Every Student Succeeds Act

Uncertainties as Congress Takes Aim at ESSA Regulations

By Andrew Ujifusa — February 14, 2017 6 min read

A push by Republicans in Congress to overturn accountability regulations for the Every Student Succeeds Act could have far-reaching consequences for how the law works in states, and the potential end of the much-contested rules is dividing the education community.

Groups supporting the move argue that it would free schools from unnecessary burdens, while opponents contend that overturning the rules could hurt vulnerable students and create turmoil in states and districts trying to finalize their transition to ESSA, the 2015 law that replaced the No Child Left Behind Act.

Last week, the House of Representatives approved a joint resolution that would overturn ESSA accountability rules issued by President Barack Obama’s administration. Those rules, which became final in November, are intended to detail for states the timeline for addressing underperforming schools, how schools must be rated, the ways English-language learners must be considered in state accountability plans, and other policy issues.

Another resolution, also approved last week by the GOP-controlled House, would overturn final rules issued in October on teacher-preparation programs.

The Senate is expected to consider a similar move on the accountability rules as soon as this week.

Groups including the National Governors Association and AASA, the School Superintendents Association, hailed the move.

It might be misguided to think that a big statute like ESSA is better off without any regulations at all, said Andy Smarick, a resident fellow at the American Enterprise Institute, which advocates for relatively limited federal control over education. However, he also said Congress is within its rights to push back on the U.S. Department of Education if it believes an administration is using regulations to dictate certain policy outcomes, not just help states understand the law.

“What we would lose in clarity, we would gain in flexibility for what states and districts have been implementing,” Smarick said.

But the move could wreck months of cooperation between states, advocates, and others to try to craft state ESSA plans that focus on protecting students’ civil rights and addressing racial achievement gaps, said Luis Torres, the director of policy and legislation for the League of United Latin American Citizens, or LULAC.

“I think it just goes to show that there are people intent on completely doing away with any potential guardrails that help students of color,” Torres said.

‘Making Law’

Repeal of the regulations would not alter ESSA itself, which requires states to administer annual tests in reading and math in grades 3-8 and once in high school, identify certain schools as needing improvement, and use results from tests in several ways in state accountability systems.

Congress can overturn regulations from the executive branch through the Congressional Review Act. That statute also prohibits executive agencies from subsequently issuing “substantially similar” regulations for the same law. The practical and legal impact of that phrase remains unclear, however.

So it remains to be seen how the Education Department under its new secretary, Betsy DeVos, would try to write new accountability rules for ESSA, or if the department would undertake such an effort at all.

Rep. Todd Rokita, R-Ind., who introduced the resolution at the start of this month, denied that he was trying to “gut accountability” under ESSA. Instead, he said, he was trying to ensure that ESSA would grant states and districts the power federal lawmakers intended when they approved the law.

“Here we have a federal agency inserting itself, making law—not just interpreting it, but making law,” Rokita said on the House floor last week before the vote.

Asked why the National Governors Association supports overturning the rules, Stephen Parker, the NGA’s legislative director for education issues, used two examples: the provisions on testing-participation rates, and the minimization of the school quality indicator’s role in school improvement designations.

“These two references illustrate additional requirements on local school districts and states that we believe are inconsistent with the law,” Parker said.

But Rep. Jared Polis, D-Colo., argued on the House floor that overturning the rules would trigger “mass chaos and uncertainty” and destroy the bipartisan basis of the law.

Polis and Rep. Bobby Scott, R-Va., the top Democrat on the House education committee, later released a statement saying the resolution would “undermine public education.”

And Torres of LULAC said the rules represent a responsible check on states by the Education Department.

The leading group representing the nation’s state schools chiefs has stressed the need for stability, irrespective of what happens to the Obama-era regulations.

Chris Minnich, the executive director of the Council of Chief State School Officers, indicated that overturning the rules “could disrupt the progress states have made over the past year to transition to ESSA, unless the U.S. Department of Education acts quickly and provides states with the clarity they need around the implementation of the law.”

The ESSA rules don’t just deal with big-ticket issues like indicators of school quality and consistently underperforming students. They also address such matters as calculating state graduation rates, determining the process by which certain students get alternative diplomas, and laying out how students who exit special education services are included in accountability systems.

The current regulations also say that states must submit their accountability plans in either April or September of this year.

Undoing the rules would affect states in ways that many lawmakers and other officials probably aren’t anticipating and would leave states without a basic framework to use for their ESSA plans, said Anne Hyslop, who helped write the rules for the Education Department. (She no longer works at the department.)

“Those are the ground rules for states in terms of where they should start with their ESSA plans,” Hyslop said. “Without that, I do worry that we’re moving backwards to an era where there really wasn’t much oversight of what states were doing.”

Scrapping the regulations wouldn’t just leave states in the dark about whether their ESSA accountability plans would pass muster with the Education Department. It could also leave states open to inconsistent treatment by the department under ESSA in the years ahead.

All of that means, Hyslop argued, that states could see a return to life under No Child Left Behind Act waivers, in which state officials and others often became frustrated with the federal department over how waivers were given out and the lack of clarity in the process.

Sen. Lamar Alexander, R-Tenn., the Senate education committee chairman, and other Republicans often said the department was overstepping its authority during the NCLB-waiver process.

“It is a little bit of an ironic twist on this,” Hyslop said.

If the department chose to craft new regulations, such a process would likely take from six months to a year, according to Hyslop. That could mean such rules would become final well after the 2017-18 school year, when ESSA kicks in.

Maintaining Law’s Integrity

But supporters of overturning the rules point out that the Every Student Succeeds Act prohibits the education secretary from issuing conditional waivers of the law’s provisions.

Since many of the lawmakers who wrote ESSA are still in Congress, federal lawmakers “feel a great sense of ownership over the very strong, bipartisan law that they supported,” and therefore won’t let the law be undermined by arbitrary federal decisions, said Noelle Ellerson, an associate executive director of AASA.

In addition, under an Education Department now headed by DeVos, states might be able to count on a lot of leeway even if the current ESSA rules remain on the books. If the rules are overturned, people could expect to see ESSA state plans approved without too many obstacles, said Smarick, of the American Enterprise Institute.

“It’s really hard for a department, without regulations, to start to reject all these state plans that are consistent with the statute,” Smarick said.

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A version of this article appeared in the February 15, 2017 edition of Education Week as Congress Targets ESSA Regulations

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