The White House is making good on its promise to slash regulations, and Congress is poised to follow suit. Their recent actions have cast a cloud of confusion over the recently finalized state accountability rules under the Every Student Succeeds Act (ESSA).
Watching closely are education leaders and entrepreneurs—and with good reason. What happens next will impact the course of school accountability for at least the next decade, as these rules clarify important operational matters and provide cross-state consistency for the new state accountability frameworks that identify and support underperforming schools and subgroups.
Given the importance, it’s useful to review how we got to this point in time and what issues deserve careful consideration. Here are highlights of what’s been happening in Washington.*
How Did We Get Here?
On May 31, 2016, the US Department of Education (ED) issued proposed regulations to guide the states in the development of their new school accountability plans. The plans, required by ESSA, clarify the mechanics and provide consistency to the ways that state educational agencies differentiate between schools that perform well, those that persistently underperform, and what to do about the latter. ED received 21,070 comments and ED staff responded and adjusted the regulations accordingly, publishing the final regulations on Nov. 29. The final regulations clarified many details about the new state accountability plans that state educational agencies were hammering out, and it amended some statutory requirements. However, and this is key, the regulations would not be “effective” until January 30, 2017—10 days after the inauguration.
On Inauguration Day, Jan. 20, 2017, the White House issued a memorandum to temporarily postpone all regulations that had been published but had not yet taken effect for 60 days, which captured the final but not yet effective accountability regulations. This type of regulatory freeze is typical for a new administration, which needs time to sort out what to keep and what to throw out.
The next step, however, is not typical. Congress has the authority under the Congressional Review Act (CRA) to overturn rules issued in the previous session of Congress by the previous President (which is the case here), but the rule has only been used once since the legislation was enacted in 1996. That’s about to change. On Feb. 2, Congressman Todd Rokita (R-Ind.), the Chairman of the Early Childhood, Elementary, and Secondary Education Subcommittee, introduced House Joint Resolution (H.J. Res.) 57. The resolution simply identifies the final published accountability rule in the Federal Register and states that “such rule shall have no force or effect.”
The CRA only needs a resolution-of-disapproval, passed by simple majority in both chambers, to prevent the ESSA accountability rule from going into effect. Members of the House approved H.J Res. 57 on Feb. 7, sending it to the Senate for approval. (Follow the latest updates here.) The Senate will likely pass the resolution within 60 legislative days and the President will sign it, sealing the fate for the accountability regulations. This could all happen before May.
Finally, once Congress passes a resolution under the CRA, then Secretary DeVos cannot reissue the rule in “substantially the same form” or issue a “new rule that is substantially the same” as the disapproved rule.” This, as one can surmise, makes the CRA a blunt instrument.
What to Watch
Those are key points on the timeline. Now, what is vital to monitor and what is not? There is no shortage of technical matters worrying policy leaders and entrepreneurs across the country. (The accountability regulations document is 173 pages long.) But here are four areas that are important to track.
Timelines: The final regulations (now on hold) would have delayed key start dates for the new accountability models to the 2018-2019 school year. If H.J. Res. 57 passes, then we revert back to the statute, which kicks off the new accountability systems (including the identification of schools for comprehensive and targeted support and improvement) in the 2017-2018 school year.
If H.J Res. 57 eliminates the regulations, how will states revert back to ESSA’s statutory timelines when many of the state plans are still under development? There is no clear resolution at this moment and that is concerning for states and districts. On Feb. 10, Secretary Devos did send out a letter to the states noting that the timelines for submitting their plans remains unchanged, but it did not delve into many more details. Those are still under review. (One hopes that means some additional clarification is coming).
Students with disabilities: The final ESSA regulations made efforts to ensure that students with disabilities were included into the calculation of graduation rates and that schools would not have an incentive to provide diplomas that were less rigorous for these students. The CRA would remove this federal emphasis on inclusion for students with disabilities.
The “N-size” issue: This addresses the minimum number of students necessary to be included into a state’s school accountability reporting model. The final ESSA regulation clarified that if a state proposed to use an “n” above 30 it would have to justify the reasons for doing so. Without the regulation, the state could quietly choose a higher number such as 50. That means that schools with 49 English language learners, for example, would not be held accountable for these students in the state’s school accountability model.
The single summative school indicator: To help parents wade through the details of school accountability, the final ESSA regulation specified that each school provide a “single summative” determination based on all the combined indicators. The summative determination was intended to meaningfully differentiate between schools and provide parents and communities clear and understandable information on overall school performance.
Again, H.J. Res. 57 would do away with these final rules—and keep in mind that these are just four of the many issues that the 173-page final rule addresses.
These activities beg the question: are we better off without these rules (an outcome which is likely to happen)? Some argue that the absence of federal requirements is a good thing. These decisions should be left to states and districts, which can carry out the objectives on their own, and likely do it better. That’s the argument that the conservative thinktank FreedomWorks is making.
Other liberal-leaning civil rights organizations are not so convinced that states and districts will always do what’s best for historically marginalized students. The Leadership Conference on Civil and Human Rights, along with a long list of signatories, is asking Congress not to do away with the regulations with such a blunt instrument.
The actual impact of the CRA resolution is not yet clear. But we will soon find out how ready states and districts are to use federal funds with far fewer federal guardrails and guideposts than they have seen in a long time.
*Please note that the term “Washington” has a different meaning from “DC.” Yes, they both refer to the same geographic location, but “Washington” refers to the town that politicians operate in. “DC” is where people live and make their home. You can read up on this distinction here.