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Every Student Succeeds Act

Will ESSA Negotiators Get to ‘Yes’ on Testing, Spending Regulations?

By Alyson Klein — April 06, 2016 4 min read
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Advocates representing school districts, state chiefs, school board members and other practitioners are none-too-happy about the U.S. Department of Education’s proposed regulations for the Every Student Succeeds Act on supplement-not-supplant (that wonky spending provision that says federal funds can’t be a substitute for state and local dollars).

And the pace of negotiations by a committee trying to come to a consensus on that proposal and on testing has been, very ... well, deliberative. Negotiators spent a day talking Wednesday and found some areas where they seemed to agree in principle, but they didn’t settle on any serious changes to the department’s proposals.

So is this negotiation going anywhere? Or will the committee throw up its hands and let the department write the regulations?

Two negotiators who sometimes find themselves on opposite sides of the issues say they want the panel of educators and advocates to get to “yes.” After all, if they don’t get to a consensus by the end of the month, the department gets to do the work for them.

“I think we’ve got good smart people here and a good representative group here, so hopefully we can reach agreement” on both supplement-not-supplant and on assessments, said Tony Evers, the state superintendent of Wisconsin in an interview. “I think we’ve got a lot of hills to climb in order to get” to agreement.

And Liz King, of the Leadership Conference on Civil and Human Rights, is on the same page.

“Given the oft-stated commitment to equity,” she said in an interview, “I don’t know how we couldn’t” reach agreement. “I think this committee is the best way to write regulations that govern the law given the broad diversity of representation. Most folks around this table would rather be involved than have the department do it on their own.”

And neither King nor Evers sees the conversation as a proxy war over an arguably even more important piece of the law—accountability—which will be done through the regular rulemaking process.

Proposal on Alternative Assessments

Still, Evers is worried that some of the things under discussion may be “best practices,” but go too far.

“All those things that people are suggesting be in the rules may not be within the context of congressional intent. That makes me kind of cry inside in some respects because I agree” with their intent, he said. “Yes, we should have the ability for Native American kids who are in Native American-speaking schools to have the opportunity to have their own test. Is it good? Absolutely. Is it part of congressional intent? I don’t know, and I don’t think so.”

During Thursday’s negotiations, Evers plans to offer a proposal to strike some of the department’s proposed language when it comes to alternate tests for students with the most severe cognitive disabilities.

ESSA requires that these tests be given to only 1 percent of students statewide (that’s 10 percent of students in special education.) But it sets up a waiver process for states that exceed that cap. The proposed regs outline a whole list of circumstances under which a state or district can go over the cap—including if there are a lot more students with cognitive disabilities who have gotten the attention of schools and the community.

Evers thinks that laundry list of hoops for states goes beyond the bounds of ESSA, which, after all, was aimed at curtailing the department’s authority.


But the most contentious issue under discussion, Evers said, may not be tests at all. It may be supplement-not-supplant, a wonky spending provision. It’s scheduled for the end of the discussion, which is no coincidence, Evers thinks, since it might take up a lot of time.

“That one seems to escalate the conversation around congressional intent,” he said.

Quick explanation: The department’s proposed regulations on supplement-not-supplant appear to call for local expenditures to be the same between Title I schools and non-Title I schools. That could take into account actual teachers’ salaries. It also calls for districts to provide “sufficient” funding to school districts to meet the goals of Title I, which some folks fear is a lawsuit waiting to happen.

What’s more, detractors argue that if Congress had wanted funding for salaries to be equal at every school, lawmakers would have made a change to another test districts must got through before they can tap federal Title I funds: closing the salary comparability loophole. (More from Andrew here, and a letter from groups representing local and state educators on the issue here.)

On the flip side, King sees the principle behind the department’s proposal differently. She said that if Congress hadn’t wanted to continue to require that federal funds be an extra and not a replacement for local funds, it would have gotten rid of supplement-not-supplant altogether. But Congress kept it.

And she’s not sure how school districts would prove federal funds are actually an additional benefit using a test that doesn’t track actual funds spent at each school, since the law doesn’t let states use the test they used under previous versions of the law. She’s open to hearing what other test the negotiators think would work to show that federal funds are truly an extra.

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