Devil in the Details: New Education Regulations Ignore Battle over Federal Role

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May 26, 2016; Washington Post

Last December, a rare bipartisan Congressional agreement was reached, resulting in new national educational legislation: the “Every Student Succeeds Act,” or ESSA. Democrats and Republicans agreed that it was time to limit the role of the federal government in public education and return responsibility to states and local school districts. Senator Lamar Alexander (R-TN), who led the effort to craft a new direction, described the forces that made this possible:

The backlash to Washington trying to tell 100,000 schools too much about what they should be doing caused people on both the left and the right to remember that the path to higher standards and better teaching and real accountability is community by community, classroom by classroom, state by state, and not through the federal government dictating the solution.

The new law continued the federal government’s commitment to helping all children succeed and to providing targeted funding for at-risk populations. The U.S. Department of Education (DOE) became responsible for creating the regulations necessary to put ESSA into action, and it would be charged to balance the conflicting interests that had worked together writing the new law. How would the federal government see that states are meeting the law’s requirements, particularly when it comes to meeting the needs of at-risk students, while empowering the states? How would a more limited federal role make sure all children receive the educational programs they need to fulfill their capabilities? The Washington Post’s Valerie Strauss described the challenges the new law was trying to meet.

ESSA carries over the No Child Left Behind mandate of annual standardized testing from grades 3 to 8 and once in high school, a requirement that upset critics who believe standardized tests are not good measures of student progress. The “opt out movement,” a revolt against testing has been growing for several years, with many parents refusing to allow their children to take tests that they believe are being used in an improper manner to evaluate students and teachers, and some educators refusing to administer exams they believe are poorly designed.

Education Secretary John King, Jr., described the new regulations when they were released last Thursday:

These regulations give states the opportunity to work with all of their stakeholders, including parents and educators, to protect all students’ right to a high-quality education that prepares them for college and careers, including the most vulnerable students. They also give educators room to reclaim for all of their students the joy and promise of a well-rounded educational experience.

With standardized testing still a hot button issue for many stakeholders while continuing to be seen as a key measure of school effectiveness, the new regulations have quickly become the source of new controversy. The DOE says that the “proposed regulations do not prescribe how those rates must be factored into accountability systems, but they do require states to take robust action for schools that do not meet the 95 percent participation requirement. States may choose among options or propose their own equally rigorous strategy for addressing the low participation rate. In addition, schools missing participation rates would need to develop a plan, approved by the district, to improve participation rates in the future.”

With two words—“robust action”—the DOE reignited the battle over who controls public education.  A disappointed Senator Alexander described the regulations as including “provisions that the Congress considered—and expressly rejected.” Bob Schaeffer, the public education director for the National Center for Fair and Open Testing, or FairTest, a nonprofit that advocates against the misuse and abuse of standardized testing, told the Washington Post in an email:

The draft regulations propose to implement some of the state and district flexibility around assessments and accountability envisioned by the authors of the Every Student Succeeds Act. But Secretary of Education King continues to promote the kind of federal overreach that led to widespread rejection of No Child Left Behind by using overly prescriptive language such as, “For each accountability indicator, there must be three distinct levels of performance assigned to schools that are ‘clear and understandable to the public.’”

Randi Weingarten, president of the American Federation of Teachers, was more direct in her criticism. “Rather than listen to the outcry by parents and educators over hypertesting, the department offers specific punitive consequences for when fewer than 95 percent of students participate in tests.”

But some are concerned the new regulations are not controlling enough and will not ensure states will meet the needs of at-risk students. Nancy Zirkin, director of policy at the Leadership Conference on Civil and Human Rights, spoke for many in the civil rights community:

Without meaningful enforcement, laws are just words on paper. While we review this new regulation with our national and local partners, we look forward to seeing the Secretary’s continued commitment to ensuring ESSA works for low-income students, students of color, English learners, students with disabilities and other students who are too often left behind.

Is this really a compromise that can’t stand? Can the federal government satisfy those who worry that many states will ignore the needs of minority and at-risk students and allow them to receive a second-rate education at the same time it pleases those who see a reduced or no role for federal officials in public education? Can they find a way to assess school effectiveness that relies less on standardized testing but still ensures all students are respected?—Martin Levine