioners, and others to talk about the biggest issues in ESSA, even the ones that aren’t going to be on the table. Plus, even though the assessment questions the committee will consider aren’t as central to the law as many of the accountability provisions.

So what are some things to watch on assessment in the negotiated rulemaking?

1. The absence of some of the law’s most interesting wrinkles on testing: Among the topics that won’t be part of negotiated rulemaking are the brand-new “innovative assessment” pilot, in which select states can try out new kinds of tests in a handful districts, as New Hampshire is doing now, with the goal of these approaches eventually going statewide. If the department decides to regulate on that pilot, it will do so through the regular process. Also, not up for negotiation, opt-outs: ESSA’s language on test participation is tough to wrap your mind around. The law keeps in place a requirement under the No Child Left Behind Act that 95 percent of students participate in standardized tests. But schools that miss this target aren’t seen as automatic failures, as they were under NCLB. Instead, states get to decide how test participation fits into their accountability systems. If the department decides to clarify that, which many folks want it to do, it will be done through another part of rulemaking.

2. "Nationally recognized test,” a phrase that sounds cut-and-dried but actually isn’t: While rules for the local assessment pilot won’t be negotiated, rules for another local testing provision will be. Under ESSA, states can allow districts to use a “nationally recognized” test, instead of the state’s assessment, for accountability purposes. It seems that the ACT and SAT are likely to be viewed as nationally recognized tests—but what about other assessments, like the California Achievement Test or even the Measures of Academic Progress (which is an interim test, more on that below)? Could a large testing company come up with another high school test districts could opt for? This particular regulation could have big implications for the testing industry, as well as school districts.

3. Important provisions for special populations of students: The ESSA proposed regs will likely touch on testing issues for English-language learners and students in special education. For instance, the negotiators will have to figure out just how the new 1 percent statewide cap on tests for student with severe cognitive disabilities will work—how do you monitor that on a district-by-district level? What’s more, the department has asked regulators to consider how states could fulfill the requirement of making “every effort” to ensure they offer tests in a language other than English if “a significant number” of students in the state speak it. (One smart question posed by Marianne Perie, the director of the Center for Educational Testing and Evaluation at the University of Kansas, is how that requirement would jibe with English-only laws, which are on the books in Georgia and other states.)

4. Language on interim assessments: ESSA allows states to offer a series of interim assessments to count for accountability purposes, instead of one big summative test. That will be part of the negotiated rulemaking even though the department didn’t put out a separate issue paper on it. The department suggested some language on this issue—essentially it wants these assessments to be valid and reliable. Scott Marion, the executive director for the Center on Assessment, found the proposed regulations a bit vague. “I hope they are planning on more detailed guidance to tell folks what’s allowed and not!,” he wrote in an email.

But Ellen Forte, the CEO of edCount, a Washington-based consulting firm, said she isn’t sure states are going to be jumping up and down to use these. Curriculum in districts can vary significantly within a state, so it could be tough for all kids to be on the same page at the same time, she said.

5. Computer-adaptive testing could be key: The department wants to know if ESSA makes it clear that states will still need to report whether students taking these tests are meeting grade level standards. After all, if tests focus just on whether students are making some incremental progress, students could graduate from high school without being prepared for college or a job. This is one of the areas where the department offered proposed language, and it’s aimed at providing clarity on that issue. Perie, for one, is hoping that computer-adaptive tests will be able to pinpoint not just whether or not students are meeting grade level standards (for accountability purposes) but where exactly they are if they are not on grade level (for instructional purposes). “The key is good information about ALL students,” she wrote in an email.