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Every Student Succeeds Act

Measure to Overturn ESSA Accountability Rules Introduced in Senate

By Andrew Ujifusa — March 01, 2017 3 min read
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A measure to block the Obama administration’s regulations governing accountability under the Every Student Succeeds Act was introduced on Tuesday by Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee. Nine other GOP senators, including Sen. Mitch McConnell, R-Ky., the Majority Leader, joined him.

Senate Joint Resolution 25, if it’s approved, would mean the end of regulations finalized late last year that govern state plans and issues ranging from testing opt-outs to school turnarounds. The House of Representatives approved a similar measure last month. In addition, not long after President Donald Trump was inaugurated in January, his administration paused these regulations.

If the Senate passes Alexander’s resolution and Trump gives the thumbs-up, the Obama-era rules for accountability and state plans would have no force, an alarming prospect for Democrats in Congress and civil rights advocates, who say these regulations include crucial protections for disadvantaged students. However, congressional Republicans and some school groups have supported the move, saying that state K-12 leaders and schools need more flexibility, and that the U.S. Department of Education can still provide nonregulatory guidance and technical assistance to states seeking more clarity or other help with accountability provisions of the law.

“Here is the problem with this rule that was put out by the U.S. Department of Education: the rule specifically does things or requires states to do things that Congress said in our law fixing No Child Left Behind that the department can’t do,” Alexander said in a statement. “In other words, the department’s regulation specifically violates the law. It’s not a matter of just being within the authority granted by the law; we said to the department, ‘You can’t tell states exactly what to do about fixing low-performing schools. That’s their decision.’ This rule does that. And we said to the Department, ‘You can’t tell states exactly how to rate the public schools in your state,’ but this rule does that.”

However, Sen. Patty Murray, D-Wash., is having none of that.

“Rolling back the strong federal guardrails would be a devastating blow to students across the country and would throw state and district planning into chaos at the very moment when they had started to settle into the new law,” Murray said in a statement Wednesday. “If Republicans move forward with this, it’s simply politics and another attempt to give Secretary DeVos a blank check to pursue her anti-public education agenda at the expense of students.”

U.S. Secretary of Education Betsy DeVos hasn’t expressed a clear opinion about these regulations. But she did signal to states that they should consider themselves to be in the driver’s seat as they finalize their plans for ESSA.

If Congress overturns these rules using the Congressional Review Act, the Education Department could take another crack at developing accountability rules for ESSA, but legally they couldn’t be “substantially similar” to what the Obama administration developed. What that means exactly is unclear, since there’s no precedent for Congress overturning these rules for the main federal K-12 law.

But the question of what, exactly, constitutes “substantially similar” could be really important.

Anne Hyslop, a former Obama administration official who worked on the regulations, has pointed out that getting rid of them using the blunt instrument of the CRA could mean more uncertaintly for states as they think through their ESSA plans. What’s more, she noted that the rules actually provide some flexibility for states—when it comes to timelines for their plans, for instance—that ESSA alone doesn’t allow for. (More from Hyslop here).

At least one former Bush administration official, Mike Petrilli, now the president of the Thomas B. Fordham Institute, says he isn’t a fan of all the regulations. But he thinks some of them are worth saving and worries that scrappng them through the CRA could make it a lot harder for the feds to keep the best parts of the regulations. There are other things Republicans can do, he argues, to get rid of the parts they think go beyond ESSA. More from Petrilli here.

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