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House, Senate ESEA Compromise Sails Through Conference Committee

Thumbnail image for ESEA-Alexander-Kline-blog.jpgUPDATED

After more than a decade, Congress seems to be on the verge of leaving the almost-universally despised No Child Left Behind Act ... well, behind.

Lawmakers on the U.S. Senate education committee and more than a dozen House members—amid much bipartisan backslapping—voted Thursday 39-1 to approve a bicameral, bipartisan compromise measure that would scale back the federal role in education in the underlying Elementary and Secondary Education Act for the first time since the early 1980s.

Click here for updated language from the framework of the Every Student Succeeds Act, the name of the agreement. We're not sure that this represents the final language of the agreement, but it's clearly a late draft that's relatively close to completion. 

Sen. Rand Paul, R-Ky., who is running for president, was the only lawmaker to vote "No," and did so by proxy.

The agreement helped guide the conference process and formed the basis for the official compromise approved Thursday. The legislation is expected to be on the floor of both chambers shortly after the Thanksgiving recess. 

The compromise gives states acres of new running room on accountabililty, while holding firm on the NCLB law's requirement for annual testing and data that shows how at-risk students are performing compared to their peers. And it includes some protections for perennially foundering schools, so-called "drop-out factories," and schools where poor and minority students, or students in special education and those just learning English, are struggling. 

Even before the official start of the conference, the lead negotiators, Reps. John Kline, R-Minn., Bobby Scott, D-Va., and Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., came to a preliminary agreement or "framework" to jump-start negotiations. Their proposal borrows ideas from both a Republican-only measure that barely passed the U.S. House of Representatives in July, and a Senate version that cleared the U.S. Senate with big, bipartisan support a few days later

Alexander, who worked for almost a year with Murray on the rewrite, said at the start of the conference on Wednesday 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 ... so that students don't get left behind."

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The deal would 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 compromise includes some key wins for the White House and Democrats, including a requirement that states turn around 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 the House or Senate bills to overhaul the ESEA. Academic factors—such as test scores, graduation rates, and English-language proficiency—would have to make up at least 51 percent of a school's rating. 

The other 49 percent would be up to states, and could include things like parent engagement, teacher engagement, college readiness, and school climate. (UPDATE: Apparently there's more to the story on the weights of the different indicators. More here.) 

For their part, state chiefs are excited to move beyond the NCLB era.

"There's been a lot of emphasis on math and reading and it's really limited our curriculum," said Stephen L. Pruitt, the newly appointed Kentucky state chief, a former science teacher. "Math and reading drove our accountability system. We want to educate all the areas of the child, not just one part."

And Brenda Cassellius, Minnesota's education chief, said there's no way her state is turning back.

"I'm bothered when I hear people say that school chiefs won't hold schools accountable," said. "That's not been evident with the waivers. ... We've supported our schools and we've held them accountable. I hope America can see that."

But Sandy Kress, who served in President George W. Bush's administration and is an original author of the NCLB law, got heartburn when he looked at the compromise on accountability. He's worried about what it will mean for poor, minority, and low-income students.

"States are being given license to create systems that are significantly not based on student learning. That's a problem," he said. "This pretty much eliminates any kind of expectation for closing the achievement gap."

And it's an open question just how those new accountability provisions, which seem pretty complex, will play out given the litany of very explicit prohibitions on the secretary's authority. (See long and detailed cheat sheet on the bill below for more on the bill and accountability.)

So will this thing pass? Aides worked 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 Februrary.)

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

During the committee meeting, Alexander stressed that voting against the bill is a vote to continue the current Obama-eduregime: "the common-core standards, the national school board, and the waivers in 42 states."

The compromise would also consolidate nearly 50 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.

The conference panel adopted a slew of amendments, including one from Sen. Michael Bennet, D-Colo., which would allow states to set limits on testing, as well as provisions allowing states and districts to use new flexible funds on arts and science, math, and technology education, and for dual enrollment courses for English-language learners. 

Sen. Richard Burr, R-N.C., who has worked for years to fix the Title I formula, which he says shortchanges rural districts, sounded really disappointed that his language—adopted in the Senate bill—didn't make it into this final version. The consolation prize: The Institute for Education Sciences will study the formula's impact.

Other folks expressed angst about pieces of the preliminary agreement. Democrats are bummed about program consolidation, and some Republicans said they wished the bill scaled back the federal role even further.

