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February 7, 2017; Education Week

In an unusual show of bipartisan agreement, the last Congress was able to pass a bill reauthorizing federal education policy and funding, the Every Student Succeeds Act (ESSA). Senators and representatives from both sides of the aisle agreed it was time to rebalance responsibility for public education, returning more responsibility to the states. On Tuesday, the House of Representatives approved bills to revoke some of the rules the Department of Education had issued to implement the new law.

According to Senator Lamar Alexander (R-TN), who chairs the Health, Education, Labor & Pensions Committee (HELP), ESSA was a response to the earlier No Child Left Behind, which it largely rewrote: “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.” But, as NPQ noted shortly after the Act was signed into law, controversy soon arose as the Department of Education began to establish the rules guiding how states were to implement ESSA.

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?

ESSA required states to “to have an accountability system that takes into account both academic factors (like test scores, graduation rates, and English-language proficiency) and at least one school quality or student success indicator (like school climate, access to advanced coursework, or chronic absenteeism). They must identify schools for ‘comprehensive improvement’ (lowest-performing schools and those where less than two-thirds of students graduate) and ‘targeted improvement’ (schools that might be doing well overall, but where subgroups of students are struggling).”

The Department of Education–issued regulations set up a timetable for creation of state rules to define the specific metrics that could be used to measure progress and acceptable performance. Rules were also established for overseeing teacher-training programs and other components of ESSA. After receiving comments to the first drafts of the new rules, according to Education Week, the final regulations were seen positively and as responsive to state concerns.

The Council of Chief State School Officers seems pretty happy with the final regulations, which could bode well for their staying power. “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,” said Chris Minnich, CCSSO’s executive director in a statement. “We look forward to working with the new administration to offer states the guidance, flexibility and stability they need to create plans under this new law that will best meet the needs of each child.”

The Republican majority in both Houses didn’t share this judgment. On Tuesday, using the rarely used Congressional Review Act, Congress approved bills that will reverse these rules and leave it to Betsy DeVos and the Trump administration to decide how they wish to proceed.

According to Tyler Hernandez, spokesman for the House Education Committee, “We are sending a signal that we are unhappy with these regs.” Rep. Todd Rokita (R-IN), the chairman of the House education subcommittee on K-12 education, said on Tuesday that the ESSA rules ran counter to the spirit of the law, which was meant to return power to state and district leaders. “Here we have a federal agency inserting itself, making law, not just interpreting it, but making law.” Getting rid of the rules, he said, would not impede states from shifting to ESSA as they saw fit. (ESSA kicks in for the 2017–18 school year.)

Rep. Jared Polis (D-CO) sees the move to revoke from a different perspective. In comments reported by Ed Week, he said that “ditching the ESSA rules would be damaging and disruptive, not liberating, particularly for states that have worked for over a year to shift to the law.”

This resolution would undo all of that state-level work…creating mass chaos and uncertainty in public education, and destroy the civil rights safeguards that Republicans and Democrats worked so diligently to put in the Every Student Succeeds Act.

As a result of the repeal, the federal role in education will fall into a state of limbo. Repealing the current regulations will weaken the feds’ ability to protect children from the biases that were at play in the pre-Civil Rights era. As Liz King, director of education policy for the Leadership Conference on Civil and Human Rights, said:

Simply repealing the ESSA regulations and not replacing them endangers the effectiveness of the law. I believe that Senator Alexander wants the law to be successfully implemented. I don’t see how that happens if the Department of Education exercises zero oversight of what’s going on… everyone should be worried if in the absence of regulations the department either rubber-stamps whatever states want to do, or makes decisions through an opaque process like that which prevailed when No Child Left Behind waivers were given to states.

As this effort moves to the Senate, the debate will continue, pitting Republican governors and their educational leaders against the NAACP Legal Defense Fund and other civil rights advocates.—Martin Levine

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