Congress has voted to get rid of the Obama administration’s accountability regulations for the Every Student Succeeds Act. And that’s opened a bunch of questions about the state of play for the new education law.
We have answers—both to your wonky questions and the ones you were too embarrased to ask.
Is ESSA still on the books?
Yes. Lawmakers did NOT repeal the Every Student Succeeds Act, they just voted to repeal a particular set of regulations issued under that law, which is actually the latest version of a much older law, the Elementary and Secondary Education Act.
To repeat: ESSA is still the law of the land. Congress isn’t supposed to even think about replacing it until around 2020 at the earliest. And a new law could take longer than that. Sen. Lamar Alexander, R-Tenn., an ESSA architect, thinks ESSA could be around for decades.
So what did lawmakers just vote on, then?
Congress used a mechanism called the “Congressional Review Act,” or CRA for short, to target just one set of regulations written by the Obama administration, although they were arguably the most important set.
These regulations dealt with “accountability” under ESSA—a broad bucket that encompasses state plans for implementing the law, timelines for when different parts of those plans needed to go into effect, procedures for crafting plans to turn around low-performing schools and more. The regulations even included a form or “template” for states to use in developing those plans. All of that is now, technically, toast. The new secretary of education, Betsy DeVos can write her own regulations, but they can’t be “substantially similar” to the old, Obama-era ones. (We wrote more about what “substantially similar” could mean and who gets to define it here.)
What about other ESSA regulations?
The Obama administration wrote four sets of regulations for ESSA. And, believe it or not, the most controversial ones weren’t even the accountability regs that Congress just tossed. They were a set of regulations on a spending provision of the law called “supplement-not-supplant.” (More on those here). The Obama administration knew that those regulations, which the civil rights community loved and Republicans in Congress hated, were certain to be scrapped by Trump and Company. So, after the election, it decided not to even make them final, effectively killing them before Team Trump and Republicans on Capitol Hill had a chance.
There are two other sets of Obama-written regulations for ESSA, both of which went into effect quietly in January and remain on the books, although it is unclear how the Trump administration will approach enforcement.
One set, which was created through a long, labor-intensive process called “negotiated rulemaking,” deals with testing under the law, including assessments for students in special education, English-language learners, a new provision that allows districts to use the ACT or SAT instead of their state test for high school accountability, and more.
The other set is the “Innovative Assessment Pilot.” This governs a part of the law that allows states to try out new forms of tests in a handful of districts before taking them statewide.
So what else was in those ESSA accountability regulations being scrapped?
The regulations headed for the trash can provided clarity on parts of the law that were confusing, with an eye to beefing up protections for historically overlooked groups of kids, according to the Obama administration.
One key example: Just like the No Child Left Behind Act, ESSA requires states to test 95 percent of their students. Under the NCLB law, schools that didn’t meet that threshold automatically failed to make “adequate yearly progress,” or AYP. Under ESSA, there’s no such thing as AYP. So states get to decide how to factor test participation into a school’s overall rating. Essentially, states get to figure out if having a lot of students who opt out of the tests is a big deal, or not such a big deal.
The Obama administration wanted schools to take the testing participation requirement in the law seriously, so that states, districts, and educators could have data on how English-learners and students in special education were doing relative to their peers. So it used the now-dead-in-the-water regulations to call for states to take pretty dramatic actions for schools that didn’t meet the 95 percent threshold. The choices laid out in the regs included lowering the school’s overall rating or putting it on a list of schools deemed in need of improvement. The Obama regulations also allowed states to use their judgement, putting in harsher penalties for a school that had a really high opt-out rate vs. one that didn’t quite hit the 95 percent participation threshold. Some Republicans, including Alexander, thought this went beyond the bounds of the law.
Now that the regs are being killed? We go back to ESSA, as it was written originally. Schools still must test 95 of their kids. But their state gets to decide what happens if they don’t meet that target.
More on just what was in the scrapped regulations, as opposed to the still-in-place law in this blog post by Anne Hyslop, who helped write the regs when she worked at the U.S. Department of Education. Hyslop is now at Chiefs for Change.
What will the Trump team do now to help states implement the law? Or is that Congress’ job?
It’s technically up to the Education Department to figure out the next steps. Officials essentially have two choices 1) Write brand new regulations that aren’t “substantially similar” to the ones that just got nixed. That process could take months, or 2) Put out guidance for states, which is a lot faster, but doesn’t have the same legal force. Chris Minnich, the executive director of the Council of Chief State School Officers, is in favor of that second option because states are ready to get rolling with the new law. And state plans are slated to start coming in to the feds just three weeks from now.
The Trump team hasn’t said yet, one way or the other, whether it plans to re-regulate. But DeVos is slated to release new guidelines Monday explaining what needs to be in state plans.
How does all this impact states?
The official line from states is that they are undeterred by all the drama on Capitol Hill and are moving full speed ahead on ESSA implementation in a way that works for them and their “stakeholders,” thank you very much. (More here.) The first of two deadlines for submitting plans to the Education Department is just around the corner, April 3. Seventeen states have told the department they are shooting for that deadline.
And speaking of deadlines: A big part of the regulations that Congress killed was setting deadlines for the law’s implementation. Under the ESSA guidelines, states were supposed to have their new accountability plans in place for the 2017-18 school year, but they didn’t have to identify the bottom 5 percent of schools in their state or schools with really low grad rates for “comprehensive improvement” under the law until 2018-19. And they didn’t have to identify schools with low-performing subgroups of students for “targeted improvement” until the 2019-20 school year. Now, we’ll need new deadlines, and it will be up to DeVos and her crew to provide them.
Also, even though the department will be getting a bunch of plans from states soon, there aren’t many people around from Team Trump to work on the process of reviewing them. The Trump administration still hasn’t filled top policy jobs—like the assistant secretaries of elementary and secondary education or policy, evaluation, and planning.
Want more? I spoke with Noelle Ellerson Ng, the associate executive director for policy and advocacy at AASA, the School Superintendents Association, on Facebook Live Friday. She gave me the district perspective on Congress’ latest move. Watch here:
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