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Lawmakers Announce Preliminary Agreement On ESEA Rewrite

By Alyson Klein — November 13, 2015 11 min read
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It’s official: Sen. Lamar Alexander, R-Tenn., Sen. Patty Murray, D-Wash., Reps. John Kline, R-Minn., and Bobby Scott, D-Va., on Friday announced that they have a framework for moving forward on a long-stalled rewrite of the Elementary and Secondary Education Act.

The next step: a conference committee, which could kick off in coming days. The agreement will set the stage for that process. The goal is to pass a bill to revise the ESEA—the current version of which is the No Child Left Behind Act—for the first time in 15 years, by the end of 2015.

Here is the lawmakers’ statement:

We believe we have a path forward that can lead to a successful conference, and that is why we are recommending to our leadership to appoint conferees to take the next step in replacing No Child Left Behind," the lawmakers said. "Because of the framework we've developed, we are optimistic that the members of the conference committee can reach agreement on a final bill that Congress will approve and the president will sign."

In July, the U.S. House of Representatives (barely) passed its own GOP-only bill, and the U.S. Senate overwhelmingly passed a bipartisan bill. Aides and lawmakers have been working overtime behind the scenes

to reconcile the two versions.

It seems likely that the Senate, which largely embraced a very similar bill, would be able to pass legislation that looks a lot like the framework. A big question is what will happen in the more conservative House, where the proposal will almost certainly need Democratic support to get over the finish line.

Overall the framework, “is not what I would have chosen in a perfect world,” said Frederick Hess, the director of education policy at the American Enterprise Institute. But he added, “it’s clearly a profound improvement over the status quo and if this does not make it through it’s not like a better, leaner alternative is going to get enacted.”

The deal, he said, has the potential to get big bipartisan support in both chambers. But it could divide Republicans in the House, he said, where a new speaker, Rep. Paul Ryan, has just stepped up to the plate. (More on the dynamics in the House below.)

Contours of a Compromise

Overall, everyone walked out of the negotiations with his or her biggest priority intact, an aide said.

“Everybody has a lot to be happy about,” said a GOP aide who participated in the process.

The proposal on the table takes a little bit from all sides, while rolling back the federal footprint on K-12 education more than nearly anyone would have imagined possible back when the current version of ESEA, the No Child Left Behind Act, passed in 2002. (For context, Congress hasn’t approved a reauthorization that took aim at the federal role since the early 1980’s.)

And U.S. Secretary of Education Arne Duncan—who has flexed his executive muscle on K-12 more than any other secretary in history—had kind words for the lawmakers who negotiated the agreement.

“It is good news for our nation’s schools that Congress is taking the next step forward toward a serious bipartisan plan to revamp the outdated No Child Left Behind law,” Duncan said in a statement. “America’s students deserve a bill that increases educational opportunity for all and lives up to the civil rights legacy of the original Elementary and Secondary Education Act. We are encouraged that Congressional negotiators appear to be moving toward a framework that accomplishes those goals.”

It’s true that the “framework” goes further on accountability than either the House or Senate versions of the legislation. It borrows some provisions from the Obama administration’s ESEA waivers, including a requirement that states identify and take action in their lowest-performing schools and drop-out factories.

And it includes stronger language when it comes to accountability for poor and minority students, including a requirement that states identify schools where those students are struggling. It also includes a new early childhood education program, a big priority both for the Obama administration and Murray.

But it also would consolidate a number of smaller programs into a block grant, a big priority for Kline. And it would take direct aim at what Alexander has called the “National School Board” by prohibiting the education secretary from interfering with state prerogatives on teacher evaluation, testing, standards, school turnarounds, and more.

That part of the bill seems to be a direct rebuke to Duncan, who has used waivers to push big changes, especially when it comes to teacher evaluation.

Importantly, the agreement isn’t the final word. But it will provide an important jumping off point to help the conference go smoothly.