But Rep. Todd Rokita, R-Ind., was happy to see there's language in the bill making it clear that the education secretary can't coerce states into adopting the Common Core State Standards. And he's glad that nearly 50 programs have been eliminated in the framework, in favor of a flexible fund state can use as they chose. He wishes the bill's spending levels were a little lower, though.

Thumbnail image for Thumbnail image for Thumbnail image for 15budget-ryan-murray-congress-600.jpgSen. Chris Murphy, D-Conn., who worked to beef up accountability in the Senate version of the bill and ultimately was just one of a handful of senators to vote against final passage because of civil rights concerns, is happy this time around.

"We have to get this right because the accountability framework in this bill will serve as a fail-safe for how millions of historically marginalized children will be treated in this nation," he said. 

What's the early reaction from edu-advocates? 

Mary Kusler, the director of government relations for the National Education Association, said it was "a significant step to see members from both Houses come together to fix something that is fundamentally broken and hurting children's opportunity to learn." And she added, "We are looking forward to seeing final legislative language, which we hope will continue to reduce testing and the high stakes that go with it."

Many folks are biding their time on reaction until there's real language publicly available, since the details are key. (No official statements out yet from major civil rights groups, although accountability hawks like Kress aren't very happy.)

But some school district officials say they like what they're hearing, even as they wait to see it all in writing. This will turn decisions about accountability back to the local level, they say. 

"Some people might try to portray this as a free-for-all, or the wild, wild west, but that's not the case," said David Schuler, the superintendent of High School District 214 in the Chicago suburbs, and the president of the AASA, the School Administrators Association. "This would allow those conversations to move from D.C., in most cases, to our state capitol, and that's where they should be." 

And in an interview late last week, Kris Amundson from the National Association of State Boards of Education, made it clear states know a lot of trust is being placed in their hands.

"It's going to place tremendous responsibility on states to ensure NCLB's commitment to educating every child," Amundson said.

And Chris Minnich, the executive director of the Council of Chief State School Officers, praised the lawmakers' work, saying the deal is a recognition of states' work to raise standards and shift to higher-quality tests over the last five years.

"I think it's a great example of policymaking," Minnich said Thursday after the conference agreement was passed. "They've managed to return important control to states, but also provide guardrails at the same time that prevent kids being lost in the system and not being accounted for. I think states are going to welcome the opportunity to build systems that work for all kids."

But the Heritage Action, a conservative group which helped kill an earlier version of the House bill in March, is unhappy with this latest attempt. Advocates worry their opposition could complicate House passage, despite all the good feelings in conference.

So what's in this preliminary framework? We brought you the details, Thursday night and early Friday.Thumbnail image for Thumbnail image for Thumbnail image for 28-esea-lamar-alexander-staff-600.jpg

Here's your latest cheat sheet on the details of the compromise, including some new updates.

This information was garnered from an overview of the framework provided by the committee, as well as interviews with multiple sources who were briefed on the compromise, including congressional aides.

Another great cheat sheet from the American Association of School Administrators. Key details are still emerging, though, because no official legislation has been released to the public and the press.

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 largely 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 could also incorporate other factors into their accountability systems, including access to advanced coursework, school climate, and safety. 

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 funds to help with turnarounds and other interventions.

And the compromise would shift accountability for English language-learners from Title III (the English Language acquistion section of ESEA) to Title I (where everyone else's accountability is). The idea is to make accountability for those students a priority. 

The legislation also mirrors a recent federal regulation when it comes to assessments for students in special education, saying, essentially, that only 1 percent of kids can be given alternative tests. (That's about 10 percent of students in special education.)

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."

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Local and Innovative Testing
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 framework 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.

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. 

Some programs would 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—the bill enshrines an existing program "Preschool Development Grants" in law, and focus it in part on broadening access to childcare. But the 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, however. (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 wraparound 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.

The agreement would keep in place maintenance of effort, a wonky issue Andrew wrote about recently, with some new flexibilty added for states. (Quick tutorial: Maintenance of effort basically requires states to keep up their own spending at a particular level in order to tap federal funds.)

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. 

Senate Health, Education, Labor and Pensions Committee Chairman Sen. Lamar Alexander, R-Tenn., left, and House Education and the Workforce Committee Chairman Rep. John Kline, R-Minn., talk on Capitol Hill in Washington on Wednesday before a meeting of House and Senate negotiators trying to resolve competing versions of a rewrite of the Elementary and Secondary Education Act. 

--Jacquelyn Martin/AP

Assistant editor and Politics K-12 blogger Andrew Ujifusa and Staff Writer Daarel Burnette contributed to this report.

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