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ESSA: How Much Pull Does the Education Department Have Now?

As we've told you before, the Every Student Succeeds Act seeks to strike a balance between continuing federal protections for historically overlooked groups of students (like English-language learners and children in poverty) and reining in the federal government.

That's led to all sorts of speculation about just how far the U.S. Department of Education can go in regulating on the law and deciding whether state accountability plans are up to snuff.

So where is the line? Good question! We aren't lawyers, but we have phone numbers for a couple of them, as well as congressional staff who actually helped write the bill.

We've got their interpretations below. (Spoiler: There's a real lack of agreement.)

One lawyer, Reg Leichty, a founding partner at Foresight Law + Policy in Washington sees some "wiggle room" for the department when he looks at the prohibitions in ESSA.

"Congress didn't write this law to tie the secretary's hands," he said. "Congress wrote this law with an eye to what happens in the classroom."

Getting technical, Leichty notes, for instance, that the secretary can't make any moves that are outside the scope of the law. But that scope—improving outcomes for disadvantaged kids—is pretty darn broad. And if he were in acting U.S. Education John King's shoes and wanted to try some things on accountability, "I would probably try to use that language to give myself a little leverage."If there are objections, he expects some of this could get sorted out by a judge.

"I think there's going to be some push and pull over what that language means," Leichty said. "That's where the courts come in and say, 'Here's what it means.'" 

But a GOP aide who worked on ESSA has a pretty different take.

The prohibitions on secretarial authority are very real "handcuffs," the aide said. And the aide said the law is meant to ensure states are free to make decisions about accountability, school improvement, standards, and assessments without federal interference.

If the secretary chooses to ignore the law, then Congress and state and local leaders can use the tools they have to hold the secretary accountable, the aide said. But if the secretary follows the spirit and letter of the law, then state and local school leaders will finally be able to run their schools the way they believe is best, without worrying about the federal government getting in the way.

What does that mean in practical terms? The secretary doesn't have the authority to attach a definition to some of the terms in the new law on accountability that advocates are already flagging as having the potential to spur serious debate.

For example, in the GOP aide's view, the department can't define how "much more" academic indicators have to weigh vs. other factors, such as school climate. And it can't reject a state's plan just because it doesn't like the ratio of factors, or because it doesn't think that a state has given tests, graduation rates, and other factors a "substantial" weight.

What's more, the GOP aide said, the department can't tell states what constitutes "consistently underperforming subgroups of students." That definition is meant to be up to states.

And the GOP aide was pretty surprised that former U.S. Secretary of Education Arne Duncan has billed ESSA as embracing the Obama administration's agenda when it doesn't include teacher evaluations through student outcomes, gives states way more running room on accountability, and includes such clear restrictions on secretarial authority. (The department's take here.)

Maybe not surprisingly a Democratic aide doesn't see it exactly that way. Without getting into the nitty-gritty, this aide said the department still has the authority to fill in many of the blanks in the law.

"While there are new limitations on proactive rulemaking, Democrats would not have supported legislation that completely removes the department's authority to interpret and implement the law," the aide said. "I cannot predict what ED will or won't do via regulation—our intent was that regulatory authority, while limited, remain robust enough to ensure the department can interpret and implement the law."

For its part, the department is still reviewing ESSA (the ink is barely dry on the law, after all), including its impact on secretarial authority, Dorie Nolt, a spokeswoman, said.

One thing for sure: We're likely to hear more about all this over the coming year—already, the agency has gotten some pushback from the American Federation of Teachers, which thinks its guidance on opt-outs flies in the face of ESSA. And Congress will be watching—Sen. Lamar Alexander, R-Tenn., the chairman of the Senate education committee and an architect of ESSA has already announced three hearings on the law.

We'll know more soon about where the department wants to go and what advocates think—in fact, there's a big meeting Monday at the agency where "stakeholders" (educators, associations, and assorted experts, not people holding stakes) get to weigh in. Plus, the department has asked for comments on where it needs to provide more clarity in ESSA. Those are due Jan. 21. (So get crackin', stakeholders.)

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