Education Law Prof Blog

California's Every Student Succeeds Plan Fails an Incredibly Low Standard: Are We Missing a Subversive Plot?

In full disclosure, I have not read California's state plan for complying with the Every Student Succeeds Act (ESSA).  But if we assume that the Department of Education and the peer reviewers of the plan are minimally competent and fair, California's plan is shocking.  It went out of its way to not comply with ESSA.  This is no small task. The Department is now rejecting California's plan.

Putting aside the merits of the ESSA in general, it asks very little of the states--far less than No Child Left Behind asked for the prior decade and a half.  As I explain in Abandoning the Federal Role in Education: The Every Student Succeeds Act

The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. . . . Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.

Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.

States were free to devise almost any plan they could conceive, as long as they came up with something--as long as they filled in the blanks.  Pick a word, any word.

The problem with California's plan is that it appears to not have filled in some important blanks.  In particular, it did not set achievement goals.  Those goals could have been high or low.  California apparently chose neither.  As I was railing on the ESSA and how much authority it devolved to the states in Abandoning the Federal Role, I could not imagine a state would go this far.  Instead, I thought states would use the flexibility to manipulate and cover up inequality.  A few of the early ESSA plans did just that.  And the law allows it.  

For some reason, California does not appear interested in manipulation.  

Almost all of the Department's comments go to the issue of picking achievement and graduation targets.  It makes no suggestion of what those targets should be because, of course, California can choose.  I found this comment most telling:

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From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism

Michael Heise's forthcoming article in Columbia Law Review, From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism, is available on SSRN.  He offers this abstract:

When passed in 2001, the No Child Left Behind Act represented the federal government’s most dramatic foray into the elementary and secondary public school policymaking terrain. While critics emphasized the Act’s overreliance on standardized testing and its reduced school-district and state autonomy, proponents lauded the Act’s goal to close the achievement gap between middle- and upper-middle-class students and students historically ill served by their schools. Whatever structural changes the No Child Left Behind Act achieved, however, were largely undone in 2015 by the Every Student Succeeds Act, which repositioned significant federal education policy control in state governments. From a federalism standpoint, the Every Student Succeeds Act may have reset education federalism boundaries to favor states, far exceeding their position prior to 2001.

While federal elementary and secondary education reform efforts since 2001 may intrigue legal scholars, a focus on educational federalism risks obscuring an even more fundamental development in educational policymaking power: its migration from governments to families, from regulation to markets. Amid a multidecade squabble between federal and state lawmakers over education policy authority, efforts to harness individual autonomy and market forces in the service of increasing children’s educational opportunity and equity have grown. Persistent demands for and increased availability of school voucher programs, charter schools, tax credits programs, and home schooling demonstrate families’ desire for greater agency over decisions about their children’s education. Parents’ calls for greater control over critical decisions concerning their children’s education and schooling options may eclipse state and federal lawmakers’ legislative squabbles over educational federalism.

Michael and I agree on a lot in this article.  The title of my article, Abandoning the Federal Role in Education: The Every Student Succeeds Act, largely speaks for itself.  That article traces the federal role in education from the 1960s until today, arguing that the Every Student Succeeds Act entirely reverses the expansion of the federal role in education, which had been building for decades. 

Heise's article, however, goes beyond mine in certain respects, focusing on a factor absent from my analysis: the role of individual autonomy.  In other words, from Heise's perspective, it is not just a fight between the feds and the states.  It is a fight over family decisionmaking as well.  Thus, the return of power to states is not just to serve the interests of state, but that of families.

Interestingly, more recent events add new wrinkles that may require updating of both Heise and my thoughts.  Recent surveys and reports indicate that some family autonomy policies are unpopular, at least to the majority. The shift is abrupt in some instances.  A new survey shows that charter support has plummeted by 12 percent in the last year.  Other reports indicate strong opposition to the current administration's push for more vouchers and charters.  

Disaggregating these shifts is difficult.  It could be that the public dislikes the messenger but not necessarily the message.  Or it may be that the public supports the expansion of choice, but not when it is perceived as being at the expense of traditional public education.  The latter, however, presents an implementation challenge.  To what extent can private choice expand without harming public education?  Minimal to moderate expansions may pose little risk, but a tipping point likely exists, as I detail in a forthcoming article titled, Preferencing Private Choice.

New State Accountability Systems Reveal the Federal Role in Education Has Faded

Last year, I wrote that the Every Student Succeeds Act “ESSA reverses the federal role in education and returns nearly full discretion to the states.”  I predicted that the flexibility afforded to states in devising their new ESSA accountable schemes would make “educational opportunity a random occurrence rather than a legal guarantee.”  States would manipulate their accountability schemes and rely on a convoluted set of factors that effectively make it impossible to get a sense of school performance. 

Early looks at these accountability systems suggest my prediction was correct.  A recent analysis of California’s new ESSA system found,

Nearly 80% of schools serving grades three through eight are ranked as medium- to high-performing in the new ratings, earning them positive colors on report cards sent to parents. Last year in state testing at those same schools, the majority of students failed to reach English and math standards. More than 50 of those schools whose average math scores fell below proficiency receive the dashboard’s highest rating for math.

At the same time, Maryland is also considering legislation that would severely restrict the weight the state board of education could place on student achievement.  The Washington Post reports, “Among the restrictions being advanced by lawmakers: limiting measures of actual school effectiveness (student achievement, student growth and graduation) to 55 percent of a school’s accountability rating, in favor of factors such as teacher satisfaction; . . . and barring the state from taking significant actions to reform the worst-performing schools, even after districts have had years to set them straight.”  

State flexibility is not, as Betsy DeVos claims, being use to unleash the creativity and good faith efforts.  It is being used to hide the fact that states are and have been doing a poor job providing equal and quality educational opportunities.  To be clear, this does not mean that the No Child Left Behind took the correct approach or that standardized tests should drive school quality. But a common and transparent yardstick for school accountability is important.  ESSA is allowing states to devolve into a system of apples, oranges, pears, watermelons, and lemons.  By doing so, it deprives us of the ability to compare schools in any meaningful respect.  For that reason, the new accountability systems are not simply hard to interpret, they are a complete waste of time.

