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Here Are the Parts of the Draft ESSA Rules That Worry Members of Congress the Most

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If you've been looking for reactions to the draft accountability rules for the Every Student Succeeds Act from Capitol Hill, now you've got a lot of it. 

Both the House and Senate education committees have had a chance to share their thoughts publicly about the proposed regulations. And in their hearings, lawmakers have had a chance to directly quiz Secretary of Education John B. King Jr. about the draft rules. Based on those hearings, it's become relatively clear what their biggest concerns are. 

Before we get to those, however, it's important to keep in mind that top Democrats have praised King generally for the U.S. Department of Education's approach. For example, Sen. Patty Murray, D-Wash. and the Senate committee's ranking member, said in a statement she was "very glad to see strong regulations coming out that make sure the law operates as it was intended and truly accomplishes the clear accountability goals we laid out." And Rep. Bobby Scott, D-Va. and the House committee's ranking member, said states need clear and robust regulatory guidance from the department regardless of any election-related political uncertainty. 

Now, in no particular order, here are elements of the draft rule that drew considerable and/or noteworthy concerns from federal lawmakers:

• The Timeline Both Murray and Sen. Lamar Alexander, R-Tenn. and the Senate committee chairman, worried the proposed ESSA rules would make the transition to the law too fast. It's a worry for state K-12 leaders as well.

Generally speaking, the 2016-17 school year has been described as a transition year from the No Child Left Behind Act to ESSA, and ESSA would fully kick in for 2017-18. Alexander said he would prefer the following: 2016-17 as a transition time, 2017-18 as the first year for collecting school performance data, and 2018-19 as the first year schools would be identified as needing improvement. But the draft rules would require states to collect 2016-17 school data for identifying schools in need of "comprehensive support" for 2017-18. Those would be the lowest-performing 5 percent of Title I schools in the state, high schools with low graduation rates, and others. 

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Remember also that according to an answer sheet for frequently asked questions about ESSA from the department, for the 2016-17 school year, states can either "freeze" their priority and focus schools (those identified as needing improvement under No Child Left Behind) and carry over such schools from 2015-16 to 2016-17, or create a new list of such schools—those new lists from states, if they chose to create one, was due March 1. 

• Summative Ratings Alexander and Sen. Susan Collins, R-Maine, pointedly criticized this provision of the draft rules. It could prove to be one of the most controversial elements of the regulations.

The draft would require states to assign a single, summative rating for each school, and for any rating system to have at least three performance levels—so a simple "pass-fail" system wouldn't be up to snuff. King says this is necessary to identify the lowest-performing schools. But Alexander was peeved, telling King that nowhere in ESSA is such a single school rating required. If states don't want to use A-F grades or numerical scores for schools, the senator said, the department shouldn't force them to. King told him the department isn't forcing states to adopt any particular rating system, but that states need some kind of way to rate schools in order to identify those needing improvement.

Meanwhile, Collins told King that requiring schools to get a single rating would violate the spirit of innovation that's supposed to be a key element of ESSA. 

• Standards This is actually an issue in the proposed rules that didn't get much if any attention before the Senate hearing. Both Alexander and Sen. Pat Roberts, R-Kan., criticized the draft rules because of how they address standards. Backlash to the Common Core State Standards is the political backdrop here.

ESSA says states must provide assurances that they're using challenging academic standards. They have to show they're aligned to state tests. And the department is barred from incentivizing or encouraging states to adopt any particular set of standards. So what's the concern? The two GOP lawmakers say the regulations now require states to provide "evidence" about their standards. Roberts said he was worried the department was trying to impose their will on states' decisions about standards. 

King downplayed the role of the department here, saying that other states would be in charge of reviewing the alignment of tests to standards, for example.

• Test Participation This issue was brought up by Sen. Johnny Isakson, R-Ga., and Rep. Tim Walberg, R-Mich., among others. High opt-out rates in several states is the political backdrop here. CORRECTION: The original post incorrectly identified the state Walberg represents. 

ESSA says that when less than 95 percent of students take annual state exams in reading and math in grades 3-8 and once in high school, states have the prerogative to decide the consequences for schools. The draft rules lay out possible consequences states can impose on schools with low test-participation rates, like lowering a school's overall rating—or states could pick their own action plan and present it to the department.

King stressed that the rules would still allow states flexibility in dealing with low participation rates. But there's clearly at least a little concern in Congress that the department might take a heavy-handed approach to opt-out through these rules. And Alexander emphasized that the department can't prescribe specific options to states.

• Consistent Underperformance There were bipartisan worries about the definitions of "consistently underperforming." Both Murray and Rep. Bradley Byrne, R-Ala., expressed concerns about the way the proposed rules handle the phrase, although for very different reasons.  

Murray said she was concerned that the draft handled the phrase "consistently unperforming" too loosely. She said she was worried, for example, that students could be defined that way if they were significantly below the average statewide performance—instead, they should be judged on whether they are meeting a state's academic goals and standards. That's been a notable concern among civil rights groups.

Byrne, on the other hand, told King he thought the department was improperly foisting definitions of the term onto states, a charge King denied. The regulations suggest various definitions for the term, and require the underperformance (however it's defined) to take place over at least two years. But there aren't any prescriptions we've seen in the regulations for how states must define consistent underperformance when it comes to student achievement. 

Programming Note: You may have noticed a new Every Student Succeeds Act banner at the top of the page, as well as an Every Student Succeeds Act button a few paragraphs into this blog post. Those are our new ESSA banner and button, respectively. Click on either one, and it will take you to our main ESSA landing page where you can read our coverage about all the aspects of the federal K-12 law. 


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