ESSA Negotiated Rulemaking Committee Reaches Consensus on Testing Regulations

The U.S. Department of Education’s (USED’s)  negotiated rulemaking committee concluded its negotiations on April 19, reaching consensus only on the Department’s proposed regulations governing assessments administered under Title I of the Every Student Succeeds Act (ESSA).

The negotiated rulemaking committee did not reach consensus on or approve the proposed regulations submitted by the USED relating to “supplement, not supplant” provisions of Title I. Those provisions are intended to govern the manner in which school districts demonstrate that federal funds are being used to supplement, not supplant, State and local funds. The impasse followed eight days of negotiations, in which Wisconsin Supt. of Public Instruction Tony Evers played a key role.

The practical effect of this outcome is that, with respect to assessments, the USED is bound to the agreement reached by negotiators. The USED will proceed with the formal rulemaking process to promulgate the committee’s draft regulatory language with respect to assessments. The USED will issue a Notice of Proposed Rulemaking in the Federal Register and the public will have an opportunity to comment on the proposed regulations.

With respect to “supplement, not supplant,” the failure of the negotiating committee to reach consensus allows the USED to proceed with issuing proposed regulations to govern “supplement, not supplant” without being bound by the negotiations or the draft regulations discussed during negotiations. The USED may proceed with formal rulemaking on “supplement, not supplant” but it must notify Congress of the proposed regulations. Congress may provide comments on the proposed regulations but will likely engage in more vigorous oversight of the Department’s regulations. As noted in an earlier post, a battle could be brewing over this issue.

Copies of the regulations and transcripts of the negotiated rulemaking meetings will be posted on the Department’s website as soon as possible.

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