Rather than devise a convoluted accountability system, Congress should have just fessed up to the fact that it was abandoning the federal role in education.  Instead, it sought to keep up the ruse by requiring states to waste a lot of time and effort on these new systems.

For my full analysis of how the Every Student Succeeds Act abandons the federal role in education and what else is likely to come, see here.

DeVos Says the Real Problem in Education Is the Federal Government

The structure the Every Student Succeeds Act creates for supporting, monitoring, and improving public schools is, in the collective, incoherent.  The Every Student Succeeds Act is the popular title of the most recent reauthorization of the Elementary and Secondary Education Act.  The Every Student Succeeds Act, however, stands apart from its predecessors.  All prior versions have been premised on improving educational opportunities for disadvantaged students by promoting equality in inputs, equality in outputs, or both.  The Every Student Succeeds Act proceeds as though we can improve educational opportunities for disadvantaged students without equality in inputs or outputs.  This would be quite a novel, if not incoherent, thesis.

In a lecture last week, I remarked that the more forgiving thesis I might ascribe to the Act is that if the federal government would get out of the way of states states would devise their own new theories by which to achieve equality or would simply achieve input and/or output equality of their own volition.  Yesterday, Betsy DeVos confirmed my speculation was correct. At the annual legislative conference of the Council of the Great City Schools, a coalition of 68 big-city school system, DeVos remarked “When Washington gets out of your way, you should be able to unleash new and creative thinking to set children up for success.”

I knew it.  Washington is the problem and the Every Student Succeeds Act has cured it.  States did not really need the couple hundred billion dollars that the federal government gave to states during the recession to keep their education budgets from falling off a cliff and teachers being wholesale dismissed.  It was really the federal government that made states cut education by 20 or so percent once they exhausted federal stimulus funds.  It was really the federal government that forced some states to slash taxes rather than fund education. It was really the federal government that has insisted that over half of the states continue to fund education at levels below the pre-recession years, even though their tax revenues exceed pre-recession levels.  It was really the federal government that insisted that states spend more money in schools that do not serve low-income students than in those that do.  

If only President Obama had appointed Betsy Devos eight years ago, we could have avoided this mess.

Or maybe the flawed logic of the Every Student Succeeds Act and Betsy DeVos are just window dressing for the fact that many no longer believe equality is possible or a virtue worth pursuing.  This is an idea that would likely cause many educators and families to revolt, just as they did in opposition to DeVos, which is why the window dressing is necessary.

For more on the federal role in education and the Every Student Succeeds Act, see here.

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.

 

It’s a Terrible Time to Be Secretary of Education, Especially If You Don’t Understand the Job

Even if Betsy DeVos understood her job, she could not have taken over the Department of Education at a worse time.  The busiest and most complex process that any Secretary of Education will likely see over the next several years is beginning.  States are set to submit their brand new implementation plans for the Every Student Succeeds Act.  They have been operating under No Child Left Behind plans since 2002 and are now transitioning to entirely new schemes.

These plans include lots of moving parts and policy choices within a much larger regulatory structure.  The people who understand those parts just exited the Department of Education building.  New staffers are coming into the building and, as evidenced by the confirmation hearing, their boss does not understand the basic rules that have been in place for decades, much less the new ones.

To make things worse, DeVos just added to the confusion.  On February 10, DeVos sent a letter to states telling them that the timeline for submitting their implementation plans remains in place, but everything else is up in the air.  In November, the Department enacted final regulations outlining what should be in those plans, but DeVos indicates states should not worry about complying with those regulations.  She points to a letter from White House staff and the possibility that Congress might disapprove the regulations.  In such case, "these regulations 'shall have no force or effect.'"  In other words, turn your state plans in on time, but forget the rules. 

This letter creates a host of problems, none of which have anything to do with partisan politics.  White House staff cannot repeal or stay regulations once they become final--certainly not with a memo.  Final regulations can be repealed through the legislative process, but only if the House, Senate, and President act together.  While the House has voted to repeal the regulations, the vote was largely symbolic.  During the Obama administration, the House passed several similar resolutions regarding non-education regulations, but the Senate never acted.  Senator Lamar Alexander has made rumblings about repealing these regulations, but one has to think they are largely rumblings.  Congress recessed last week having taken no action.  Quite simply, the Senate has much bigger fish to fry right now: agency confirmations, a Supreme Court Justice, and repealing the Affordable Healthcare Act.  The last time Congress debated the ACA it led to nearly a decade-long delay in the reauthorization of the Elementary and Secondary Education Act.  In short, my money is on the regulations remaining in effect for some time.

Regardless, repealing the regulations in whole will create a huge vacuum, leaving states with no detailed guidance regarding an entirely new process.  Surgically removing some of the regulations is equally problematic because it requires that someone actually understand the regulatory substance and structure.  Consider, for instance, just one issue like the difference between student proficiency and student growth.  Who is Congress going to ask about regulations that go much deeper than proficiency versus growth?  Besty DeVos? 

If any of the regulations are repealed, the Department will presumably want to replace them.  That takes time--often lots of time.  The Department must go through the notice, comment, and finalization process.  The regulatory vacuum will persist while this drags out.

Even if time were not an issue, new regulations require a sense of where the Every Student Succeeds Act should go.  Betsy DeVos standard line is to let states decide.  But states do not want to decide everything.  They need some sense of the parameters. More important, so does Congress.  While the Every Student Succeeds Act gives states a lot of discretion, Congress did not just pass a 400 page bill so that states would be left with no rules or regulations at all.  Congress could have done that in a page.

The current regulations are the law whether the Secretary likes it or not.  Secretaries may defer enforcement of certain matters on a case by case basis, but Secretaries lack the authority to skip the entire administrative process through letters that repeal or disregard entire regulatory structures.

These problems make the lower level political appointments at the Department more important than ever.  Someone who understands education and administration needs to steer the ship. If someone does not figure this out soon, the Every Student Succeeds Act will be dead on arrival.

As a way of limiting the Secretary’s power, the Act includes a provision that automatically approves state plans if the Secretary does not reject them within 120 days of receiving them.  So if Department’s leadership does not figure out the Act quickly, any state plan that comes through the door will be approved.  If a state wants to rate schools on how often they clean their windows, and punish those who clean too infrequently with mandatory ice cream breaks on Fridays, those plans will set the course for education reform.

