A Brief (Not Really), Critically Important (Absolutely) History Lesson

In 1965, President Lyndon Johnson signed into law the Elementary and Secondary Education Act (ESEA). Be clear about this -the ESEA was a Civil Rights law with President Johnson saying that “full educational opportunity” should be “our first national goal.” It offered more than $1 billion dollars a year under its Title I section to help with the cost of educating disadvantaged youth. This new act provided:

1. Grants to districts serving low-income students
2. Federal grants for textbooks
3. Federal grants for school library books
4. Federal funding for special education
5. Scholarships for low-income college students
6. Grants to improve elementary and secondary education. (see information at Dept of Ed)

Enter NCLB

This education act has been reauthorized repeatedly since then, with one reauthorization probably best known: in 2002, it was revised and reauthorized under the name No Child Left Behind (NCLB). This law, authorized under President George W. Bush, expanded the Federal role and focused specifically on holding schools accountable for student progress. If states did not comply with the new assessment measures, they risked losing their Title I dollars. (see No Child Left Behind: An Overview)

Under NCLB, states were to test all students in grades 3 – 8 and one time in high school and were to show how groups such as ELLs, children with special needs, children of poverty, and racial minorities were progressing. By 2013-2014, all students in all states were to have reached “proficiency” though each state could decide what that meant.

Another Reauthorization: ESSA

In 2015, President Obama signed into law the reauthorization of ESEA/NCLB and it was known at the Every Student Succeeds Act (ESSA). This bill was a strong bi-partisan effort with both sides claiming victory. Republicans liked that it returned a lot of power to local/state control. Democrats liked that equity was still a critical issue. The best side-by-side comparison of NCLB and ESSA I’ve found can be accessed here.

A few things to note about ESSA – our current law:

1. Codifies that districts must allow students in underperforming schools the opportunity to transfer to another school – if permitted by the state. So, this level of school choice is ALREADY LAW.

2. Requires that DISTRICTS (not federal government or state) develop their own evidenced- based strategies for school improvement. This is LOCAL CONTROL.

3. Requires that STATES implement their own actions for schools in need of improvement. Again, this is a return to STATE CONTROL.

4. Prohibits the Secretary of Education for prescribing any specific school supports or improvement strategies. (RETURN TO LOCAL/STATE CONTROL)

5. Requires that the annual state report card include a description of the state assessment; a list of schools identified (by the states) as needing improvement; graduation rates; NAEP results; per-pupil expenditures.

6. Eliminates AYP and the 100% proficiency requirement.

7. Prohibits the Secretary of Education from prescribing any part of an accountability system.

8. Allows STATES to decide how much weight to give to tests and what consequences if any should be attached to poor performance. (STATE CONTROL)

Understanding Regulations

Now, laws don’t provide all the details needed for people to be able to follow them. Congress writes a law. The President signs it. And then agencies fill in details. For those of us in education, that agency is the Department of Education (if looking at the Federal level). These details or rules are called regulations.

On May 31, 2016, the DOE published a draft of the regulations that would guide accountability under ESSA. (Don’t you feel smart using all these acronyms!) The DOE invited comments on proposed regulations and 21,000+ were received. Push backs on several areas resulted on the DOE being responsive and revising several areas of regulations. Eventually, Chris Minnich, who is the executive director of the Council of Chief State School Officers (so think the 50 state superintendents) praised the regulations saying, “It is clear the U.S. Department of Education listened to the feedback from state education chiefs across the country and made several important changes to ensure the accountability provisions in the Every Student Succeeds Act can be implemented in all states” (See this report.) So, the STATES were happy with what the regulations told them they needed to do.

And so the states started writing their plans that needed to be submitted to the Secretary by April or (if an extension was given) by September of 2017. Things were going well. For a while, at least.

Enter Trump

Now, the Trump administration has decided to put its own stamp on education. And here’s where things get tricky.

In early February, 2017, President Trump signed an Executive Order that said that for every one new regulation issued at least two prior regulations must be eliminated and “the total incremental cost of all new regulations, including repealed regulations, to be finalized in fiscal year 2017 shall be no greater than zero.” Law experts agree that this order not only lacks details on how to accomplish this, but that it will probably result in a “de facto moratorium on issuance of many major rules” (http://educationnext.org/what-happens-if-obamas-essa-regul…/). What the heck does this mean? Basically, if you get want a new regulation, you have to get rid of two. Keep that in mind. You have to get rid of two.

Getting Rid of Regulations with an Obscure Statute

Usually, it’s hard to get rid of regulations that are part of laws. There’s a public notice time and a public response time. That often brings about some legal wrangling. This is because regulations are slow to be accepted and so tossing them out ought to require public response.

While we were all focused on Secretary DeVos’s hearings (and that “we” most certainly includes me), the US House of Representatives voted to roll back regulations found in ESSA. The Senate is expected to vote to do the same this week and President Trump has already said he’ll sign this. The House decided to eliminate regulations in ESSA concerning accountability using “an obscure statute called the Congressional Review Act, used only once before in 2001 by President George. W. Bush” (see previous citation).

The CRA allows Congress to repeal regulations by a simple majority. It also requires that any new regulations (pay attention to this) cannot be “substantially similar” to the regulations that were struck down. So, removing regulations on assessments via CRA means you can’t tweak the language; the new regulation must be substantially different. And, because of the Executive Order, only one regulation can replace two that are removed and the cost of that one must be zero.

Breathe. There’s more

So, ESSA was made a law; through a series of conversations, the DOE established regulations that the CCSSO liked. Now states and local districts know what to do regarding accountability if they want to receive federal funds. Currently, states must submit their accountability plans to the Secretary by April (or with an extension) by September 2017. And yet, the regulations that let states know what rules to follow, are about to disappear.

Secretary DeVos sent out a letter to the State Chiefs her third day in office and affirmed the April and September deadlines and said that “I am writing today to assure you that I fully intend to implement and enforce the statutory requirements of the ESSA.” She went on to explain that “Congress is currently considering a joint resolution of disapproval under the Congressional Review Act (CRA) (5 U.S.C. §§ 801- 808) to overturn these regulations. If a resolution of disapproval is enacted, these regulations ‘shall have no force or effect.'”

And Thus the Problem

So, we’ll probably find ourselves in a terrible conundrum if the Senate continues down this path. With an Executive Order that offers few details on what to do when regulations are repealed and an obscure act that allows for repealing of regulations with no discussion, and a demand that new regulations be substantially different, states are about to find themselves needing to prepare documents that help them receive needed Federal funds with no regulations to help guide them. The Secretary’s hands will be tied because of the Executive Order. State-level work that has gone into creating plans that specifically address teacher preparation and accountability are now in limbo.

The repeal of ESSA as handled by CRA repeal of regulations when seen in tandem with this Executive Order spells problems for local and state education agencies.

Call your Senators. Tell them not to repeal ESSA. Or tell them that using this obscure CRA provision will create more havoc than anyone wants. And remember, ESSA has its roots in ESEA, an act that wanted to assure that a full educational opportunity belongs to all. Education: a Civil Right.

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