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Every Student Succeeds Act

Imagine a World With an ESSA Statute—But No Accountability Regulations

By Andrew Ujifusa — February 14, 2017 3 min read
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The possible end of Every Student Succeeds Act accountability rules could have profound consequences for schools around the country.

For much of the past year, state chiefs, district leaders, civil rights advocates, and others focused intently on trying to influence the shape of those rules, issued to govern ESSA state plans and school accountability. Such rules set the timeline for how schools are rated, measuring “consistently underperforming” students, and other key issues.

The U.S. Department of Education under President Barack Obama’s finalized a set of rules last November. But President Donald Trump’s administration hit the pause button on these rules last month. Last week the House voted to overturn them, along with regulations for teacher preparation). (The Senate has yet to take similar action.) And Secretary of Education Betsy DeVos told states in a letter last week that for the most part, they should move full speed ahead with their ESSA plans, and that the two previous deadlines for submitting state plans, April 3 and September 18, under those Obama-era rules would remain.

We explored the potential consequences of ESSA without those rules, and how it’s splitting opinion in the education community, in an article this week. It’s helpful to think about two possible functions of regulations—one more helpful in many circumstances than the latter, said Andy Smarick, a resident fellow at the American Enterprise Institute,

“Regulations, properly understood and properly done, are supposed to help the people and organizations that are going to be influenced by the statute,” Smarick said. But they go too far, Smarick said, when governments use them to try to get states and districts to do specific things that aren’t spelled out in the statute.

Without regulations, state and local officials will just have to show they’re meeting the statute, a much lower legal burden than if they had to meet the more specific elements of regulations from the Education Department.

“The burden is going to be on a department official to prove that a state plan is not consistent with the law,” if Congress overturns the rules and the department doesn’t replace them, Smarick said.

DeVos’ letter did indicate that the department may allow states to work together to develop a template for state plans, through the Council of Chief State School Officers, that pass muster with the department. Her letter does not say whether she and department leaders are interested in creating new regulations for these plans, a process that could easily take several months.

‘You Give the Direction’

It’s not as if the department has absolutely no tools in the garage without these regulations. The department can provide direct technical assistance to school officials. It can also issue non-regulatory guidance (which states and districts can also ignore). But regulations are unique in their importance as a backstop for the department to use, said Anne Hyslop, a former staffer at the Obama Education Department who helped write the regulations and is now a senior associate at Chiefs for Change, a network of state and district education officials.

“I do think the department has the responsibility to make sure that states are compliant with the law and doing a good job in terms of setting up accountability systems and school improvement sytems,” Hyslop said.

The regulations also contain provisions designed to make the development of ESSA plans more open and more transparent to the public, Hyslop noted—if the rules are tossed, so do those transparency provisions.

But others think that the Obama regulations stretched from ensuring legal compliance into something else. Rep. Todd Rokita, R-Ind., who introduced the resolution in the House to overturn the rules, told his colleagues that Obama administration officials, through the regulations, had acted as though schools belonged to them, when in fact states and local communities were the real key decisionmakers for schools.

“In a lot of ways we were saying to the states: You give the direction,” Rokita said on the House floor last week, discussing ESSA’s intent.

But that sentiment is far from solid reasoning for why the rules are bad and should be tossed, said Eric Rodriguez, the vice president for public policy at the National Council of La Raza, which supported the Obama adminstration’s approach to ESSA accountability rules.

“I just don’t see why the Congress would want to interfere with what’s happening in states,” Rodriguez said. “I haven’t heard a lot of complaints about the rules from them.”

The National Conference of State Legislatures has announced its support for the House’s move to overturn the teacher-preparation rules. But we haven’t seen anything from NCSL regarding the accountability rules, one way or the other.