ESSA Rulemaking Gets Contentious

In previous postings, we have detailed the work of the negotiating committee that has been engaged in trying to reach consensus on new regulations to implement the Every Student Succeeds Act (ESSA).   State Supt. Tony Evers is among the committee’s members.

This post provides an overview of last week’s meetings. Successive posts will describe committee’s meetings from last week in greater detail.

A  bit of background may be in order.

As noted in earlier posts, for certain issues, the ESSA requires the U.S. Department of Education (USED) to use a process known as “negotiated rulemaking” when writing regulations. Under “negotiated rulemaking” representatives from USED and a committee comprised of stakeholder group members are supposed to negotiate the terms of a proposed regulation

Issues for which “negotiated rulemaking” is required include standards, assessments (which includes the use of computer-adaptive tests, allowing advanced math tests to count for 8th grade accountability, using “nationally recognized tests” in place of state exams for high school accountability, and tests for special populations of students) and “supplement-not-supplant” (which addresses how federal dollars augment rather than replace local spending).

The second round of discussions is now complete and finding agreement has been difficult. Of the 9 topics discussed last week, an agreement was reached on only one–Computer Adaptive Testing.  At times the debate has been downright contentious.

Under the current schedule, committee negotiators have only two more meeting days (April 18 and 19) to resolve their differences.  It may be a tough hill to climb.

On April 1,  the USED sent proposals to the committee that it indicated were in response to input from negotiators given during the committee’s first three-day session in March, including  proposed regulations on assessment and on the requirement that federal Title I-A funds supplement, not supplant, state and local resources.

Advocates representing school districts, state education department chiefs, school board members, and other practitioners were none too happy about the department’s proposed regulations on “supplement-no-supplant.” An, it turns our, neither was the chairman of the Senate committee that oversees the department, Sen. Lamar Alexander (R-TN). (More on that in another post.)

ESSA makes a change to supplement-not-supplant aimed at giving districts more flexibility to show that federal funds are an extra, not a replacement. Under the new law, local officials can come up with their own methodology for showing how they allocate state and local funding and therefore that federal money is indeed  a supplement. The department can fill in the blanks on that by rule and coming to an agreement on how to fill in those blanks is what is tripping up the negotiating committee.

Complicating matters, the proposal from the USED was seen by many as appearing to dictate a test based on how much money schools are spending per kid in Title I and non-Title I schools, which, it was feared, could bring things such as teacher salaries into the mix.

A summary of the proposed regulations states in part that districts can select their methodology, as long as it “[r]esults in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools.”

As Education Week reported:

“The department’s proposal appears to call for local expenditures to be the same between Title I schools, which receive funding through the federal program to aid disadvantaged students, and non-Title I schools. That could take into account actual teachers’ salaries, some say.”

“What’s more, advocates for school districts argue that if Congress had wanted funding for salaries to be equal at every school, lawmakers would have made a change to another test that districts must go through before they can tap federal Title I funds: comparability, which calls for resources to be the same between Title I and non-Title I schools.”

Before the second round of negotiations even got underway, the National School Boards Association (NSBA) joined eight other national organizations on a letter to the USED encouraging it to refrain from defining terms and aspects of the new law that Congress gave states and local school districts the flexibility to determine.

That letter stated its case this way: “Regulations and accompanying guidance should clarify how supplement-not-supplant is separate and distinct from maintenance of effort and comparability, and steer clear of anything that would change or modify any of those provisions beyond the statutory changes already signed into law.”

Civil rights groups, however, saw the department’s proposal differently.  Liz King, a non-voting member of the negotiating committee, and director of education policy at the Leadership Conference on Civil and Human Rights, said that if Congress  hadn’t wanted to continue to require that federal funds be an “extra” and not a replacement for local funds, it would have gotten rid of supplement-not-supplant altogether. But Congress didn’t do that. It kept supplement-not-supplant.

According to  King, any coherent way of calculating state and local funding allocations in supplement-not-supplant would require districts to include actual teacher salaries. She’s not sure how a district would prove federal funds are an additional benefit using a test that doesn’t track the actual funds spent at each school.

Despite hours of discussion on this issue, negotiators could not agree how to balance various concerns.  As a result,  USED  staff will go back to the drawing board to try to craft new language for the regulation that will be discussed when  the negotiating committee comes back for a third ESSA negotiating session from April 18-19.