Edushyster Says DeVos Was Playing the Long Game in Michigan

Edushyster (Jennifer Berkshire) has a new story on DeVos in Michigan.  The story opens with this:

By the measures that are supposed to matter, Betsy DeVos’ experiment in disrupting public education in Michigan has been a colossal failure. In its 2016 report on the state of the state’s schools, Education Trust Midwest painted a picture of an education system in freefall. *Michigan is witnessing systematic decline across the K-12 spectrum…White, black, brown, higher-income, low-income—it doesn’t matter who they are or where they live.* But as I heard repeatedly during the week I recently spent crisscrossing the state, speaking with dozens of Michiganders, including state and local officials, the radical experiment that’s playing out here has little to do with education, and even less to do with kids. The real goal of the DeVos family is to crush the state’s teachers unions as a means of undermining the Democratic party, weakening Michigan’s democratic structures along the way. And on this front, our likely next Secretary of Education has enjoyed measurable, even dazzling success.

Get the full story here.

Betsy DeVos May Be in the Top One Percent in One Category, But She Is in the Bottom Half in Another and That Makes Her a Hard Sell

When I first read the exchange between Betsy Devos and two senators on the Individuals with Disabilities in Education Act (IDEA), I was speechless.  As a professor, this is a relatively rare occurrence.  Once I came to my senses, a few potentially poignant ideas came to me, but before I share them, I will give you an opportunity at speechlessness.  Here is the exchange:

Sen. Tim Kaine (D-Va.) asked DeVos if all schools that receive federal funding should meet the requirements of IDEA.

DeVos: “I think they already are.”

Kaine: “But I’m asking you a should question. Whether they are or not, we’ll get into that later.” He then repeated his question.

DeVos said: “I think that is a matter that is best left to the states.”

Kaine responded: “So some states might be good to kids with disabilities and other states might not be so good and, what then, people can just move around the country if they don’t like how kids are being treated?”

Devos repeated: “I think that’s an issue that’s best left to the states.”

Kaine said: “What about the federal requirement? It’s a federal law, the Individuals With Disabilities Education Act.”  He repeated his initial question again.

DeVos then offered an anecdote about a Florida voucher program for students with disabilities.

Kaine interrupted her: “Just yes or no. I think all schools that receive federal funding — public, public charter, private — should be required to meet the conditions” of IDEA. He asked if she agreed.

DeVos: “I think that is certainly worth discussion.”

Kaine: “So you cannot yet agree with me.”

[Later]

Sen. Maggie Hassan (D-N.H.) explained that the IDEA is a federal civil rights law that must be followed. She asked DeVos if she stood by her statement that it was up to the states to follow it.

DeVos: “Federal law must be followed where federal dollars are in play.”

Hassan: “So were you unaware when I just asked you bout the IDEA that it was a federal law?”

Devos: “I may have confused it.”

My guess is that if you are reading this post, you already knew what the IDEA is and, if so, that makes you more qualified to serve as Secretary of Education than Betsy DeVos.  You may also know the following, but I offer it for the good of the order.  Students with disabilities typically make up roughly 10 or 11 percent of the public school population.  In some schools, it dips to around 8 percent.  In others, it is around 14 percent.  It is the second largest chunk of funding that the federal government spends on public education.  Title I funds, directed at low-income students, are the biggest chunk at around $14 billion.  IDEA funds are a close second at $12.5 billion.  Nothing else comes close.  

The Office for Civil Right at the Department of Education is charged with investigating discrimination complaints in education.  It protects against race, gender, disability, language status, and age.  Of all the complaints it receives, 39% are in regard to disability.

How any Senator could deem a person qualified who is not sure of, misunderstands, or thinks that the most (or second most) important law she will be charged with enforcing is voluntary is . . . .  Well, I just cannot find the word to finish that sentence.  Is it shocking, astonishing, unbelievable, or maybe just the new world order where basic knowledge and facts do not matter.

Then a snarky light went off.  Betsy DeVos may be part of the top one percent in terms of wealth and that may qualify her to do a lot of things.  It may have offered her a lot of skills. But on education, she may very well be in the bottom half in terms of knowledge.  Owning charter schools is a lot different than knowing something about education.  I own several stocks and I know very little about any of them.  I own a couple of cars--one for a decade and I still cannot manage to get the driver's seat to return to its original position as I am told it is supposed to when I get in.  Nor can I sync my garage door opener to my car.  And I have read the owner's manual on these topics a couple of times.  And I am generally a pretty hand person.

But, of course, no one is nominating you to be Secretary of Education and no one is asking me to fix their car or offer stock advice, so those are not really accurate points of comparison.  If we compared DeVos to those who actually follow public education, either closely or casually, I would venture to say she is, at best, in the bottom 25% in terms of knowledge.  Now, let's get serious.  Is this someone any Senator should confirm as the Secretary of Education?

Assessing the Effectiveness of Obama's Education Policies

Secretary of Education John King is set to give his final reflections on the work that the U.S. Department of Education has accomplished over the past eight years.  The Atlantic reports that he will release a 14 page exit memo titled "Giving Every Student a Fair Shot: Progress Under the Obama Administration’s Education Agenda.”  I would expect that it is largely a summary of the 60 page document the White House released back in May under the exact same title.  Get that report here.

The most notable accomplishments it will tout are Race to the Top, changes to the teaching profession, expansion of pre-kindergarten education, the Every Student Succeeds Act, and civil rights enforcement.  With the new administration that lies ahead,  many on both sides of the aisle will soon enough long for the one that just left and, thus, I hesitate to be critical. Nonetheless, I cannot count many of this administrations accomplishments as positives.  

An overarching theme of this administration is what I would call the econometrics and corporatization of education. I use econometrics to refer to the notion that we could precisely measure student growth and teacher effectiveness.  These notions became the basis for using extremely complicated mathematical analysis to compare one teacher to another, one school to another, and to take action against them when officials did not think the results were good enough.  

