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Senate Passes ESEA Rewrite With Big Bipartisan Backing, 81-17

By Lauren Camera — July 16, 2015 12 min read
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For the first time since 2001, the U.S. Senate Thursday passed a sweeping overhaul of the Elementary and Secondary Education Act, the country’s federal K-12 law, which if enacted would significantly roll back the role of the federal government in public education and give states more flexibility in the process.

The legislation, the Every Child Achieves Act, proved a rare example of bipartisan politicking, with co-authors Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., carefully ushering the measure through the amendment process and floor debate with little to no drama. In the end, they held their caucuses together to pass the bill, which would overhaul the law now known as the No Child Left Behind Act, with overwhelming support from both sides of the aisle, 81-17.

“Consensus among experts is not easy, but consensus is necessary in the U.S. Senate if we’re going to deal with a complex problem like this, and that’s exactly what we did,” Alexander said. “We found a consensus not only on the urgent need to fix the law, but also on how to fix No Child Left Behind.”

Murray relayed similar sentiments. “I’ve been very glad to work with Chairman Alexander on our bipartisan bill,” she said. “It gives states more flexibility while also including federal guardrails to make sure all students have access to a quality education.”

The legislation’s passage in the Senate marks a crucial step in getting a bill to the president’s desk. With the U.S. House of Representatives already having passed its Republican-backed ESEA rewrite last week, the two chambers can now begin working on conferencing their dueling reauthorization bills.

And dueling it will be, as the two proposals contain some stark policy differences.

Alexander said he’s had “numerous” conversations with Rep. John Kline, R-Minn., the chairman of the House education committee and author of that chamber’s bill.

“We’re on parallel paths,” Alexander said. “We know better than to try to make our institutions do exactly the same thing, but ... our bills are not that different.”

He predicted they’d be able to get a bill to the president’s desk in the fall, and added: “There are some important differences and we will have to work those out. But our goal is to produce a conference report and send it to the desk of [President Barack] Obama in a form he will be comfortable signing.”

Similarly, Murray said she’s been in close contact with Rep. Bobby Scott, D-Va., the ranking member of the House education committee, and looks forward to the conference process.

“It’s not the bill I would have written on my own, and I’m sure it’s not the bill Chairman Alexander would have written on his own,” Murray said about the Senate reauthorization. “But it’s not the last opportunity we’ll have to work on this bill.”

The conference process, which Alexander said would begin as soon as possible and likely last several weeks, represents the most serious reauthorization attempt since Congress last overhauled the law in a post-9/11 bipartisan moment more than 14 years ago.

Since then, states have been operating under the NCLB law, the current iteration of the ESEA that lawmakers on both sides of the aisle admit is a broken law. Getting a new reauthorization across the finish line would not only free states from some of NCLB’s most burdensome requirements, it would also notably untie more than 40 states from commitments they made upon receiving an NCLB waiver from the administration.

Pillars of the Senate Bill

The Senate reauthorization would eliminate the current accountability system, known as adequate yearly progress, and allow states to create their own systems instead.

The proposal would maintain the annual federal testing schedule, every year in math and reading in grades 3 through 8 and once in high school, and grade-span testing in science. But it would also provide some flexibility on testing through a limited pilot program that would allow states and school districts to develop innovative assessments.

Importantly, the bill would maintain the requirement that states report disaggregated data for subgroups of students, which is the only provision of the current NCLB law that lawmakers on both sides of the aisle agree is beneficial in highlighting achievement gaps.

As for low-performing schools, the bill would require states identify them, but wouldn’t be specific about how many schools states need to target or what those interventions should look like, though the proposal would maintain a dedicated funding stream for school improvement efforts.

The overhaul would require states to establish “challenging academic standards for all students,” but prohibit the federal government from playing a role in the process of states choosing standards, and specifically prohibit it from pushing the Common Core State Standards.

In addition, the Senate bill would eliminate the NCLB waiver requirement that states develop and implement teacher-evaluation systems, though it specifies that they can it they want to.

Finally, it would list early-childhood education as an allowable use of funding for a broad swath of programs in the ESEA.


