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Every Student Succeeds Act

How Far Should ESSA Negotiated Rulemaking Go On Tests and Spending?

By Alyson Klein — March 22, 2016 4 min read
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Should advocates, educators, and others writing rules on tests and spending under the Every Student Succeeds Act hew very closely to the new law and preserve as much flexibility as possible for states—or use the opportunity of “negotiated rulemaking” (or neg reg for the cool kids) to help advance an equity agenda?

It’s tough to tell where the regulations will end up, but that general philosophical question has undergirded at least some of the discussion during Monday and Tuesday’s negotiated rulemaking sessions here.

Prior to the start of neg reg, the U.S. Department of Education posed questions for each of the topics under negotiation. Those topics are supplement-not-supplant (which deals with how federal dollars replace local spending) and assessment, which covers a whole host of things (including computer-adaptive tests, allowing advanced math tests to count for 8th grade accountability, using “nationally recognized tests” in place of state exams for high school accountability, and tests for special populations of students). More here.

During Monday’s session, some of the discussion on supplement-not-supplant focused on issues that some could argue aren’t covered under that portion of the law, like the fact that teachers who serve low-income students often make less, as a group, than those that work in schools with a wealthier student population. (That point was brought up most prominently by Karen Hawley Miles, the executive director of Education Research Strategies, who is not a negotiator but gave a presentation to help get the panel up to speed on supplement-not-supplant.)

And the theme continued Tuesday, with talk about a provision discussed in neg reg that would allow 8th graders who are taking advanced math courses (i.e. Algebra, Geometry, or Algebra II) to use a test in that subject for accountability purposes, instead of the state assessment everyone else takes. In high school, those students must then take a test that corresponds to whatever level of math they are in—so they might take the Algebra II test while most other students take Algebra I. This something the department had already allowed, through a waiver, before ESSA passed.

The department has proposed adding a twist to make it clear that the advanced math tests must meet the rigorous requirements for assessment—and that the state makes sure that all kids have the opportunity to pursue advanced math coursework.

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

Liz King, the director of education policy for the Leadership Conference on Civil and Human Rights, said, “it would be a shame to miss an opportunity to expand rigorous coursework.”

But Alvin Wilbanks, the superintendent of Gwinnett County public schools in Georgia, worried the proposal might make it harder for districts to offer alternative, advanced classes or tests, just because the whole state can’t make it happen.

“I don’t believe we ought to limit the district and schools that can make this work,” he said.

And Derrick Chau, the director of secondary instruction at the Los Angeles Unified School District, worried the language about access might be going too far beyond the scope of ESSA. “Some of the additional language may be overreaching,” he said.

Tests for Students in Special Education

Meanwhile, there was a spirited debate on how the regulations should handle language in ESSA that says that no more than 1 percent 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.

King 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 without additional parameters. He worried any change could conflict with the main law for special education, the Individuals with Disabilities Education Act.

Some advocates who attended the negotiations are hoping there won’t be any changes to the language in the law on the 1 percent cap.

“We have a delicately balanced compromise as it relates to the 1 percent cap” in ESSA, said Noelle Ellerson, the associate executive director of policy and advocacy for AASA, The School Superintendent’s Association.

In her view, ESSA represents a significant shift in authority and decision-making to the state and local level, and she questions why ESSA would go further than the No Child Left Behind Act, which it replaced, in defining that term.

High School Tests

Another key point in negotiations: What, exactly, should constitute a “nationally recognized test”?

Most folks expect that it could mean the ACT or the SAT—but there’s nothing in the law that requires that, said one negotiator, Delia Pompa of the Migrant Policy Institute. She and others on the panel expressed concern about the lack of accommodations for students in special education and English-language learners in using those tests.

Kerri Briggs of Exxon, a former Bush administration official who is representing the business community on the panel, said she thinks states should be able to use their best judgement in figuring out what a “nationally recognized test” is.

But Evers and King agreed that there should be language in the regulations clarifying that districts that choose a nationally recognized high school assessment should go with the same test for all kids—it shouldn’t vary school to school, or student to student, as it could under a recently enacted Arizona law.