Intuitively, the approach made perfect sense--far more than No Child Left Behind's nonsensical assumption that it could force schools to make 100 percent of students proficient by 2014.  The problem is that the Obama administration's policies rested on the same fundamental flaw as No Child Left Behind.  They both assumed that standardized tests are an accurate measure of learning.  In many ways, the Obama administration made things worse because it upped the ante.  Not only would it rely on the test results, it would attempt to draw far more information and conclusions from them.  As I detail here, this approach is inherently unfair in a number of ways and produces random and unreliable results. What the Department should have done is the opposite.  Keep the tests but use them only for what they are good for: rough global measures of a slice of student learning that can serve as a trigger for further inquiry into a school (and maybe a teacher).  

Corporatization is somewhat of a rough characterization, but I use it as a proxy for the notion that schools can run like businesses and on the whole operate like markets. This notion led the Department to demand that states lift caps on the number of charter schools and resulted in an enormous expansion.  Charter school enrollments roughly doubled during the Obama administration.  While it is true that there are scores of very high performing and beat-the-odds charter schools across this nation, they are the exception, not the norm.  There is no evidence to show that a school, simply by virtue of being a charter, is likely to perform any better than a traditional public school.  Rather, the evidence shows quite the contrary.  

And even putting achievement results aside, the profit motives, potential corruption, lack of transparency, and lack of legal protection are, in fact, inherent risk in charters as currently structured.  Thus, these past several years saw a sharp spike in these problems.  What charter schools require and neither the federal nor state governments have been willing to impose are serious oversight and standards that align them with the core values of public education.  As I detail here, without that oversight and alignment, they can undermine public education itself.

Finally, the Department is quite proud of the fact that it got rid of No Child Left Behind.  I concede that is an accomplishment.  The problem is that the Department overreached so much through Race to the Top and the waivers of No Child Left Behind, that the final legislation that replaced No Child Left Behind was more about eliminating the federal role in education than it was improving it.  In that respect, the Every Student Succeeds Act is a major step backward for the students who need federal leadership the most.  That is no accomplishment at all. For a full explanation, see here.

Those critiques, however, do not mean that the Department was without success.  To be absolutely clear and reiterate what I wrote a few weeks ago, the Office for Civil Rights in the Department of Education has done an outstanding job, particularly in the past four years.  For the first time in a very long time, the Office for Civil Rights once again became an institution that families believed would take their claims of discrimination seriously.  The Office once again became an institution that would insist that districts comply with anti-discrimination law, regardless of the politics that surrounded doing so.  Thus, it is no surprise that the cases filed with the Department grew, so much so that the Department requested additional resources to do the work that the law demanded of it.

As we turn to the next administration, signals indicate that we will miss the Office for Civil Rights more than most appreciate now.  Whether we will miss the general Department of Education's substantive policies remains to be seen, but things can certainly get a lot worse.

The Key to Blocking the New Administration's Education Policies Moving Forward

Two big challenges will face advocates in dealing with the Department of Education in the coming years: 1) insisting that it enforces civil rights law and 2) stopping it from excesses of power.  Advocates will have relatively few tools in their bag to force the Department to do its civil rights job, but they will have clear statutory language and powerful precedent on its side to stop the Department from going beyond its job.  On this second point, one need look back no further than the recent controversies surrounding the No Child Left Behind Act (NCLB).

In the process of writing Federalizing Education by Waiver?, I spent a good deal of time worrying about whether I was being fair in my assessment that Secretary Duncan had exceeded his power in imposing various conditions on the statutory waivers he began granted under NCLB.  To be honest, when he initially rolled the waiver process out in 2012, I paid almost no attention.  The process was bureaucratic, something had to be done to avoid the sanctions that NCLB would have required, and almost anything seemed better than the decade of high stakes testing our schools had endured.  I saw little need to crack open the statute and seriously consider the matter.

Common Core, as a matter of substance, did not pique my interest either.  Lesson plans and what is actually taught in K-12 curriculum goes beyond my expertise.  I found the new teacher evaluation systems curious primarily because they relied so heavily on the standardized tests everyone had railed against for years, but the systems were so complex that, again, I did not dig deeper.  It was really only the growing power of the Secretary between 2012 and 2014 and the sense that he might just do anything he wanted in elementary and secondary education that finally gave me pause.  And it was because I was generally neutral as to the substance of his policies that I reassured myself that my conclusions were sound and I was not simply crying foul because I disliked his policies.

My conclusions in Federalizing Education by Waiver? and proscriptions for the future seem all the more valid and important now.  The point of the article was to take executive power seriously, even when your friends are the ones exercising it, because some day some one other than your friends may exercise it.  And the best way to maintain credibility in calling out those with whom you disagree is to call out your friends for the same thing.  So while the NCLB waiver process and the legal issues it raised seemed to fade into nothing last year when Congress replaced NCLB with the Every Student Succeeds Act, I am glad I wrote the article (and later testified against the department).  And the importance of statutory text and the limits it places on executive power remain crucially important to those who may disagree with the privatization model that Trump administration intends to pursue.

As I wrote yesterday, it is not clear that Betsy DeVos really knows what her job is and what its limits will entail.  Should she secure the job, I hope that her general counsel will read the Every Student Succeeds Act carefully and advise her as to what it makes abundantly clear: the Secretary now has very limited power and will serve more as a figure head and paper pusher than anything else.  If she attempts more than this, Republicans should challenge her use of executive power as forcefully as they did that of the prior administration.  Surely, Democrats will be right beside them.  

This time around, I clearly disagree with the substance of the policies the administration is proposing.  But if DeVos, or any one else, seeks to impose or cajole them through the Every Student Succeeds Act, I will oppose them because they are beyond the Department's power.

 

Betsy DeVos Won't Be Doing Too Much As Secretary of Education, But It Is Not Clear She Knows That

It is not clear whether Betsy DeVos really knows what her job will be as Secretary of Education or if she is just blowing smoke like the person who nominated her.  She is telling news sources that she will put the brakes on the Common Core.  “It’s time to make education great again in this country. . . . This means letting states set their own high standards and finally putting an end to the federalized Common Core. . . . The answer isn’t bigger government — it’s local control, it’s listening to parents, and it’s giving more choices.”