Throughout the floor debate, senators from both parties lauded the additional flexibility the Senate ESEA rewrite would provide states and local school districts to design their own accountability systems. But many Democrats took to the chamber floor to argue that the proposal wouldn’t provide enough safeguards for the country’s most disadvantaged students.

We must be careful, Sen. Cory Booker, D-N.J., said on the Senate floor Wednesday, that “as the pendulum swings away from the problems of No Child Left Behind that we do not create new ones that cut against the very ideals [for which] this legislation was put in place.”

Particularly, they argued that the bill wouldn’t hold states accountable for the lowest-performing schools or when subgroups of students weren’t hitting state-designed goals—concerns also shared by the White House, a broad coalition of civil rights groups, and the Council for Chief State School Officers.

But the Senate rejected an amendment offered by a group of Democrats, including Booker, aimed at beefing up accountability.

Among other things, the amendment would have required states to establish measurable state-designed goals for all students and separately for each of the categories of subgroups of students. It also would have required states to intervene in their lowest-performing 5 percent of schools and those that graduate less than 67 percent of their students.

Democrats knew they wouldn’t have the votes to pass the amendments, but their priority was to cobble together the support of 35 or more Democrats to make it clear that strengthening accountability is a top priority going into conference.

When timing on the vote expired, they had won over 42 as well as Sen. Rob Portman, R-Ohio.

The vote count was somewhat of a victory for them because along with the dozen or so Republicans they anticipated voting against the bill no matter what, they’d be able to block final passage of a conferenced bill should it not include stronger accountability language.

School Choice

But just as Democrats will push during conference for greater accountability and safeguards for disadvantaged students, Republicans will dig in their heels to support provisions that would hand over even more control to state and local school districts and give parents and students even more say over their education.

Unlike the House ESEA reauthorization, the Senate measure would not allow Title I dollars for low-income students to follow them to the school of their choice, a policy known as portability.

In fact, during the floor debate, the Senate rejected two versions of Title I portability, one from Alexander that would have given low-income students a $2,100 voucher to use at the public or private school of their choice, and another from Sen. Tim Scott, R-S.C., that would have allowed Title I money to follow students to the public or private school of their choice.

“Providing more education options is the right path forward for us to make sure every child everywhere experiences their full potential,” said Scott on Tuesday. “Giving states the ability to provide portability for Title I dollars ... is the kind of reform our kids deserve, it’s the kind of reform our kids need.”

The White House and Democrats have said portability language is a non-starter for them, but the issue could prove a bargaining chip for stricter accountability provisions.

Republicans would also like to see a final bill that protects students’ ability to opt out of mandated tests without their schools and states being penalized by the U.S. Department of Education. Current law requires that schools test at least 95 percent of their students or else face potential monetary sanctions.

Language in the House bill would eliminate the 95 percent requirement, but such a provision is not included in the Senate bill.

Early Reaction

U.S. Secretary of Education Arne Duncan applauded the Senate’s passage of the ESEA rewrite.

He particularly touted provisions in the bill that would give states more flexibility from NCLB’s “one-size-fits-all federal mandates” and those that would reduce the burden of testing on classroom time. Duncan also cheered language in the bill that would increase access to preschool.

But he cautioned that the bill does not include enough protections for the most disadvantaged students.

“This bill still falls short of truly giving every child a fair shot at success by failing to ensure that parents and children can count on local leaders to take action when students are struggling to learn,” Duncan said.

“We need to identify which schools work and which ones don’t, so we can guarantee that every child will have the education they need,” he continued. “We cannot tolerate continued indifference to the lowest performing schools, achievement gaps that let some students fall behind, or high schools where huge numbers of students never make it to graduation.”

The two national teachers’ unions also touted the bill’s passage.

“This bill reflects a paradigm shift away from the one-size-fits-all assessments that educators know hurt students, diminish learning, and narrow the curriculum and that they fought to change,” said National Education Association president Lily Eskelsen Garcia.

But American Federation of Teachers president Randi Weingarten took a more cautious tone.

