Education Week - February 15, 2017 - 15
Uncertainties Ahead as Congress Takes Aim at ESSA Regulations
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Act. That statute also prohibits executive agencies from subsequently
issuing "substantially similar" regulations for the same law. The practical and legal impact of that phrase
remains unclear, however.
So it remains to be seen how the
Education Department under its
new secretary, Betsy DeVos, would
try to write new accountability rules
for ESSA, or if the department would
undertake such an effort at all.
Rep. Todd Rokita, R-Ind., who introduced the resolution at the start
of this month, denied that he was
trying to "gut accountability" under
ESSA. Instead, he said, he was trying to ensure that ESSA would grant
states and districts the power federal
lawmakers intended when they approved the law.
"Here we have a federal agency inserting itself, making law-not just
interpreting it, but making law," Rokita said on the House floor last week
before the vote.
Asked why the National Governors Association supports overturning the rules, Stephen Parker, the
NGA's legislative director for education issues, used two examples: the
provisions on testing-participation
rates, and the minimization of the
school quality indicator's role in
school improvement designations.
"These two references illustrate
additional requirements on local
school districts and states that we
believe are inconsistent with the
law," Parker said.
But Rep. Jared Polis, D-Colo., argued on the House floor that overturning the rules would trigger "mass
chaos and uncertainty" and destroy
the bipartisan basis of the law.
Polis and Rep. Bobby Scott, R-Va.,
the top Democrat on the House
education committee, later released
a statement saying the resolution
with the clarity they need around the
implementation of the law."
The ESSA rules don't just deal
with big-ticket issues like indicators
of school quality and consistently
underperforming students. They also
address such matters as calculating
state graduation rates, determining
the process by which certain students
get alternative diplomas, and laying
out how students who exit special
start with their ESSA plans," Hyslop
said. "Without that, I do worry that
we're moving backwards to an era
where there really wasn't much oversight of what states were doing."
Scrapping the regulations wouldn't
just leave states in the dark about
whether their ESSA accountability
plans would pass muster with the
Education Department. It could also
leave states open to inconsistent
I do worry that we're moving backwards to an era where there really
wasn't very much oversight of what states were doing."
Former U.S. Department of Education staff member
would "undermine public education."
And Torres of LULAC said the
rules represent a responsible check on
states by the Education Department.
The leading group representing
the nation's state schools chiefs has
stressed the need for stability, irrespective of what happens to the
Chris Minnich, the executive director of the Council of Chief State
School Officers, indicated that overturning the rules "could disrupt the
progress states have made over the
past year to transition to ESSA, unless the U.S. Department of Education acts quickly and provides states
education services are included in accountability systems.
The current regulations also say
that states must submit their accountability plans in either April or
September of this year.
Undoing the rules would affect
states in ways that many lawmakers and other officials probably aren't
anticipating and would leave states
without a basic framework to use for
their ESSA plans, said Anne Hyslop,
who helped write the rules for the
Education Department. (She no longer works at the department.)
"Those are the ground rules for
states in terms of where they should
treatment by the department under
ESSA in the years ahead.
All of that means, Hyslop argued,
that states could see a return to life
under No Child Left Behind Act
waivers, in which state officials and
others often became frustrated with
the federal department over how
waivers were given out and the lack
of clarity in the process.
Sen. Lamar Alexander, R-Tenn.,
the Senate education committee
chairman, and other Republicans
often said the department was
overstepping its authority during
the NCLB-waiver process.
"It is a little bit of an ironic twist on
Connecting the Dots
On ESSA and PD:
What Education Companies Should Know
this," Hyslop said.
If the department chose to craft
new regulations, such a process
would likely take from six months
to a year, according to Hyslop. That
could mean such rules would become
final well after the 2017-18 school
year, when ESSA kicks in.
Maintaining Law's Integrity
But supporters of overturning the
rules point out that the Every Student Succeeds Act prohibits the education secretary from issuing conditional waivers of the law's provisions.
Since many of the lawmakers who
wrote ESSA are still in Congress,
federal lawmakers "feel a great
sense of ownership over the very
strong, bipartisan law that they
supported," and therefore won't let
the law be undermined by arbitrary
federal decisions, said Noelle Ellerson, an associate executive director
In addition, under an Education
Department now headed by DeVos,
states might be able to count on a lot
of leeway even if the current ESSA
rules remain on the books. If the rules
are overturned, people could expect to
see ESSA state plans approved without too many obstacles, said Smarick,
of the Americsan Enterprise Institute.
"It's really hard for a department,
without regulations, to start to reject all these state plans that are
consistent with the statute," Smarick said.
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* MICHELLE R. DAVIS, senior writer,
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