The truth is that Congress has already gutted the Common Core and shifted enormous control back to states and districts.  The Every Student Succeeds Act bars the Department of Education from requiring or even suggesting that a state use the Common Core.  The Act is so anti-Common Core and anti-federal standards that I could imagine DeVos and her staffers getting in trouble if they even brought the subject up.  The Act prohibits the Department from engaging states on their academic standards altogether, allowing states to submit a self-attested letter to the Department that their standards are challenging. The point is to prevent the Secretary from monkeying with academic standards in any respect.

The limits on the Secretary and the Department, however, go much deeper than this.  As I write in the introduction to Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (forthcoming),

On December 10, 2015, the [Elementary and Secondary Education Act (ESEA)] lost its historic way. Congress reauthorized the [ESEA] under the popularly titled bill the Every Student Succeeds Act (ESSA). To the delight of most, the ESSA eliminated the punitive testing and accountability measures previously dictated by the No Child Left Behind Act (NCLB). But in the fervor to end NCLB, few stopped to seriously consider the wisdom of what would replace it. The new Act, ESSA, moves education in a direction that would have been unthinkable just a few short years ago: no definite equity provisions, no demands for specific student achievement, and no enforcement mechanism to prompt states to consistently pursue equity or achievement themselves.

The ESSA reverses the federal role in education and returns nearly full discretion to states. Although state discretion in some contexts ensures an appropriate balance of state and federal power, state discretion on issues of educational equality for disadvantaged students has proven particularly corrosive in the past. Most prominently, states and local districts vigorously resisted school integration for two decades, and sometimes longer, following Brown v. Board of Education. In fact, it was this resistance that made passing the Elementary and Secondary Education Act necessary in 1965. State resistance to equality, however, is not limited to desegregation, nor a remnant of the past. Over the last decade, states have made large cuts to education funding and refused to reinstate funding even as their economies improved. The effects of these cuts have often hit low-income and minority school districts hardest. This regression marks a troubling new era in which states are willing to flaunt their state constitutional duties to deliver adequate and equal educational opportunities.

Although the ability for states to adapt solutions to local needs is important, complete discretion also opens the door to ignoring the Education Act’s historical mission of equal opportunity and supplemental resources for low-income students. The ESSA’s framework will, in effect, reduce equal educational opportunity to a random occurrence rather than a legal guarantee. First, the ESSA grants states near unfettered discretion in creating school performance systems and setting goals. States are free to assign almost any weight they see fit to test results, as well as consider any number of other soft variables to counterbalance the weight of tests. With this discretion, as many as fifty disparate state systems could follow. Second, even assuming states adopt reasonable performance systems, the ESSA does not specify the remedies or interventions that states must implement when districts and schools underperform. Third, the ESSA undermines several principles that have long stood at the center of the Act’s mission to ensure equal and adequate access to resources. In particular, the ESSA weakens two major equity standards and leaves a major loophole in a third one that, in effect, exempts 80 percent of school expenditures from equity analysis. To make matters worse, Congress left federal funding flat and afforded states more discretion in spending existing funds.

In other words, what DeVos and Trump claim they want to do in education has already been done.  And because the Secretary is so weakened under the Every Student Succeeds Act, all the other stuff they want to do is beyond their power.  Moreover, there with be no waiver process this time around that allows the Secretary to impose new conditions or policy items on states.  Congress made sure of that when it revised the Act.  So if DeVos and Trump want to push more charters and vouchers, they are going to have to get Congress to pay for it through new legislation.  That means selling an idea that works, not exercising the existing power of the Department.

Get my full analysis of the Act here.

How the Every Student Succeeds Act Abandons Equity

My forthcoming article Abandoning the Federal Role in Education: The Every Student Succeeds Act, California Law Review (2017), is available on ssrn. I offer this summary in the abstract:

Congress recently passed the Every Student Succeeds Act (ESSA), redefining the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government now lacks the ability to prompt improvements in student achievement or to demand equal resources for low-income students. Thus, the ESSA rests on a bold premise: states will abandon their historical tendencies by voluntarily providing low-income students with equal educational opportunities.

Although the ESSA remains committed to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Wide state discretion opens the door to fifty disparate state systems, none of which guarantee equality. Second, the ESSA directly weakens two existing equity standards and leaves untouched a loophole that exempts eighty percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education at all.

Although Congress is unlikely to repeal the ESSA just months after passing it, it is set to expire by its own terms after four years. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: 1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; and 2) meet the outstanding needs of low-income students.

 

Special Issue on 50th Anniversary of the Elementary and Secondary Education Act

 

University of Georgia College of Education Professor Elizabeth DeBary and University of Southern Mississippi College of Education and Psychology Assistant Professor Ann E. Blankenship have published Volume 3 of the Education Law & Policy Review, serving as Guest-Co-Editors-in-Chief for this special double issue.  The Education Law & Policy Review is a publication of the Education Law Consortium (ELC) in cooperation with the Education Law Association (ELA), the premier international education law professional association founded in 1954.   It is a peer-reviewed law and policy journal providing scholarly reviews and commentary on national and international issues in education law and policy in K-12 and Higher Education, publishing leading law and policy research and analysis for use by scholars, policymakers, judges, lawyers, and educators. 

This special double-issue of the journal is dedicated to the 50^th Anniversary of the Elementary and Secondary Education Act of 1965 and the passage of the Every Student Succeeds Act in 2015.  As scholars with backgrounds in policy and law, DeBray and Blankenship challenged both the education policy and law fields to generate fresh proposals for the ESEA reauthorization − to make recommendations for legislative changes that were grounded in research that could lead to improved educational practice. Preeminent scholars in education law and policy responded with thoughtful responses to the dramatic changes in ESSA and provocative ideas for improving education through incentivizing equity, strengthening mandates, and building capacity.  All of these are viable strategies for attempting to leverage improved educational outcomes for students. 

The issue is available electronically here and in print through Amazon.  This issue features scholarship by Gary Orfield (UCLA and The Civil Rights Project), Jack Jennings (founder and former CEO of the Center on Education Policy), Megan Hopkins (University of Illinois-Chicago), Christine Malsbary (Vassar College), P. Zitali Morales (University of Illinois-Chicago), Emily Hodge (Montclair State University), Erica Frankenberg (Pennsylvania State University), Christopher Suarez (Williams & Connolly, LLP), Tina Trujillo (UC Berkley), Kara Finnigan (University of Rochester), Jennifer Jellison Holme (University of Texas at Austin), Nicholas Triplett et al. (University of North Carolina, Charlotte), and Benjamin Superfine (University of Illinois-Chicago).

