Monday, March 13, 2017

Senate Rescinds Education Regulations, Clearing the Way for Additional State Discretion, Disparate Accountability Schemes, and Vast Inequality

Last week, in two separate votes, the Senate voted to rescind to different aspects of the regulations the Obama administration had passed to implement the Every Student Succeeds Act. On Wednesday, the Senate voted to rescind teacher training and evaluation regulations.  On Thursday, the Senate voted to rescind regulations regarding the identification and assistance of struggling schools.  Previously, I was skeptical that it would come to this, primarily because the Department of Education itself lacked a leader who understood the regulatory structure and could provide an alternate vision moving forward.  Regardless, without a new vision, the regulation rescission opens the way for the Wild Wild West of state implementation plans.

The statutory text of the Every Student Succeeds Act extends an enormous amount of discretion to states.  Absent regulatory guidance, states lack any clear starting point for developing plans to implement the Act's accountability system.  For instance, the Act indicates that states must consider proficiency tests, measures of growth, and graduation rates, but does not indicate how much any of these factors must count in a state's accountability plan, nor does it explain how each one of these measures is to be calculated.  The only directive in the statute is that together these objective factors much count for more than other factors that a state might consider.  Moreover, a state is free to consider almost any other factors its deems appropriate for assessing schools.  The Obama administration's regulations did not eliminate this flexibility, but attempted to provide some guidance.  With the rescission, it is altogether possible that the Department of Education will receive fifty entirely distinct approaches to implementing the Act and assessing school effectiveness.  And the Secretary is going to be obligated to approve them.

If one sees states as engines of educational equality and improvement, this flexibility is a good thing.  But if is history is any guide, this flexibility portends serious problems.  States' historic resistance to desegregation, racial equality, and funding fairness is well-documented.  Some, including the Secretary of Education, assume these are problems of the past, but as I detail in Abandoning the Federal Role in Education, the past is repeating itself, particularly in school funding:

Between 2008 and 2012, nearly every state in the country imposed large budget cuts in education. Some were more than $1000 per pupil and enacted in multiple years. The most obvious results were teacher lay-offs, pay cuts, increases to class size, and a downgrading of teacher quality among new hires. Sometimes less obvious was the fact that these cuts were targeted at or felt most directly in the highest need districts.

These budget cuts cannot simply be written off to the Recession. To the contrary, states regularly enacted cuts in excess of what was necessary and maintained most of them after tax revenues returned to pre-recession levels. States also cut traditional public school budgets at the same time that they were doubling funding for charters and sometimes tripling and quadrupling funding for vouchers. As of 2014, two-thirds of states were still funding education at a lower level than they did in 2008. Some states were a full 20 percent or more below the pre-recession levels. In short, states’ willing and active decisions enact deep cuts to education and maintain them over several years is troubling evidence of what, at best, is ambivalence to equality and adequacy and, at worst, hostility.

In sum, returning massive educational discretion to states through ESSA is inconsistent with the goals of educational equality and adequacy. States have historically served as an impediment to racial equality and meeting the needs of disadvantaged students. The federal government and ESEA have served as an important counterweight. In the absence of that counterweight, history offers no basis to believe states will improve educational opportunities for those in need. Moreover, historical trends aside, this return of power occurs at the same time when states are regressing in their commitment to adequate and equal educational opportunities. In this context, the fact that states have welcomed ESSA should be cause for alarm.

While some extol state and local flexibility as a normative value, it has the potential, in many states, to become synonymous with inequality, just as states' rights once were synonymous with segregation.  Whether anyone intends this result is beside the point.

 

http://lawprofessors.typepad.com/education_law/2017/03/senate-rescinds-education-regulations-clearing-the-way-for-additional-state-discretion-disparate-acc.html

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