So what’s in this preliminary framework? We brought you the details, Thursday night and earlier Friday, before the official announcement.

Here are the specifics, based on conversations with multiple sources and confirmed by a GOP aide:

On Accountability

The compromise uses the Senate bill as a jumping-off point here. Quick refresher: That means states would still have to test students in grades 3-8 and once in high school in reading and math. But states would get to decide how much those tests count for accountability purposes. And states would be in the driver’s seat when it comes to goals for schools, school ratings, and more.

States would be required to identify and take action in the bottom 5 percent of schools, and schools where less than two-thirds of kids graduate.

States would also have to identify and take action in schools where poor and minority students, as well as other “subgroup” students are struggling. But importantly, the bill doesn’t say how many of those schools states would have to pinpoint, or what they would have to do to ensure that they are boosting their achievement—the bill allows state leaders to figure all that out.

On Opt-Outs

The bill largely sticks with the Senate language, which would allow states to create their own testing opt-out laws (as Oregon has). But it maintains the federal requirement for 95 percent participation in tests. However, unlike under the NCLB law, in which schools with lower-than-95 percent participation rates were automatically seen as failures, local districts and states would get to decide what should happen in schools that miss targets. States would have to take low testing participation into consideration in their accountability systems. Just how to do that would be up to them, though.

Early drafts of the ESEA legislation looked complicated on accountability, one advocate said.

“Based on what I’ve seen, for the next [education] secretary, interpreting the new law will be like looking at a Rorschach with one eye closed and with both hands tied behind their back,” said Charlie Barone, the policy director at Democrats for Education Reform, who served as an aide to Rep. George Miller of California, the top Democrat on the House education committee, when NCLB was written.

But that complexity could actually be a boon to state and local control, especially since the compromise includes nearly all of the restrictions on the secretary’s authority that were in the House and Senate versions, a GOP aide said.

“The complexity helps,” said a GOP aide. The agreement “leaves a lot of this to states to figure out and the secretary’s ability to interfere with those state decisions is astonishingly limited.”

On Programs

It’s largely a win for Kline here. There’s more consolidation of federal education in the compromise than there was in the Senate bill, including block granting of physical education, mathematics and science partnerships, and Advanced Placement. In fact, about 50 programs are included in the block grant, some of which, like education technology, haven’t seen much funding federal in years.

Some programs will live on as separate line items, including the 21st Century Community schools program, which pays for afterschool programs and has a lot support on both sides of the aisle.

Murray got the early childhood investment she wanted. But the new program will be housed at the Department of Health and Human Services, not the Education Department as some Democrats had initially hoped. The Education Department will jointly administer the program, sources say. (The move to HHS helped win Kline’s support.)

That new research and innovation program that some folks were describing as sort of a next generation “Investing in Innovation” program made it into the bill. (Sens. Orrin Hatch, R-Utah, and Michael Bennet, D-Col., are big fans.)

So did a wrap-around services program that shares some DNA with both Promise Neighborhoods, as well as a community schools program that Rep. Steny Hoyer of Maryland, the second-ranking Democrat in the House, really likes. (Hoyer’s support was critical to the survival of that program.)

On School Choice

No Title I portability—that means that federal funds won’t be able to follow the child to the school of their choice. But the bill does include a pilot project allowing districts to try out a weighted student funding formula, which could also essentially function as a backpack of funds for kids. (More details on that coming soon.) UPDATE: The program would allow fifty districts to combine state, local, and federal funds into a single pot that could follow a child to the school of their choice. It is said to be a more workable alternative to Title I portability, which looked more dramatic on paper, but which few states would likely have taken advantage of because of its complexity, experts said. But importantly with this pilot, participation would be entirely up to district officials. And the language would give them a chance to better target funds to individual school needs.

Other Funding Issues

No changes to the Title I funding formula along the lines of what the Senate passed that would steer a greater share of the funds to districts with high concentrations of kids in poverty. But there were some changes to the Title II formula (which funds teacher quality) that would be a boon to rural states.