The Every Student Succeeds Act, Equity of Opportunity, and Addressing Barriers to Learning

The National Center for Mental Health in Schools in the Department of Psychology at UCLA has released its new report analyzing the Every Student Succeeds Act (ESSA) and how it does or does not address the barriers to learning and re-engaging disconnected students.  It offers this summary:

The Every Student Succeeds Act (ESSA) recognizes that significant numbers of students require supports to successfully meet challenging state academic standards. This brief (1) analyzes the act to assess how it addresses the nature and scope of supports to address barriers to learning and re-engage disconnected students and (2) presents frameworks and prototypes for improving how schools provide student and learning supports.

The analysis finds the legislation clearly underscores that student and learning supports permeate efforts to enable every student to succeed. At the same time, the act muddies the nature and scope of such supports by scattering references to them throughout the various Titles, Parts, Subparts, and Sections. That is, by addressing barriers to learning in a piecemeal and mostly indirect manner, ESSA conveys a fragmented picture and a lack of coherence with respect to essential supports.

The shift to more local control is discussed as an opportunity for state and local stakeholders to escape the limitations of the federal act and move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success. As aids for systemic change, the brief highlights frameworks and prototypes for developing a unified and comprehensive system for addressing barriers to learning and teaching – with an emphasis on enhancing equity of opportunity for success at school and beyond. *This report is from the national Center for Mental Health in Schools

Its conclusions include:

• The legislation clearly underscores that barriers to learning need to be addressed so that many more students will be able to meet challenging state academic standards.

• At the same time, the act addresses such barriers in a piecemeal and mostly indirect manner.

• As a result, ESSA conveys a fragmented picture and a lack of coherence with respect to essential student and learning supports.

• Student and learning supports need to be unified and developed into comprehensive system if they are to significantly enhance equity of opportunity as an essential component in enabling every student to succeed.

• If states and LEAs are to move away from existing fragmented and marginalized approaches for dealing with factors interfering with student success, they will need to use the transition to local control as a time to plan beyond the limitations of federal formulations.

It then proposes that policymakers begin "thinking out of the box" to produce "transformative system change. From this perspective, the report also highlights frameworks and prototypes that can be used as planning aids and guides in developing a unified, comprehensive, equitable, and systemic approach for addressing barriers to learning and re-engaging disconnected students."

 

Louisiana to Drop Lawsuit Against U.S. Department of Education over Common Core, But Major Issues Remain over Secretarial Authority

Last week, Louisiana Governor John Bel Edwards indicated that he intends to end the state's legal challenges against the U.S. Department of Education regarding Common Core education standards.  Former Governor Bobby Jindal had brought the original suit in 2014, arguing that the Department had unconstitutionally coerced states to adopt Common Core standards and tests through the Race to the Top Program.  He later included the conditions the Department imposed on states to receive a No Child Left Behind waiver in his claims. This past fall, the federal district court rejected those claims, reasoning that there was no evidence to indicate that Louisiana had been coerced to adopt Common Core standards or tests.  In full disclosure, I was a witness for the state in that case.

The immediate stakes of that litigation dropped precipitously when Congress reauthorized the Elementary and Secondary Education Act a little over a month ago in the form of the Every Student Succeeds Act. The practical result was to void the NCLB waivers.  The Act also specifically prohibited the Secretary from imposing similar requirements on states in the future.  As to curriculum and academic standards, states no longer even have to submit them to the Department and the Department cannot deny state applications based on the content of their standards.  In numerous different provisions, the Act severely restricts the Secretary from doing much of anything that is not specifically enumerated by the statute.  In other words, the new Act gives Louisiana much of what it had sought through the litigation.  Given this reality, Governor Edwards indicated it was better to spend the money on education than litigation.

Continue reading

ED Warns States That Excessive Opt-Outs Could Threaten Federal Funding

As Derek reported earlier this month, the Every Student Succeeds Act addressed the growing movement for parents to opt out of standardized testing for their children, some because they believe the tests are being used improperly and others because of perceived poor design. Today, the Washington Post's Answer Sheet reports on the Education Department's recent letter warning states that if more than 5% of their students opt-out of state-chosen accountability testing, a portion of those states' Title I grant funding could be withheld. The Post article is here.

The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline

My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education.  The Act also included some other important changes and additions that do not fit into those categories.  These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time).  In other words, they are pet projects that helped the bill get passed.  These changes include for charter schools, data, test validity, test opt outs, and school discipline

Charter Schools

The act includes new competitive priorities for charter school grants.  For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan.  As a practical matter, it makes it far more likely that they will receive a grant.  It also makes it highly unlikely that states and districts that do not include those policies will receive a grant.  In short, they are implicit mandates for those who want money.

So what are these special charter school policies?  They are exactly what charter advocates have been lobbying states to do, often with little success.  The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.

Magnet Schools

Nothing really changed for magnet schools, and that is the point.  Magnet school financial support and policy has been stuck in neutral for nearly two decades.  By comparison, this means magnet schools are moving backward while charters rush forward.  There is, however, one potentially explicit retrogressive addition for magnets.  The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration.  Socio-economic integration is, of course, immensely important.  The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.

Important Data

The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers.  This will be a boon to researchers attempting to drill deeper into problems of resource inequity.

Valid Tests (Potential Bombshell)

A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid.  To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests.  As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes.  Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well.  Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes.  The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.

Test Opt-Outs

The Act gives parents the right to opt their children out of standardized tests.  Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states.  The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.

Discipline: Bullying and Suspensions

Finally, the Act gives a big boost to progressive discipline policy.  Previously, there was no such thing as general federal authority in regard to discipline.  The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI).  The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior.  The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts.  To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.

