Screen Shot 2016-01-21 at 10.39.27 AMWasting no time in getting the regulations in place that will flesh out the terms in ESSA, the US Dept of Education is seeking comments from interested parties on proposed regulations to implement programs under Title I of the Elementary and Secondary Education Act of 1965, as amended (title I) in the Every Student Succeeds Act (ESSA) of 2016.

From the federal notice of proposed rulemaking:

Programs under title I are designed to help disadvantaged children meet high academic standards. The Secretary invites advice and recommendations concerning topics for which regulations may be helpful to assist States, school districts, and schools to implement the new law. In addition, we will convene two regional meetings at which interested parties may provide additional advice and recommendations.

The 1,000+ page bill that had only two days of review by legislators before passage, already has a whole host of regulations associated with it ready to go. The bill was passed on December 10, 2015. The first of two public hearings on the proposed rules was held January 5th in DC and another January 19th in California. It was no coincidence that the bill was passed just before the holidays and that the public comment period was  ridiculously short given the complexity of the bill. DC isn’t really interested in hearing from the public.

You may use the eRulemaking portal to provide comments.

Advice and Recommendations

The Secretary invites advice and recommendations from interested parties involved with the implementation and operation of programs under title I concerning topics for which regulations or nonregulatory guidance may be necessary or helpful as States and LEAs transition from NCLB and implement the ESSA. The Secretary specifically invites advice and recommendations from State and local education administrators, parents, teachers and teacher organizations, principals, other school leaders (including charter school leaders), paraprofessionals, members of local boards of education, civil rights and other organizations representing the interests of students (including historically underserved students), representatives of the business community, and other organizations involved with the implementation and operation of title I programs.

Under the ESSA, prior to issuing proposed rules under title I on standards, assessments under section 1111(b)(2), and the requirement under section 1118 that funds be used to supplement, and not supplant, State and local funds, the Department must establish a negotiated rulemaking process.

Negotiated rulemaking can improve the substance of regulations; increase understanding of, and support for, those regulations; encourage affected parties to communicate with each other and share information, knowledge, expertise, and analysis; and discourage expensive and time-consuming litigation concerning the regulations.

The Secretary is considering conducting negotiated rulemaking on academic assessments and the requirement that funds under title I, part A be used to supplement, and not supplant, State and local funds. The Secretary specifically invites comments on these issues.

If the Secretary determines to proceed with negotiated rulemaking, the Secretary will select individuals to participate in this process from among the individuals or groups providing advice and recommendations on title I regulatory issues. The Secretary will publish a separate document in the Federal Register announcing our intent to establish a negotiated rulemaking committee, soliciting nominations of potential negotiators, and providing details about the negotiated rulemaking process.

In addition to inviting specific comments on the issues on which the Secretary is considering conducting negotiated rulemaking, the Secretary invites comments on other regulatory issues concerning provisions under title I, including suggestions that regulations are not needed to resolve a particular issue.

Background: On December 10, 2015, the President signed into law the “Every Student Succeeds Act” (ESSA), amending the Elementary and Secondary Education Act of 1965 (ESEA). The ESSA reauthorizes the ESEA and advances the ESEA’s legacy of equity and opportunity by, among other things, requiring States to hold all students to high academic standards that prepare them for success in college and careers. The ESSA also requires that, if students fall behind in meeting these standards, States and local educational agencies (LEAs) implement evidence-based interventions to help them and their schools improve, with a particular focus on the lowest-performing schools, high schools with low graduation rates, and schools in which subgroups of students are underperforming.

The programs included in title I are designed to help disadvantaged children meet high academic standards. These programs include: Improving Basic Programs Operated by State and Local Educational Agencies (part A); State Assessment Grants (part B); Education of Migratory Children (part C); Prevention and Intervention Programs for Children and Youth who are Neglected, Delinquent, or At-Risk (part D); and Flexibility for Equitable Per-Pupil Funding (part E).