“It sends a powerful message that equity really matters and that schooling must be more about teaching and learning than testing and measuring,” she said in a statement. “More must be done to address the needs of historically disadvantaged children, but this bill offers a significant piece of the puzzle.”

The Council for Chief State School Officers gave the Senate bill its seal of approval as well.

“States need a stable federal policy,” said Chris Minnich, CCSSO executive director. “The Senate’s approval of the Every Child Achieves Act is an important step toward delivering that stability and an example of what can happen when we work together in a bipartisan way.”

The civil rights community, however, slammed the Senate bill and argued that it doesn’t go nearly far enough when it comes to accountability for low-income students and racial minorities.

In fact, some civil rights groups, including the Mexican American Legal Defense Fund, went so far as to say that they’d rather stick with the current, admittedly flawed NCLB law, and the Obama administration’s waivers rather than give up on ESEA’s identity as a civil rights law.

In an interview after the final passaged of the bill, Alexander acknowledged that discrepancies over accountability exist but reiterated his commitment to getting a bill to the president’s desk.

“I’ll need to be convinced,” he said when asked about the prospects of increasing safeguards during the conference process. “My goal and the goal of the bill is to keep the important measures of accountability—keep the report cards, keep the tests—so we’ll know how the children are doing, but turn over what to do about the tests and the accountability for getting a result to the states and local school boards.”

“I think that’s real accountability,” he continued. “The president would like to have more federal involvement in that accountability process. I understand that. We’ll just have to discuss that.”

Additional Amendments Considered

Before the final passage of the Senate reauthorization, members considered several amendments Thursday morning, passing a dozen via voice vote and three by roll call vote, including a divisive proposal from Sen. Richard Burr, R-N.C., that would alter the Title I funding formula.

The Senate also rejected three amendments, including one from Sen. Bob Casey, D-Pa., that would have increased access to preschool programs, a big Democratic priority.

Here’s a recap of the amendments considered:

  • An amendment from Sen. Ted Cruz, R-Texas, that would provide for state-determined assessments and accountability systems. FAILED, 40-58
  • An amendment from Sen. Bernie Sanders, I-Vt., that would provide opportunities for youth jobs. FAILED, 43-55
  • An amendment from Sen. Chris Coons, D-Del., that would set up college savings account. PASSED, 68-30
  • An amendment from Sen. Richard Burr, R-N.C., that would alter the funding formula for Title I. PASSED, 59-39
  • An amendment from Sen. Sherrod Brown, D-Ohio, that would establish a full-service community schools grant program. PASSED, 53-44
  • An amendment from Sen. Bob Casey, D-Pa., that would increase access to early childhood education programs. FAILED, 45-51

The Senate PASSED the following amendments via voice vote:

  • An amendment from Sen. Orrin Hatch, R-Utah, that relates to early learning. An amendment from Sen. Elizabeth Warren, D-Mass., that would include specialized instructional support personnel in the literacy development of children.
  • An amendment from Sen. Brian Schatz, D-Hawaii, that would amend Title I to support assessments of school facilities.
  • An amendment from Sen. Chris Murphy, D-Conn., that would establish the Promise Neighborhoods program.
  • An amendment from Sen. Ben Nelson, D-Fla., that would allow schools to partner with current and recently retired STEM professionals and tailor educational resources to engage students and teachers in STEM.
  • An amendment from Sen. Joe Manchin, D-W.Va., that would support children facing substance abuse in the home.
  • An amendment from Sen. John Boozman, R-Ark., related to postsecondary education and the workforce.
  • An amendment from Sen. Tammy Baldwin, D-Wis., that would ensure the unique needs of students at all levels of schooling.
  • An amendment from Sen. Shelley Moore Capito, R-W.Va., that would include the rates of enrollment in postsecondary education, and remediation rates, for high schools.
  • An amendment from Sen. John Thune, R-S.D., that would strengthen Project Serv.
  • An amendment from Sen. Angus King, I-Maine, that would make funds eligible for tech and tech readiness.
  • An amendment from Schatz that would protect Native American languages.
  • An amendment from Sen. Elizabeth Warren, D-Mass., that would allow states to cross-tabulate student achievement data.