The Every Student Succeeds Act: Eliminating Accountability, Handcuffing the Department of Education, and a Few Good But Optional Ideas

After having finally digested the new version of the Elementary and Secondary Education Act—the Every Student Succeeds Act—my overall appraisal is that the Act represents two steps back and half a step forward.  The steps backward are in regard to federal leadership, high expectations, and accountability.  The half steps forward are on various points that civil rights and other advocates have pressed for a decade or more.  But they are only half-steps because these civil rights “advances” are optional rather than mandatory.  Thus, they are more accurately “ideas” for states to consider, not actual advances students can expect to see.  Nonetheless, being ever the optimist, the very act of raising the ideas has the potential to prove important a decade for now when the Elementary and Secondary Education Act is again due for reauthorization.  It was, after all, the soft version of testing in the 1994 reauthorization (Improving America’s School Act) that paved the way for the 2002 reauthorization’s (No Child Left Behind Act) aggressive testing and accountability systems.

The easiest way to digest the new Act is to think specifically about what has changed and what has stayed the same.   A number of major things did remain the same:

• The federal financial stake in education remained relatively flat. The new bill included a $500 million bump for Title I, but in the larger scheme, the increase is minor.  In 2002, NCLB included a major initial boost for Title I, which is what made the Act happen.  That no significant new funding is in the current Act may be a sign of how little progressive actions it contemplates.
• The funding formulas through which Congress allocates Title I funds to states remained in place. Senator Burr had managed to get an amendment to the formulas into the final Senate bill, but it did not make it through reconciliation with the House.  More on this later.
• The major aspects of the federal testing regime remain in place. States must test students in the same subjects (math, English Language Arts, and science) per the same schedule and frequency as was found in NCLB.  States and districts must also stick to the same reporting and demographic disaggregation as before.
• The highest level articulation of the academic standards that students must meet remains the same: “challenging.” This was somewhat of a surprise given how maligned this phrase had been for its inability to ensure states adopted rigorous standards.  As discussed later, the bill indirectly addresses this issue in a new subsection that pegs “challenging” to career and college readiness.

The Act changed far more than it left the same.  Major changes were made to the substance and mechanisms for Accountability, the regulation of teachers, funding, and the Secretary and Department’s powers. 

Academic Accountability

As to the substance and mechanisms for accountability, the shift is from federal command and control to nearly complete state autonomy:

• The metrics for whether states are offering quality education and ensuring sufficient student progress are now within the control of states. While the bill pegs “challenging” academic standards and assessment to college and career readiness, states do not have to actually submit the standards to the Department.  They need only give the Department assurances that their standards are challenging.  And as discussed later, the Secretary is extremely limited in objections he can raise to states’ education plans.
• In terms of assessing student progress on standards, states must still consider test results, but states can afford as little weight to test results as they want and they can include almost any other metrics of academic progress and educational quality as they want (student engagement, teacher engagement, attendance, etc).
• NCLB required that all students be proficient by 2014-15. That standard is go and is now replaced with anything, which is to say states can set their own progress goals.
• NCLB also mandated particular interventions when schools failed to make adequate yearly progress toward full proficiency. By 2012, this meant that eighty percent of the nation’s schools were facing some sort of sanction.  Under the new bill, sanctions are few and far between.  Only those schools performing in the bottom 5% of the metrics that the state chooses will be subject to intervention and the particular interventions will be within the discretion of the state.  Equally notable is the fact that the portability of Title I funds for students attending a bottom 5% school did not make the bill.  In fact, the mandatory option of transfer (with or without funds) which was in NCLB is not in the current law.

Teachers

Changes for teachers are simple because there is almost no regulation of teachers at all in the law.

• The requirement that all teachers of core subjects be high quality is gone.
• Now states need only ensure that teachers are certified, but this includes alternative certification, which I read as meaning that if the state is willing to give some a piece of paper to teach, the person is certified. This, of course, has been a huge problem with recent teacher shortages.
• During the waiver process, Secretary Duncan had mandated “effective” teaching, which was largely measure by a teacher’s students’ test scores. No such requirements exist in the new law.

Funding and Fairness

The most interesting developments in the law may be in regard to school funding.  While funding itself remained flat and the formulas went unchanged, the law included a tremendous amout of flexibility in how states spend federal dollars.  It also included a lot of progressive ideas about funding, although the adoption of the best of these ideas is entirely discretionary.  The bureaucratic and technical changes in funding include:

• The law consolidates a lot of federal funds, issues more in the form of block grants, and lets states determine exactly how much they will devote to particular programs, activities, and schools.
• The option to be treated as a “whole school,” meaning that Title I funds can be spent on activities that benefit the whole school not just low-income students, became a lot easier. Any school with 40% or more low income students can be a “whole school,” but even those falling below that threshold can apply for a waiver under a relatively lenient standard.
• The federal requirements that states maintain their financial effort from the prior year and that federal dollars supplement, not supplant, local dollars have long been criticized as ineffective. The new law changes both standards, looking at a 2 year period on maintenance of effort rather than a 1 year period, and requiring states to affirmatively establish they have not supplanted local funds.  Whether either of these will be effective is unclear.  The language reads more specific than prior versions, but is still permissive in its general approach.

The eye-popping changes (for me) in funding include:

• A requirement that states assess and address resource inequity in those bottom 5% schools it identifies. This also includes the ability to use school improvement grants (which is now a bigger pot of money) to address those resource inequities.  Ideologically this is huge line for the federal government to cross and provides a potential stepping stone for later expansions. Unfortunately, it only applies to intra-district resources and only to a small fraction of schools.  In other words, it leaves untouched the much bigger issues that get litigated in school finance cases.  Nonetheless, it does address an important loophole on comparability of resources that I have long criticized.  See here.
• The law also includes a pilot program to support districts that want to adopt weighted student funding. This would help districts account for the varying costs of different demographic student groups and their needs.  Again, this is what school finance litigation demands.  The problem, however, is also the same: it applies only intra-district and to a small group of districts.  Even more problematic, the program relies on voluntary applications by districts.
• The law responded to a decade of criticisms of the irrationality of the Title I funding formulas. See my criticisms here.  It does not mandate a change to the formulas, but if funds a professional evidence-based study of the formulas to determine who they advantage and disadvantage.  The study will propose changes to the formula if necessary. Whether those proposals are adopted are anyone’s guess.  Normally I would guess no, but much to my surprise, Senator Burr did manage to get a change to the formulas approved in the Senate bill (although it did not make the reconciliation bill).  Plus, the formulas are so irrational that they do not favor red or blue states, which makes change at least plausible.
• The law maintained President Obama’s commitment of $250 million for pre-k. Our schools, of course, need far more than that, but it is important that this was not cut out of the bill.
• Finally, the bill included a teacher pay-for-performance grant. I had thought this issue was going away, but maybe keeping it was part of the deal struck for doing away with teacher evaluation systems.

