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ESSA. Congress. State chiefs. School spending. Elections. Education Week reporters keep watch on education policy and politics in the nation’s capital and in the states. Read more from this blog.


With the ESEA Conference Set to Kick Off, Is the End Near for NCLB?

By Alyson Klein — November 17, 2015 10 min read
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After eight years and at least three serious attempts, Congress is finally moving forward on bipartisan, bicameral legislation to rewrite the almost-universally-despised No Child Left Behind Act, the current version of the Elementary and Secondary Education Act.

The preliminary agreement—or “framework"—as the lead negotiators, Reps. John Kline, R-Minn., and Bobby Scott, D-Va., and Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., are calling it—is not the final word. Instead, it’s a jumping off point to set the stage for the official conference committee that began Wednesday and could end this week.

Alexander, who worked for almost a year with Murray on the rewrite, said at the start of the conference that there is a consensus that NCLB is a broken law. And he said, there’s a consensus on how to fix it.

“This agreement, in my opinion, is the most significant step towards local control in 25 years,” Alexander said.

For her part, Murray stressed that the framework includes “strong federal guardrails—a key priority for many others—so that students don’t get left behind.”

The proposal would keep some of the NCLB law’s most-important transparency measures in place, like continued annual testing in grades 3 through 8 and once in high school. And it includes some protections for perennially foundering schools and those where poor and minority kids, or students in special education, and those just learning English, are struggling.

But otherwise, states would be handed the car keys when it comes to almost everything else, including: how to fix perennially foundering schools and how to assist schools that are doing well overall, but still struggling to help certain groups of students (like English-language learners).

The framework would also consolidate a number of smaller programs into a block grant, a big priority for Kline. And it would take direct aim at what Alexander has called the “National School Board” by prohibiting the U.S. Secretary of Education from interfering with state prerogatives on teacher evaluation, testing, standards, school turnarounds, and more.

That language is largely seen as a rebuke to Education Secretary Arne Duncan, who has flexed his executive muscle more than other secretary in history, including by calling for states to adopt teacher evaluations that take test scores into account in order to get a waiver from the mandates of the NCLB law.

But the framework does include some key wins for the White House and Democrats, including a requirement that states turn around the bottom 5 percent of their schools (an idea borrowed from the administration’s NCLB waivers)

And it goes further on accountability than either House or Senate bills to overhaul the ESEA. It’s an open question, though, just how much those new accountability provisions will matter given the litany of very explicit prohibitions on the secretary’s authority. (More details of the framework and discussion of accountability below).

So will this thing pass? Aides have been working for months to reconcile the Senate version of the measure, which passed by a huge bipartisan margin in July, and the House version, which barely squeaked through with only GOP votes in July. (And that narrow House passage came only after the bill faltered due to lack of conservative support in February.)

Overall the framework “is not what I would have chosen in a perfect world,” said Frederick M. Hess, the director of education policy at the American Enterprise Institute. But he added, “It’s clearly a profound improvement over the status quo, and if this does not make it through it’s not like a better, leaner alternative is going to get enacted.”

The deal, he said, has the potential to get big bipartisan support in both chambers. But it could divide Republicans in the House, he said, where a new speaker, Rep. Paul Ryan, has just stepped up to the plate.

And indeed, Sen. Mike Lee of Utah took to the floor of the Senate Wednesday to complain about the process, saying the bill was essentially already cooked. Alexander assured him the process will be open.

During the committee meeting, Alexander stressed that voting against the bill is a vote to continue “the Common Core standards, the national school board, and the waivers in 42 states.”

What’s the early reaction? Most folks are holding off until the details become official. But in comments late last week, advocates for state officials made it clear they know a lot of trust is being placed in their hands.

Kris Amundson from the National Association of State Boards of Education said that while NCLB might end soon, its purpose should live on in the next ESEA reauthorization.

“It’s going to place tremendous responsibility on states to ensure NCLB’s commitment to educating every child,” Amundson said in an interview.

And Chris Minnich, the executive director of the Council of Chief State School Officers, said in a statement. “This progress is critical to creating a long-term, stable federal policy that gives states additional flexibility, while at the same time holding us accountable for results.”

Randi Weingarten, the president of the American Federation of Teachers, also thinks the framework goes in the right direction. “We are optimistic that the bill being considered today has the potential to improve teaching and learning in schools and classrooms across the nation,” she wrote the conferees in a letter sent Wednesday.

And the National Governors Association also weighed in to support a reauthorized ESEA, stressing that NCLB is “unworkable” and is hurting K-12 education.

But the Heritage Fund, a conservative group which helped kill an earlier version of the House bill in March, is unhappy with this latest attempt. What’s more, three GOP senators, Mike Lee of Utah, David Vitter of Louisiana, and Tim Scott of South Carolina, sent a letter to the lawmakers who crafted the framework, asking for further support for school choice.

So what’s in this preliminary framework? We brought you the details, Thursday night and early Friday.

Here’s your latest cheat sheet on the details of the framework, including some new updates. This information was garnered from multiple sources who were briefed on the framework, including congressional aides.