The ESSA maintained a number of requirements for, and made a number of significant changes to, the title I programs, including the following:

  • Maintaining the requirement for statewide assessments in at least reading/language arts and mathematics in each of grades 3-8 and once in high school; and in science in each of three grade spans (3-5, 6-9, and 10-12), while adding flexibility related to locally selected high school assessments and innovative assessment systems.
  • Eliminating the requirement to calculate adequate yearly progress (AYP) and replacing it with a requirement for each State educational agency to develop an accountability system that—
    • Includes State-designed, long-term goals and measurements of interim progress for all students and separately for each subgroup of students, on academic achievement and graduation rate, that expect greater progress from groups that are further behind;
    • Annually measures, for all students and separately for each subgroup of students, the following indicators: Academic achievement (which, for high schools, may include a measure of student growth, at the State’s discretion); for elementary and middle schools, a measure of student growth, if determined appropriate by the State, or another valid and reliable statewide academic indicator; for high schools, the four-year adjusted cohort graduation rate and, at the State’s discretion, the extended-year adjusted cohort graduation rate; progress in achieving English language proficiency for English learners; and at least one valid, reliable, comparable, statewide indicator of school quality or student success; and
    • Establishes a system of meaningfully differentiating all public schools on an annual basis that is based on all indicators in the State’s accountability system and that, with respect to achievement, growth or the other academic indicator for elementary and middle schools, graduation rate, and progress in achieving English language proficiency, affords: Substantial weight to each such indicator; and, in the aggregate, much greater weight than is afforded to the indicator or indicators of school quality or student success.
  • Eliminating the requirement to identify schools for improvement, corrective action, or restructuring based on missing AYP over a number of years and instead requiring—
    • Identification of, and comprehensive, evidence-based intervention in, the lowest-performing five percent of title I schools, all public high schools with a graduation rate below 67 percent, and public schools in which one or more subgroups of students are performing at a level similar to the performance of the lowest-performing five percent of title I schools and have not improved after receiving targeted interventions for a State-determined number of years; and
    • Identification of, and targeted, evidence-based intervention and support in, schools in which any subgroup of students consistently underperforms.
  • Maintaining and updating the requirement that State title I plans describe how low-income and minority children enrolled in title I schools are not served at disproportionate rates by ineffective (this term was “unqualified” in the prior version of the ESEA), out-of-field, or inexperienced teachers.
  • Expanding the list of elements that must be included in State and district report cards (e.g., adding a requirement to report per-pupil expenditures of Federal, State, and local funds).
  • Maintaining the requirement that title I, part A funds be used to supplement, and not supplant, non-Federal funds, but revising the manner in which an LEA must demonstrate compliance with this requirement by requiring an LEA to demonstrate that the methodology it uses to allocate State and local funds to each title I school ensures that the school receives all the State and local funds it would receive in the absence of participation in title I.

Read the entire NPRM here.


This phrase jumps out as being central to the problem with this legislation (and other ed reforms).  ESEA requires “States to hold all students to high academic standards that prepare them for success in college and careers.”  This is not a statement about the government’s obligations for providing education. This statement clearly tells the student they must perform to a level deemed acceptable to the State. There is nothing the State is prohibited in doing to the student to ensure that the student reaches what it deems as high academic standardized performance. Students who do not meet these standards are defined as “underperforming” and schools are encouraged to change their performance by whatever means possible.

The requirement to provide a system to “differentiate” schools means that the concern is not about whether or not schools are providing adequate educational opportunity, it is to establish the means to make schools continually jump through hoops in order to boost their ranking in relation to other schools. Again, there is no end to the changes that can be introduced to keep this dance going.

Reducing school performance to a ranking number also makes it much easier (i.e. less emotional) to eradicate some schools who continue to have low numbers. The elementary school which services an endless stream of new refugees that move into local low income housing, who have little knowledge of English, though they do improve student language skills, will perpetually have low scores on 3rd grade language arts (and likely math) tests. These schools will bounce around at the bottom of the ranking and be targeted for ineffective and unnecessary intervention programs or closure. The fact that the local community is happy with the services provided by the school is irrelevant.

The imprint of the business community on this law is clear. They regularly use rankings to get rid of poor performing sales employees, divisions and products that do not show continual growth, even though there might be a loyal consumer base for such products. This is not about making sure people are not walking around as blathering ignoramuses who can be easily duped or manipulated by those who have access to basic reading, oratory and mathematical skills. That is something the people who first promoted public education saw as a necessity for a peaceful society. This is about the business model of continual product improvement and return on investment which was not part of the original social compact to pool our money to pay for education. There is no limit to the amount of money that can be pulled from the public if the goal is the universal perfect human product who will be “successful” in any career.

Comments on ESSA regulations due by today January 21, 2016.

See additional posts on this law Here, Here, Here and Here.

Anne Gassel

Anne has been writing on MEW since 2012 and has been a citizen lobbyist on Common Core since 2013. Some day she would like to see a national Hippocratic oath for educators “I will remember that there is an art to teaching as well as science, and that warmth, sympathy and understanding are sometimes more important than policy or what the data say. My first priority is to do no harm to the children entrusted to my temporary care.”

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