Secretarial Powers

Finally, the Secretary of Education was reduced to a line worker.  I argued here that Secretary Duncan lacked the statutory authority to impose the various conditions he attached to NCLB waivers and that to give a Secretary the ability to impose those sort of open-ended policy objectives would have been unconstitutional.  Someone must have agreed with me because no such powers exist in the current law.  The problem, however, is that this law overreacts to NCLB waivers, making this as much about Arne Duncan as it is about the proper role of the Secretary.  To say the Secretary should not act beyond his or her statutory and constitutional power is not to say the Secretary should have no power at all.  Yet, that is what this law does.  Under the law now:

• The statutory bases upon which the Secretary can reject a state plan are very narrow.
• If the Secretary plans to reject a state plan, the Secretary must specifically articulate the statutory basis and justify it.
• After this, the state will get an opportunity to respond and resubmit. If the Secretary rejects the plan a second time, the state is entitled to a hearing.
• In some instances, if the Secretary does not specifically reject a state plan within the required time frame, the law will treat the Secretary as having accepted the plan.
• The Secretary cannot review or request changes to state’s academic standards. In other words, the whole common core standards/curriculum mess that came from the NCLB waiver is prohibited.
• The Secretary cannot place conditions on state applications or consider criteria in making decisions that are not within the scope of the conditions and considerations of the Act itself. As I argued here, this was the fatal flaw in the NCLB waivers that render the conditions Duncan imposed beyond his statutory authority.
• Nor can the Secretary attempt to indirectly achieve any of the forgoing prohibited objectives through policy guidance.

In short, the law sets up a system in which the presumption is that the states will get exactly what they want they want in their state plans and grants.  If somehow the Secretary manages to find a way to say now, a state will get multiple additional bites at the apple.

Size of the Department of Education

In conjunction with implementing the new provisions, the law directs the Secretary to specifically look at the work done and not done, needed and not needed, report on those findings, and reduce the size of the Department accordingly.  A smart Secretary can likely work around this, but this is clearly an attempt by Congress to shrink not just the power but the size of the Department, which presumably would further shrink its power.

Random Developments

Finally, the law includes lots of interesting and important additions that I would term as random rather than structural.  Those changes address charter schools, data, parents, and school discipline.  I will, however, leave those issues for later in the week.

Congress Again Fails to Tackle Equity in Revised Federal Education Law by David Sciarra and Molly Hunter

On December 9, 2016, Congress passed a bill reauthorizing the Elementary and Secondary Education Act (ESEA), and President Obama signed it today. The new "Every Student Succeeds Act" (ESSA) retreats somewhat from excessive high-stakes testing, and eases up on sanctions and labels for schools, teachers and students. Overall, the law moves away from narrow federal mandates on testing and accountability, leaving states to their historic and central role in educating our nation's public school children.

But once again, Congress has failed to confront the central problems that plague most of our 50 separate state school systems.

The new law, like the "No Child Left Behind" Act (NCLB) it replaces, gives the States free reign to continue the vast and debilitating inequities and disparities in their school systems. For our nation's most vulnerable children, ESSA is "same as it ever was."

Most states are shortchanging schools the funding and programs needed to give all children the chance to succeed, especially the growing numbers of children in poverty in districts and states across the country. Millions of children in our state systems attend schools deprived of the teachers, support staff and other resources essential to learning. Only a handful of states have made the effort to overhaul their finance systems to deliver those resources to schools and students most in need.

Congress could have required the states move away from funding schools based on dollars and politics to providing students and schools the resources necessary to achieve academically. Congress could have required states to build capacity to deliver high quality supports to,font help high risk schools and districts to improve. And Congress could have taken bold action to press states to dramatically expand access to high quality early education to give at-risk youngsters the opportunity for school readiness. Congress received these recommendations from the federal Equity Commission in 2013 but chose to ignore them.

Parents and advocates deserve credit for pushing Congress to retreat from NCLB's extreme test and punish provisions. But with the states now firmly in the education driver's seat, parents and advocates must turn their attention to their statehouses. Parents and advocates must now build strong campaigns for education equity in every state, demanding governors and legislators provide fair funding, support high poverty schools, and offer high quality preschool to every vulnerable three- and four-year old.

ESSA, like its NCLB predecessor, will do little to help every student succeed. But every student matters. It's time to let the state lawmakers responsible for our public schools know.

David G. Sciarra is the Executive Director of Education Law Center (ELC). Molly A. Hunter is Director of Education Justice at ELC.

Seven Years in the Waiting: A Bill to Reauthorize the Elementary and Secondary Education Act

Well, I suppose that the day on which we are technically waiting is the day the President affixes his signature to a reauthorization of the Elementary and Secondary Education Act, but we have not even seen legislative language that had a chance of getting to the President's desk since No Child Left Behind was first passed in 2001.  The Act has needed reauthorization since the beginning of the Obama administration.  Were it not for a fights over health care and then a change in Congress, we would have gotten a reauthorization bill six or so years ago.  After that, reauthorization became a pipe dream.  Insiders had written off reauthorization until the next administration.  But somehow, against all odds, the Senate's efforts to pass a reauthorization bill turned into the little train that could.  Notwithstanding a House of Representatives at war with itself, the resignation of the Speaker of the House, and the resignation of the Secretary of Education, an unlikely bipartisan group in the Senate has trudged along to find a middle ground.  The Senate and House reconciliation committee has now released what is a near final bill that will be introduced in both houses in about a week and should pass relatively easily.

None of this is to say the reauthorization bill is a good one.  At first glance, it is a setback to a productive federal role in education. It may have made it this far for no reason other than the passage of time has lowered expectations so far that many would accept almost any bill that presses the reset button on NCLB and Secretary Duncan's waivers.  Regardless, the long awaited bill is finally here.  The full bill and a cheat sheet on what it does is available here.