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Every Student Succeeds Act

Will ESSA’s Negotiated Rulemaking Committee Reach Accord on Tests?

By Alyson Klein — April 18, 2016 6 min read
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It’s now or never for a panel of educators, advocates, and experts that began meeting again Monday to hammer out rules for the Every Student Succeeds Act.

The panel, which is charged with negotiating regulations on how tests and a wonky funding provision known as “supplement-not-supplant” should work, needs to come to an agreement this week, or the U.S. Department of Education will write its own rules on those issues.

The biggest sticking points in six and a half days of negotiated rulemaking so far are tests for students in special education, are a) whether the department should come up with a definition for what sorts of “severe cognitive disabilities” a student would have to have in order to take an alternative test, b) when states can test students in special education using alternative tests, and c) the supplement-not-supplant provision, which calls for districts to make sure federal dollars are an extra and don’t replace local spending.

There was also heated debate around language in ESSA that permits districts to substitute a nationally recognized high school test for the state exam.

Severe Cognitive Disabilities

The committee didn’t resolve any of the special education testing issues Monday morning, even though there was a ton of debate on whether there should be a definition of cognitive disabilities. Tony Evers, the state superintendent of Wisconsin, who is representing the Council of Chief State School Officers on the panel, moved to strike the department’s proposed definition, but couldn’t get enough support. Background on this issue here.

Here’s a flavor of the debate: Lynn Goss, a paraprofessional from the Menomonie School District in Wisconsin, asked why the committee would come up with a definition of severe cognitive disabilities when the main law for special education, the Individuals with Disabilities Education Act, doesn’t. But Ron Hager, of the National Disability Rights Network, said a number of states set a really low bar when it comes to which students can be excused from regular tests.

Would the lack of a definition be a dealbreaker? Hager couldn’t say for sure in an interview the neg reg solution concluded for the day. But he said it’s very important to him. He’s worried that without it, students in special education could be subjected to tests that don’t meet their needs.

Waivers from 1 percent cap on alternative tests

Negotiators also ran into some serious stumbling blocks on exactly what has to happen for a state to get a waiver from the requirement that no more than 1 percent of all students take alternative tests, typically those students with severe cognitive disabilities.

  • The department’s proposed revised regulations took out a previous requirement that states be sure they don’t disproportionately give tests to particular groups of students (i.e. racial minorities). That did not sit well with representatives from the civil rights community on the panel.
  • The department’s proposed rules would require states to meet the law’s 95 percent testing threshold for both students in special education and for all students in order to get a waiver from the 1 percent requirement. Some folks on the panel, including Lynn Goss, a paraprofessional from Menomonie, Wis., didn’t think that made sense, since parents are allowed to opt-out of standardized tests under ESSA.
  • The department proposed a bevy of requirements in order for a state to get a waiver, essentially aimed at making sure states aren’t suddenly using alternative tests with a whole bunch more students. It’s unclear if those are going to fly with the panel.

Nationally Recognized High School Test

There were essentially two big issues that prevented the group from coming to agreement:

•The definition of a nationally recognized test. The department proposed a definition that some folks on the panel, including Rita Pin Ahrens, a parent advocate, worried would leave out tests like PISA and TIMMS, two internationally benchmarked tests. And others worried that International Baccalaureate tests would be missing from the mix. Still others wanted competency based tests (which are still intheir infancy, but might be ready for prime time in a few years).

•Some school district folks, including Derrick Chau, a member of Los Angeles School Board, noted that if a big district like his wanted to offer a nationally recognized test instead of the state exam, it would have to phase it in. That could mean double-testing some students, unless districts are allowed to let some schools offer the nationally recognized test while others are still using the state exam. Patrick Rooney of the U.S. Department of Education said that would essentially run afoul of the law.

English-Language Learner Tests

It wasn’t all bad news. Negotiators were able to reach a pretty quick agreement on when states should develop tests for English-language learners and how English-language proficiency should work. And they were able to come to accord on how advanced math tests for students who take higher-level math courses—like Algebra—in 8th grade should work.

Under ESSA, states are supposed to make “every effort” to offer native-language tests for ELLs who speak a language that’s present to a “significant extent” in the student population. Right now, the vast majority of states don’t offer native-language tests. The tentative agreement would set some parameters for states to consider when deciding which languages to offer native-language tests in. For instance, under the tentative agreement, states should aim to get a test in the language that’s most commonly spoken by ELLs in the state. It would also allow states to test American Indian and Alaska Native students in native language immersion programs in their ancestral tongue.

It’s clear that the wording adopted wasn’t everyone’s ideal—Evers said he would rather have put in wording making it clear that states must offer alternate-language tests for any language that 10 percent or more of the students in a state speak.

Essentially, he wanted that bright line so states could be sure they were doing the right thing. But Delia Pompa of the Migration Policy Institute noted that the regulation doesn’t necessarily require states to do anything, it just gives states things to consider.

Advanced Math Tests

The panel also got to “yes” on tests for students taking advanced math tests. In a nutshell, the agreement would allow states to offer those taking Algebra or geometry the chance to take a test at their level. But states would have to describe how they plan to provide that all students take advanced math classes if they want to.

So does agreement on those relatively easy issues mean that negotiated rulemaking as a whole will be a success? Don’t bet on it.


The department tweaked its proposal on supplement-not-supplant to clarify, for instance, that districts that use weighted student funding formulas can carry on. It also gives states a bit more flexibility in meeting the new requirements. But it doesn’t get rid of the provision that has enraged U.S. Sen. Lamar Alexander, R-Tenn., and others, which calls for states and districts to consider how much money they actually spend on each school to.

Evers—who was one of the loudest critics of the department’s original regulations, which he said were not in line with congressional intent—doesn’t think this version is much better.

“Essentially, we’re kind of where we were,” he said. He’s still worried that the department’s proposal would lead to forced teacher transfers, as districts struggle to ensure that all teachers in a school are paid the same. “Kids are going to be losing their teachers” under the department’s proposal, he said.

Evers isn’t the only critic of the regulations. Many of the practitioners on the panel were equally unhappy with them earlier this month.