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Is ESSA a Legacy of Brown or Milliken?

Note: This week, Arnold Shober, associate professor of Government at Lawrence University in Appleton, WI, will be guest blogging.

Brown v. Board of Education (1954) suggested that public education was meant, in part, to equalize life chances. This was also the premise underlying the Coleman Report and the Elementary and Secondary Education Act (ESEA) — that somehow, providing equal access to uniform public education could compensate for social and neighborhood inequities and give students an equal chance at the start of life. And, even when the Supreme Court found that equalizing education itself was non-judiciable, the court admitted that education was central to a functioning democracy. But in two decisions in the 1970s, Milliken v. Bradley and San Antonio Independent School District v. Rodriguez, the court held that local control was paramountwhat, how, and when education was to be funded and taught was essentially a local matter. Thus, an "equal start" might be just equal with the children across the district. Although ESEA itself had already become little more than a compliance exercise by then, the localism of Milliken and Rodriguez was a blow to the transformational hopes of federal policy advocates.

But that didn't stop them from using the federal carrot-and-stick approach in the Elementary and Secondary Education Act, especially after 1994. The Improving America's Schools Act (IASA) sought to nationalize at least assessment — some members of Congress tried to nationalize curriculum, too, but that effort backfired. The No Child Left Behind Act standardized reporting and, later, the Race to the Top pushed for multi-state exams. All of these efforts were meant to equalize the academic content of education, which necessarily undercuts both state and local control.

ESSA's big change was to enhance both local control and equal treatment. By definition, these work at cross-purposes, ensuring that the politics of ESSA will be contentious, and no more so than in the politics of testing. ESSA is unequivocal that states have control over their curriculum, testing, and the control of standards, but with two major exceptions: The act requires all students to be tested and new federal regulations require the tests to be "fair." Both of these undermine state authority and do nothing to bolster local control. Both raise questions as to whether ESSA's new provisions simply shift blame (and credit) to state and local politicians.

Perhaps most controversial was ESSA's requirement that all students be tested. No Child Left Behind had a similar requirement, but that Act and the accompanying rules left an out for states and districts in the shape of large N-sizes and "super" subgroups. Essentially, states could withhold test scores for small groups of students (those in the subgroup). These options were provided to help shield schools from missing "adequate yearly progress" due to statistical variations that are characteristic of small numbers of students. As Kevin Carey and others noted, states became quite adept at using subgroups and other legal provisions to cover broader performance problems. Under significant pressure from civil rights groups and others, ESSA rules have eliminated these options. More, ESSA requires virtually all special education students to be held to the same standards as non-special education students—with only one exception: students who are "severely cognitively disabled" may be held to different standards, so long as this population does not exceed more then 1 percent of all students in the state. But the cap does not apply to districts!

These initiatives look pretty dire for local-style control. What's likely to happen? Under NCLB, districts had an incentive to identify as many small subgroups as possible to avoid reporting scores or tailoring services. Under ESSA, the temptation will be to underidentify groups or "exit" students from subgroups. (This concern was raised explicitly by the Council of Great City Schools in its comments on the rules implementing the law.) This would reduce statistical ping-ponging, but it may also allow schools to avoid highlighting income, racial, and ethnic gaps in student performance. But these are relatively easy to audit, and, as intended by the architects of the law, the lack of merged subgroups will force public accountability for all but the tiniest of student groups. (The final ESSA rules suggest groups of more than 30 must be reported, although some suggest as low as 10.)

Special education will provide a different political struggle. Because ESSA only applies the cap to the state, districts have every incentive to include as many students in the "severely cognitively disabled" group as possible if administrators think a special-needs student might negatively affect a school or district's scores for accountability purposes. This poses a tremendous coordination problem for states, and they may be particularly vigilant about defining what "severely cognitively disabled" means, which is in their purview.

It also means that politicians—especially those legislators who attacked the Common Core and the associated testswill face serious pressure to make or keep standards "manageable" and avoid identifying schools for low-performance.

But new ESSA regulations may have also thrown a wrench into even state control of testing. Rules implementing the law inserted a requirement that the measures be "fair" to participants in the process (ยง200.2(b)(4)(i)). What "fair" means is an open question. In the context of teacher performance, it might mean that bargaining contracts will have some sway over the design of state assessments. For students, it could mean the revival of the '80s "opportunity-to-learn" debate, but it is unclear who would be most empowered by such a reading. Anti-testing groups might push states away from testing anything above an absolute minimum by arguing that all students must be able to succeed on a test for it to be fair or authentic. The 2016 Democratic platform seems to take this view as it suggests that assessments should not "falsely and unfairly" label students in a variety of groups as "failing" even as it suggests support for "accountability." For civil-rights groups, the term might suggest that standards be adjusted for the student population statewide similar to the pressure faced by the ACT and SAT to modify their college-entrance exams. Finally, schools or teachers could argue that they needed more resources to ensure students were prepared for the state tests.

Last time, I suggested that ESSA might undercut innovative assessment because of the political threat from state courts. But ESSA might also prompt politically-sensitive state lawmakers to lower standards to ensure that all students can pass. So far, states have held on to the new, higher bar introduced with Common-Core-aligned tests, but the initial score drops did not have consequences. ESSA may weaken the link between the tests and what's taught in classrooms. ESSA's commitment to equal treatment is commendable, but equal treatment may undermine the goals of the ESEA project as a whole: improving academic performance. Lawmakers can't have both Milliken localism and Brown universality.

--Arnold Shober

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