There was some chatter that the bill would also incorporate changes to the Family Educational Rights and Privacy Act. That’s not part of the agreement.

UPDATE: The framework would only “authorize” ESEA for four more years, as opposed to the typical five, two sources who had been briefed on the bill said. That gives lawmakers a chance to revisit the policy under the next president, should they choose to do so. And its overall authorization levels are largely consistent with the most recent budget deal.

So what’s the timing? Expect the conference to kick off next in the middle of this week and conclude by Thursday. And expect the bill to be on the floor of both chambers after Thanksgiving recess. That will give enough time for rank-and-file lawmakers to read it and make sure they understand what’s in it before they have to vote on it.

At least thirty House Republicans, led by Rep. David Reichert of Washington, made it clear yesterday that they want to get this ESEA show on the road already. The lawmakers, who include former education committee members like Rep. Duncan Hunter of California, sent a letter to the conferees just as the preliminary deal was announced, saying they’d really like to move forward on ESEA.

So what’s the early reaction? The National Education Association says it’s glad to see the preliminary progress, but notes that we’ve got a ways to go in terms of process.

“Today we are a step closer to rewriting a federal education law that commits America to the success of every student regardless of ZIP code,” said Lily Eskelsen Garcia in a statement. “While we welcome this progress, our work is not done. We look forward to working with the congressional conference committee members to ensure that we produce a bill that, when signed by the president, gives every student the opportunity, support, tools, and time to learn.”

Meanwhile, Michael Petrilli of the Thomas B. Fordham Institute applauded the deal for giving Washington less power over key decisions.

“The bill will turn significant authority back to the states, where, under our Constitution, it belongs. This will take the federal boogeyman off the backs of education reformers nationwide, and will put governors and state legislators back in the driver’s seat on accountability, teacher policy, and much else,” Petrilli said in a statement. “Yet the bill also maintains important transparency provisions, especially the requirement for annual testing in grades 3 through 8, so that parents and the public can continue to get key performance information by which to know whether schools are improving and serving all students well.”

Kris Amundson from the National Association of State Boards of Education said that while NCLB might end soon, its purpose should live on in the next ESEA reauthorization.

“It’s going to place tremendous responsibility on states to ensure NCLB’s commitment to educating every child,” Amundson told me in an interview.

And Chris Minnich, the executive director of the Council of Chief State School Officers, agreed the proposal strikes the right balance.

“This progress is critical to creating a long-term, stable federal policy that gives states additional flexibility, while at the same time holding us accountable for results,” he said in a statement.

But Neal McCluskey of the Cato Institute dislikes how the deal would direct more resources to “largely impotent” early childhood programs. And he doesn’t like the potential bureaucratic nightmare he thinks the deal could lead to. And the Heritage Action Fund, a conservative group which helped kill an earlier version of the House bill in March, is also unhappy.

Just in case you want to take a stroll down memory lane, here were the key points of the House and Senate bills that started these negotiations, along with key policy areas and points of conflict:

Related Stories

Red Flags on the Road to ESEA Rewrite

ESEA Rewrite: A Preconference Cheat Sheet

Photos, from top

U.S. Sen. Lamar Alexander, R-Tenn., center, chairman of the Senate education committee, talked with staff members as the committee prepared to mark up a proposed reauthorization of the Elementary and Secondary Education Act earlier this year. --T.J. Kirkpatrick for Education Week

Senate Budget Committee Chairwoman Patty Murray, D-Wash., announced an agreement in 2014 on a budget agreement with former House Budget Committee Chairman Paul Ryan, R-Wis. --J. Scott Applewhite/AP

Rep. John Kline, R-Minn., the chairman of the House education committee, scored some victories with the consolidation of some federal education programs. --Evan Vucci/AP-File

Official House of Representatives Portrait of Rep. Bobby Scott, D-Va.

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Andrew Ujifusa, Assistant Editor contributed to this article.