Alexander3Congress and the President gave us the Every Student Succeeds Act in December 2015. Even at 1,000+ pages, the Act left a lot of details to be worked out by the USDED through a negotiated rulemaking process. That process requires the Department to assemble a group of experts to negotiate rules pertaining to: standards, assessments, and supplement-not-supplant, which deals with how states and districts spend their own funds in relation to federal money.  Those experts were named last month and now, just four months after passage of the Act, have already produced several pages of proposed regulation. People watching this process already have concerns about what is being produced, especially as it relates to advanced or gifted students and the usage of Title I funding. Senate HELP Committee Chairman Lamar Alexander, who was largely responsible for the development and passage of ESSA, is not happy about the direction the panel is taking and claims that in several instances their proposals are in direct opposition to the language or the intent of ESSA.

The people named on this panel are:

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Title I Spending

On the issue of supplement-not-supplant, the intent of the law was for federal funding to be used on top of state funding, not be used as a replacement for state education funds. Sounds reasonable until you think about the way schools staff for programs. For special needs and special programs, districts hire teachers that they might not otherwise hire. Recognizing this, Congress wrote ESSA to  specifically prohibit the inclusion of teacher salaries in the assessment of state and local education spending. The draft regulations, however, include teacher salaries. Though Sec. King attempted to defend the language, Alexander was not pleased and threatened to “use every power of Congress to implement the law the way it was written by Congress,” including attaching appropriations riders to block the regulations from taking effect if need be.

The drafting committee is also deeply divided on the issue of Title I spending under the supplement-not-supplant definition being applied.  The rule currently states that LEAs must spend “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.” The words “equal to,” “average,” and “basic educational services,” included in the law do not have a commonly understood meaning. Active administrators on the panel are opposed to the direction people like Liz King want to go, an absolute definition of equal spending. As written, Thomas Ahart contends that the regulation would “force transfers of teachers to balance out personnel expenditures between schools, and could disrupt various methods of budgeting for schools that deal with weighted-student formulas and by full-time equivalent positions.”

Administrators on the panel are arguing that ESSA prohibits the Education Department from dictating to districts what method they use to show that they’re abiding by supplement-not-supplant. They say the regulations being proposed would do exactly that.


ESSA supports the use of computer adaptive testing. The benefit of this kind of testing was that it had the potential to measure the growth in a wider band of student performance. But the draft regulations being proposed go in the opposite direction by limiting testing to “measure a student’s academic proficiency based on the challenging State academic standards for the grade in which the student is enrolled.” (emphasis added) This Departmental insistence on grade level testing is aimed specifically at the underperforming students, at keeping expectations for them high and reducing the performance gap. It completely ignores the needs of advanced or gifted students who will not be challenged by grade level expectations. There will be no standardized method of determining how high their academic proficiency is. And if such academic performance is not measured and doesn’t count, this regulation could give districts an excuse not to provide curricular programs for such students.

Not only does this do a disservice to our most gifted students, it is in violation of the law itself which requires scores for students  “at each level of achievement” and that these scores be included in a state’s annual report card.

Another area of testing that is impacted by these regulations relates to the administration of Algebra I tests. ESSA allows states to offer end of course exams (rather than the state standardized math test) to advanced math students in the 8th grade. The flexibility allowed in the law is being taken away in the regulations which require any state planning to offer the alternative EOC test to demonstrate that it “offers all students in the State the opportunity to be prepared for and to take advanced mathematics coursework in middle school.”

Edexcellence notes, “Advanced coursework is, by definition, meant for students achieving at a higher level than most of their peers. How, then, could a state demonstrate that it offers all students the opportunity to be prepared for such coursework? And would a state, under this provision, have to offer advanced math to all students, regardless of their preparation?”

Alexander should be looking directly at Secretary King, whose appointment he personally pushed claiming that it was needed to make sure the implementation of ESSA proceeded as planned.  He should have looked closer at the nominee whose vision is encapsulated in his statement to the HELP committee that the Department’s role in these regulations is to ensure the law “lives up to its original purpose and legacy as a civil rights law.” That certainly seems to be a different focus than Alexander and others in leadership had when they promised this was a law intended to return control to the states.

USED intends to have accountability regulations ready for public comment in the early spring or summer,   regulations on state plans and innovative assessments out for comment in the fall, and  all regulations completed by the end of the year so states can be ready to complete ESSA implementation next year. In addition he said the Department might issue regulations on homeless and foster care students, and ELLs. MEW will keep an eye on the Federal Register to watch for comment deadlines.

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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