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How Far Should the Education Department Go in Regulating on ESSA?

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Everyone agrees that the brand-new Every Student Succeeds Act includes a ton of provisions that seek to crack down on the U.S. Secretary of Education's authority when it comes to standards, assessments, teacher evaluations, school turnarounds, and more.

The laundry list of restrictions has been described as everything from political window dressing that may not matter very much in the long run to a K-12 policy straitjacket for incoming acting U.S. Secretary of Education John King and pretty much everyone who comes after him. (Cheat sheet on the ins-and-outs of ESSA here.)

So which is it? And how will the prohibitions play out as the department seeks to regulate on the new law? Like a lot of things about ESSA in its very early days, it kinda depends on who you ask.

Advocates for districts say they see a theme in the new law that they hope will be carried through the regulatory process.

"One of the framing principles of ESSA was to rein in the regulating authority of the Education Department," said Noelle Ellerson, the associate director of policy and advocacy at  AASA, the School Administrators Association, which enthusiastically supported the new law.  "It seems pretty shortsighted that a department would try to regulate to the max on everything they can. Just because they can doesn't they mean they should."

But Ellerson is bracing herself and her members, given her past experience with the Obama administration. "If there were ever a department [that] would find creative interpretations around seemingly tight limits on regulatory authority, we remain concerned [that] this would be the agency to do so," she said.

She's more "cautiously optimistic" about the bunch who could follow King and company at the department—the next administration could have a big say over the direction of the law, since ESSA doesn't kick in fully until 2017-18.

"What little we've heard around K-12 in the election has been more aligned with not regulating the heck out of everything," Ellerson said.

The Obama administration should keep that in mind as it develops regulations, she added. After all, it wouldn't be a great legacy for the next group to come in and undo everything they did, Ellerson said.

But Liz King, the director of education policy at the Leadership Conference on Civil and Human Rights, which gave ESSA a measured endorsement, has a different take.

"I think the text is pretty clear that there are limitations on the limitations," King said. She noted, for instance, that there are fewer restrictions in the final version of ESSA than there were in either the House or Senate proposals. 

And the prohibitions that remain were crafted with care to ensure a continued federal role in looking out for equity, she added. The secretary, King said, "retains a reasonable authority to regulate and enforce the law. ... The straitjacket people are looking for doesn't really exist."

What's more, King and others will be watching to make sure that the department follows through. "If this and subsequent secretaries don't use regulation to drive toward equity and to raiseESSA-pens-blog.jpg achievement for disadvantaged children, we are going to push back," she said.

Of course, things are likely to become a lot clearer in coming months. And it's possible that the department, and future administrations, could craft ESSA regs that make both Ellerson and King pretty happy, while staying within the bounds of the secretarial provisions laid out in the law. But it will be a balancing act.

And ESSA, like many laws  (including previous versions of the Elementary and Secondary Education Act) has a lot of new, yet-to-be-defined phrases that could end up making a difference when it comes to accountability, testing, and more. The difference, of course, between this version and past editions of ESEA is that the education secretary typically gets to step in and define the terms, and presumably make sure states hold the line on those definitions. That could be a lot harder with ESSA than it's been with past versions of the law.

So what are some of the words and phrases in the bill to watch as the regulatory process unfolds?

"Much greater": ESSA allows states to consider both academic factors (like tests and graduation rates) and school-quality factors (like teacher engagement and school climate) in gauging school performance. But on the whole, the academic factors need to carry a "much greater" weight than the other factors. So what does that mean? We may find out.

"Substantial": Each of the factors in a state's accountability system has to carry a substantial weight. So what does that mean? The department may get to explain through regulation. But there's also language in the law barring the administration from regulating on the indicators. So we'll see.

"Consistently underperforming": ESSA calls for states and districts to flag schools where traditionally overlooked groups of students (like students in special education, English-language learners, and racial minorities) are "consistently underperforming." But what exactly would constitute "consistently underperforming"? 

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