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DeVos Has Approved ESSA Plans That Flout Federal Law, Top Democrat Says

The top Democrat on education issues in the Senate says Secretary of Education Betsy DeVos has approved state education plans that don't comply with the Every Student Succeeds Act.

In a Tuesday hearing before the Senate education committee about federal financial aid for college, Sen. Patty Murray, D-Wash., took the opportunity in her opening remarks to say that not every state's ESSA plan meets the law's requirements for schools with struggling student subgroups. 

Addressing Sen. Lamar Alexander, R-Tenn., the committee chairman, Murray said, "If the department is today ignoring the agreement we made in the law and just choosing to implement whatever it feels like—which I believe they are in their approval of state plans so far—then this committee needs to hear from the secretary directly about how she intends to follow the laws that Congress agrees to."

This isn't a brand-new criticism from Murray, but rather a somewhat fleshed-out version of a previous complaint.

In a confirmation hearing for several Education Department nominees earlier this month, Murray made a general allusion to this concern. On Tuesday, Murray was a little more specific in her concerns about ESSA plans and how the law handles school improvement. But she didn't single out the state or states she was worried about.

However, here's a possible example of what Murray doesn't like: A few ESSA observers have made the case to us that Delaware's plan initially didn't square with the law when it comes to identifying schools needing improvement. The law says that among other schools, states must flag those where:

  1. a student subgroup (think students of color or English-language learners) performs as poorly as the lowest-peforming 5 percent of schools statewide;
  2. a student subgroup is "consistently underperforming." 

Murray highlighted these requirements in her Tuesday remarks. Alexander indicated his general agreement with Murray's point about the importance of following the law, and noted that the law prohibits the secretary from taking certain actions, but didn't respond to her specific criticisms in more detail.

In the plan DeVos initially approved for Delaware, the definition of "consistently underperforming" in requirement number 2 was the same as in number 1. But that flouts the law, critics of Delaware's plan argued. It's important to note that Delaware amended its plan on this score after it got DeVos' stamp of approval. However, it's not clear that the revision (which was approved by the department) would truly change the substance of Delaware's plan that's irritated some ESSA analysts. 

Colorado is still seeking approval for its plan, which doesn't count children who don't take mandated tests when it comes to school accountability. That seems to directly contradict ESSA, which says students who opt out of those exams must be scored as not proficient. It remains to be seen whether Colorado or DeVos' team blinks first on that score. 

The secretary has consistently stated that she wants states to take advantage of all the flexibility ESSA offers them. That matches what Alexander wants from states as well, although ironically enough in July the senator pushed back publicly on criticisms DeVos' department had about Delaware's initial ESSA submission. 

Murray has also previously criticized how DeVos' team talked with states about their proposed ESSA plans, and about the enforcement of ESSA's "equity-focused provisions." The latter include disaggregation of data by student subgroups, and the emphasis on individual subgroup performance.

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