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At ESSA Negotiated Rulemaking, Lots of Conversation But No Major Action


If you sat through the long, first day of negotiated rulemaking at the U.S. Department  of Education on the Every Student Succeeds Act, you heard a lot of high-level ideas about funding inequities and testing—but probably don't have a clear idea about exactly what regulations for the new law will look like.

Some background: ESSA keeps in place annual testing requirements, as well as  spending rules that call for districts to use federal dollars as an extra—not a replacement—for their own spending.

But the law gives districts more flexibility, both on tests—for instance, by allowing high schools to use a nationally recognized test in place of the state exam—and on making it easier for districts to prove that federal dollars amount to an extra and don't replace local funds. (More on things that the regulators will consider on supplement-not-supplant here, and on assessment here.)

Now it's up to a team of negotiators at the Education Department to figure out how to fill in the blanks on those two areas. A committee including teachers, state chiefs, state board members, civil rights advocates and others will meet periodically over the next several weeks and try to hash out agreement. If they can't come to an accord, the Education Department will regulate through the normal process. (Which is less cumbersome, but, arguably, less inclusive.)

The committee can reach agreement on either supplement-not-supplant, assessments, or both. But it can't agree to certain things under each topic, and fail to reach a consensus on other things. For instance, the regulators couldn't come to an agreement on say, computer-adaptive exams, but stay deadlocked on how tests for English-language learners should work they would 

U.S. Secretary of Education John B. King Jr. kicked off the conversation by reminding the negotiators—and a packed audience—that, in his view, ESSA is a civil rights law.

"Our North Star has to be equity," he said.

Supplement-not-supplant dominated most of the discussion on the first day, with negotiators tackling, for instance, what kind of enforcement action states should take in districts that don't comply.

At least one of the educators on the committee said it would be a mistake for states to withhold funds from districts that don't comply with the law because that would only be punishing children. Instead, districts might have to communicate their problems to their community and have the community hold them accountable. 

And there was discussion of topics that aren't really covered under supplement-not-supplant.

For instance, Karen Hawely Miles, the executive director of Education Resource Strategies, who is not a negotiator but helped lay the groundwork for discussion of supplement-not-supplant, noted that poor students are often shortchanged because teachers at schools serving lower-income children tend to make less, as a group, than their counterparts at wealthier schools. (Addressing that issue would arguably mean writing regulations on salary comparability, something Congress declined to tackle when it was writing ESSA.)

There was also an in-depth discussion of how computer-adaptive tests can accurately capture student learning. These tests tend to be good at pinpointing where students are, but Alvin Wilbanks, the superintendent of Gwinnett County Schools, said he didn't want to see students growing and growing, but never reaching proficiency.

For most areas of rulemaking, the department just put forth discussion questions. But when it comes to computer-adaptive tests, the agency actually proposed some language, essentially aimed at measuring whether or not a student is on grade-level.

And overall, it seemed the committee liked what the department floated—Delia Pompa, of the Migration Policy Institute, for instance, noted that it's going in the right direction, given where the field is right now.

So what happens next? Two more days of discussion this most of which will focus on assessments. The department, meanwhile, will try to translate all the high-level talk into hard-and-fast regulations that the committee can accept—or not. 

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