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Throwback Thursday: Negotiating Rules for No Child Left Behind

So if you're lucky, or a glutton for punishment, you just got to sit through three days of "negotiated rulemaking" on the Every Student Succeeds Act, the latest iteration of the Elementary and Secondary Education Act.

And the question looming beneath all of the wonky, collegial discussion was this: Will these people actually end up reaching agreement on regulations for the two section of the law they're talking about? (That would be supplement-not-supplant and assessment.) Or will the department end up writing their own rules? Remember, that's what happens when negotiated rulemaking fails.


If history is any guide, there will be an agreement.

After all, negotiated rulemaking was, indeed, successful back in 2002, when negotiators wrote regulations for the No Child Left Behind Act, the previous version of ESEA, according to Tom Corwin, who at the time was an acting deputy secretary in the Office of Elementary and Secondary Education. (Corwin, a federal education policy veteran's veteran, is now a senior adviser for Penn Hill Group, a government relations organization.)

Back in 2002, negotiators considered regulations for both assessment and standards, but not accountability. Accountability was handled through the typical, not-negotiated rulemaking process, as it will be with ESSA.  

So how does this year's session compare to 2002? Overall, it's "more contentious" said Corwin, one of a handful of people who participated or observed both times. That's partly because supplement-not-supplant is part of the negotiation, he said, and it can surface some tough-to-tackle spending issues. What's more, the assesment issues are more difficult this time around.

Christopher T. Cross, another veteran's veteran who has held various high-level roles working for Republicans in both the U.S. Department of Education and on Capitol Hill, facilitated the conversations back in 2002.

And he recalls some fireworks. "For the most part, things were rather tense," Cross wrote in an email. "Passage of the law had come late in the session and what it meant for increasing the federal role was a bit of a shock. ... The tension was about the degree of federal prescription." (ESSA, as you may know, heads in the other direction.) 

Also, Cross recalled this that administration folks kept checking in with Margaret Spellings, an architect of NCLB, on any proposed agreements. (At the time, Spellings worked in the White House, heading up the Domestic Policy Council. Later, she became secretary.) 

"I do not recall there being much discussion with Secretary Paige," he wrote. (Susan Neuman, the assistant secretary for Elementary and Secondary Education at the time, was one of the negotiators, Cross recalled.) 

BONUS: Think there was tension this time around about who was selected for negotiation? There was even more back in 2002—some members of the civil rights community sued because they weren't included. (A judge eventually dismissed the suit.) 

Margaret Spellings, the newly-elected president of the North Carolina public university system, makes comments after being elected by the University of North Carolina Board of Governors in Chapel Hill, N.C., last year. Spellings is a former education secretary for President George W. Bush. 
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