The Trump administration hit the pause button late Friday on a host of Obama administration regulations, including one detailing how accountability and state plans will work under the Every Student Succeeds Act.
The regulation, which was finalized in November, doesn’t take effect until Jan. 30. On Inauguration Day, the White House issued an executive order delaying for up to 60 days the implementation of any Obama regulations that haven’t yet taken effect.
The delay in the accountability regulations, which would seem to last until late March, could throw a monkey wrench into states’ efforts to submit their accountability plans by April 3, the first of two deadlines set by the administration. The regulations outline the process for submitting plans, and flesh out details that aren’t included in the law. So far, 17 states and the District of Columbia have said they want to submit their plans in April.
What’s more, it’s not clear what will happen to these regulations after the end of the “pause” period. The Obama administration’s final version of the accountability regulations won plaudits both from groups representing practitioners, including the Council of Chief State School Officers and AASA, the School Administrators Association, and folks that are often on the opposite side on accountability issues, including the Leadership Conference on Civil and Human Rights.
But congressional Republicans still had concerns about them. And Betsy DeVos, Trump’s pick to lead the U.S. Department of Education, wouldn’t commit to keeping the accountability regulations in their present form on the books when asked about it during her confirmation hearing.
Congressional Republicans also have have said they might want to scrap the accountability regulations, using the Congressional Review Act. That legislative tool, which up until now has only been used once, allows Congress to take an up-or-down vote on new regulations. If lawmakers use the CRA to scrap a particular set of regs, the executive branch is prohibited from issuing a similar set of regulations until a new law is passed. (To be clear, the Trump administration may still be able to regulate on accountability.)
For practical purposes, that means no administration could write regulations similar to the Obama administration’s on ESSA accountability until lawmakers renew the underlying Elementary and Secondary Education Act. That could take a while. ESSA isn’t set to be reauthorized until 2020, and it probably will be on the books much longer than that.
What about other ESSA regulations? The Obama administration’s assessment regulations, which were worked out through negotiated rulemaking, and its regulations for the Innovative Assessment Pilot weren’t effected by the order. Both of those sets of regulations took effect earlier this month. And the administration’s controversial supplement-not-supplant regulations were withdrawn last week.