On Accountability

The compromise uses the Senate bill as a jumping-off point here. Quick refresher: That means states would still have to test students in grades 3-8 and once in high school in reading and math. But states would get to decide how much those tests count for accountability purposes. And states would be in the driver’s seat when it comes to goals for schools, school ratings, and more.

States would be required to identify and take action in the bottom 5 percent of schools, and schools where less than two-thirds of kids graduate.

States would also have to identify and take action in schools where so-called subgroup students (including English Language Learners and students in special education, as well as poor and minority students) are struggling. But importantly, the bill doesn’t say how many of those schools states would have to pinpoint, or what they would have to do to ensure that they are helping these students achieve—the bill allows local leaders to figure all that out.

And the School Improvement Grant program would be a thing of the past. Instead, states could reserve up to 7 percent of their Title I funds to help with turnarounds and other interventions. (That’s up from 4 percent in current law, for those of you who don’t have a dog-eared copy of NCLB on your desk.)

On Opt-Outs

The bill largely sticks with the Senate language, which would allow states to create their own testing opt-out laws (as Oregon has). But it would maintain the federal requirement for 95 percent participation in tests. However, unlike under the NCLB law, in which schools with lower-than-95 percent participation rates were automatically seen as failures, local districts and states would get to decide what should happen in schools that miss targets. States would have to take low testing participation into consideration in their accountability systems. Just how to do that would be up to them, though.

Early drafts of the ESEA legislation looked complicated on accountability, one advocate said.

“Based on what I’ve seen, for the next [education] secretary, interpreting the new law will be like looking at a Rorschach with one eye closed and with both hands tied behind their back,” said Charlie Barone, the policy director at Democrats for Education Reform, who served as an aide to Rep. George Miller of California, the top Democrat on the House education committee, when NCLB was written.

But that complexity could actually be a boon to state and local control, especially since the compromise includes nearly all of the restrictions on the secretary’s authority that were in the House and Senate versions, a GOP aide said.

“The complexity helps,” said a GOP aide who participated in the negotiations. The agreement “leaves a lot of this to states to figure out and the secretary’s ability to interfere with those state decisions is astonishingly limited.”

Local and Innovative Tests

The framework sets up a pilot project, giving a handful of states the chance to try out local tests, with the permission of the U.S. Department of Education. And importantly, these local tests aren’t supposed to be used forever—the point is for districts to try out new forms of assessment (as New Hampshire is doing with performance tasks) that could eventually go statewide and be used by everyone. That way states don’t get stuck with the same old assessment for years on end.

What’s more, the bill allows for the use of local tests at the high school level, with state permission. So a district could in theory use the SAT or ACT as its high school test, instead of the traditional state exam. Or it could come up with its own test for high schoolers.

On Programs

There’s more consolidation of federal education in the compromise than there was in the Senate bill, including block granting of physical education, mathematics and science partnerships, and Advanced Placement. In fact, dozens of programs are included in the block grant, some of which, like education technology, haven’t seen much funding federal in years.

The block grant would allow states to use K-12 dollars for a bunch of different purposes. Those funds will go out by formula to school districts and states.

Some programs will live on as separate line items, including the 21st Century Community schools program, which pays for after-school programs and has a lot support on both sides of the aisle.

Murray got the early-childhood investment she wanted. But the new program would be housed at the Department of Health and Human Services, not the Education Department as some Democrats had initially hoped. The Education Department would jointly administer the program, sources say. (The reason: HHS already has some early-education programs, like Head Start. Expanding the education department’s portfolio was a big no-no for conservatives.)

That new research and innovation program that some folks were describing as sort of a next generation “Investing in Innovation” program made it into the bill. (Sens. Orrin Hatch, R-Utah, and Michael Bennet, D-Colo., are big fans, as is the administration.)

So did a wrap-around services program that shares some DNA with both Promise Neighborhoods, as well as a community schools program that Rep. Steny Hoyer of Maryland, the second-ranking Democrat in the House, really likes.

On School Choice

No Title I portability—that means that federal funds won’t be able to follow the child to the school of their choice.

But the bill does include a pilot project allowing districts to try out a weighted student funding formula, which would also essentially function as a backpack of funds for kids. The program would allow 50 districts to combine state, local, and federal funds into a single pot that could follow a child to the school of their choice. It is said to be a more workable alternative to Title I portability, which looked more dramatic on paper, but which few states would likely have taken advantage of because of its complexity, experts said. Importantly with this pilot, participation would be entirely up to district officials. And the language would give them a chance to better target funds to individual school needs.

Funding and Other Issues

No changes to the Title I funding formula along the lines of what the Senate passed that would steer a greater share of the funds to districts with high concentrations of kids in poverty. But there were some changes to the Title II formula (which funds teacher quality) that would be a boon to rural states.

There was some chatter that the bill would also incorporate changes to the Family Educational Rights and Privacy Act. That’s not part of the agreement.

The framework would only “authorize” ESEA for four more years, as opposed to the typical five. That gives lawmakers a chance to revisit the policy under the next president, should they choose to do so. And its overall authorization levels are largely consistent with the most recent budget deal.