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ESEA Reauthorization: How Will ESSA's Regulatory Process Work?

The Every Student Succeeds Act is officially an honest-to-goodness law.

So what happens next? And how will regulation on a bill that is aimed partly at curtailing the federal role on K-12 work?

For starters, there will be a transition period between No Child Left Behind, the old version of the law, and its waivers to these new ESSA plans. Waivers are null and void by August 1, 2016. ESSA will be fully in place beginning in the 2017-18 school year. States are expected to have more discretion in crafting their ESSA plans than they did under waivers or NCLB. They can even request a hearing if they're rejected. 

The 2016-17 school year will be a transitional time with states continuing to watch very low-performing schools and those with big achievement gaps. (Longer explanation of the ins-and-outs of ESSA here.)

And it will be a transitional time at the department too, with John King, the incoming acting secretary, and his team leaving mid-year and a new team, led by a secretary-to-be-named-later, taking the reins about halfway through the school year.

It's unclear just how much King and company will be able to get done on regulations before heading out the door. But the Obama administration has enough time to at least begin moving the ball forward. And they're expected to get going soon, in coming days and weeks.  

The agency will be asking states and districts, civil rights advocates, educators, business leaders, and others for input on where additional guidance is needed, a department official said.

Some background: ESSA's regulatory process may be particularly tricky, since the law seeks to strike a delicate balance between handing power over to states and reining in the feds, while on the other hand ensuring there are some "guardrails" in place to help struggling schools and traditionally overlooked groups of students. (It's a grand compromise, after all.)

And there are a lot of yet-to-be-defined phrases in the law, as there have been with other new versions of the Elementary and Secondary Education Act. (What exactly does ESSA mean when it says academics have to count "much more" than school quality factors? What does it mean when it says that states and districts need to flag schools where traditionally overlooked groups of students—including students in special education and kids in poverty—are "consistently underperforming?" And other things.)

The Education Department may help fill in the blanks. Rep. Bobby Scott, D-Va., one of ESSA's architects, thinks the department has enough authority to enforce the new law appropriately.

And in a speech late last week, John King, who will soon take over as acting secretary, made it clear that the department still has plenty of leverage—and that equity will be a key focus going forward.

"The reason why President Barack Obama signed ESSA is because it makes very clear that academic indicators and academic success rates of disabled students and students of color is still a predominant factor in how schools are evaluated," said Education Secretary John King during a short speech addressed to the NAACP and the U.S. Chamber of Commerce Friday. "This new law preserves the federal levers to withhold funds from states or put them on high risk [status]. And our Justice Department will be leaning in to make sure folks honor their obligation to promote equity."

Still, the secretarial prohibitions are new and it could take some time before we see exactly how they are going to play out politically (and maybe even legally). So stay tuned (for the next few years).

For now, though, how will the regulation process work? There are a handful of issues in ESSA that will have to go through what's known as "negotiated rulemaking"—where education advocates and the department basically get in a room and try to hash out an agreement. If that process fails (and it often does), the department just goes through the normal regulatory steps. (ESSA puts a slight twist on this though. More below.)

So what parts of the law will have to go through "negotiated rulemaking" (or "neg reg" if you really want to sound like a bureaucrat?) Standards, assessments, and supplement-not-supplant (which basically refers to how federal dollars can't replace districts' own spending). Notice what's not on the list? Accountability. So it would seem that crucial component of the bill could be done through the regular, arguably smoother process, if the department wants.

Importantly, both Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., have said publicly that their job isn't done—they'll be keeping an eye on implementation.

They aren't kidding. Case in point: There's language in ESSA that allows Congress to review any regulations crafted by the department in case the "negotiated rulemaking" process fails. So that potentially opens the door for Congress to take an advanced peek at the regulations on standards, assessments, and supplement-not-supplant.

If Congress doesn't like a regulation, it would take a new bill or rider to stop it, though. (Not an easy thing to accomplish.)

So what's the idea behind the congressional review? Here's how a Senate GOP aide explains this "new and unusual procedure": 

Congressional review of some regulations could "change the whole thought process of regulators—the 'better to ask forgiveness than permission' card isn't really an option, and that's pretty big when it comes to sneaky regulators," the aide said.

It's tough to tell how much of an impact the congressional review will have over the long haul, since it seems the department technically doesn't have to heed Congress' advice, unless they pass a new law. But, whether it ends up making a serious difference or not, the provision is emblematic of the law's push to curb federal power over K-12 and to hand it over to states. 

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