Last week, the Department of Education’s (ED) Every Student Succeeds Act (ESSA) negotiated rulemaking committee met for three days to discuss new regulations for the K–12 law. Educators, administrators, civil rights advocates, school leaders, business community representatives, and other experts met in a 24-member panel to discuss the law’s “supplement-not-supplant” and assessment provisions.
So what exactly is negotiated rulemaking? What did committee members discuss during these meetings? And what are the next steps for ESSA’s regulations and implementation?
Negotiated Rulemaking
EdWeek summarizes, “Federal laws sometimes require agencies to use an up-close-and-in-person process to write regulations, called negotiated rulemaking.” For ESSA, federal officials from ED selected a committee of representatives from all aspects of K–12 education to hash out effective and practical regulations to support states, districts, and schools as they prepare for full ESSA implementation by SY2017–2018. ED will use the negotiated rulemaking process “in three areas of the law: supplement-not-supplant requirements, assessment, and standards.” However, the department is holding off on academic standards for now, and other issues—like accountability—will go through the typical rulemaking process. That is, ED will draft regulations, request public comments on them, and then issue a final rule.
Supplement-Not-Supplant
ESSA’s supplement-not-supplant language deals with how federal education dollars are supposed to be spent relative to state and local education dollars. The provision mandates that federal dollars for low-income students must “supplement, not supplant,” state and local school funding, and has been required under the Elementary and Secondary Education Act (ESEA) since 1970. The provision was intended to discourage states and districts from gutting their own education budgets to use federal money “earmarked for low-income students to make up the difference.”
Under ESSA, districts are no longer required to “itemize the cost of various programs funded by Title I” dollars for low-income students. SEAs/LEAs no longer have to show “exactly how the services and programs Title I money was funding were truly supplemental services.” Additionally, districts can now use a “single method to show that a Title I school is receiving the same state and local funding it would have if no Title I dollars were available,” as opposed to different schools being subject to different tests. ED is also prohibited from mandating how districts ensure the continuity of state and local dollars separate from Title I funds (but districts must use their new method for demonstrating compliance starting in December 2017). In other words, districts are free from “previous checks to prove their compliance” and instead must show their own methodology for state and local fund allocation.
ED asked negotiators to read this background paper on Title I funding to guide their supplement-not-supplant discussion, especially regarding shortfalls in state and local funding and Title I funding equity for large, small, affluent, and poor school districts. ED asked negotiators to read these session materials too, and consider a variety of questions, including:
- How can districts show their methodology for allocating state/local funds to satisfy supplement not supplant?
- How flexible should regulations accommodate districts with unusual characteristics (e.g., districts with very small schools)?
- How will districts that use school-based budgeting or weighted student-funding systems be affected by the new methodology requirement?
During the discussions, the committee emphasized maintaining flexibility for school districts, questioned whether parameters should be established for the new methodology rule, and cautioned “withholding funds from districts as punishment if they’re out of compliance because it hurts only students.” (More info here). EdWeek said while the discussions produced a lot of “high-level ideas about funding inequities and testing,” there’s still little idea about what the new ESSA regulations will look like.
Assessments
Assessment discussions dealt with how to provide clarity on ESSA language regarding student testing, the types of tests that should be used, and additional testing requirements for specific student subgroups. A variety of items were discussed, including:
- Innovative assessment pilot programs under ESSA.
- What constitutes a “nationally recognized test” for high school assessments?
- Negotiators raised concerns about the SAT/ACT being used as state tests for accountability and whether they are able to “adequately measure student subgroups” and accommodate English language learners (ELLs) and special needs students. Others viewed the provisions as a good response to outcries against standardized testing.
- What are appropriate accommodations to provide special needs students and ELLs for assessments?
- Computer-adaptive testing.
- 8th grade math assessments for advanced math courses.
- ESSA allows 8th grade students in advanced math courses to avoid taking “a grade-level math test in addition to” the advanced course test. Negotiators discussed whether this language should be strengthened or would amount to too much federal overreach.
- Assessments for “students with the most significant cognitive disabilities” and alternative assessment caps.
- Negotiators discussed whether more clarity was needed to define this student group so parents know whether their child falls under this category. Some argued there was no need to regulate this now, as states have been operating without a definition for years. Too much regulatory language could make the issues “unnecessarily complex for states” to enforce. Others worried additional clarification would contradict the Individuals with Disabilities Education Act (IDEA).
- Negotiators discussed instances in which states should be allowed to test more than 1% of students via alternate assessments. Some
members suggested states could provide an explanation of the need for a waiver from the requirement.
- Assessments for ELLs and English-proficiency provisions under ESSA.
- ESSA requires states to identify languages other than English that are present to a “significant extent” among students, and make "every effort" to develop assessments to accommodate those languages. Negotiators had to consider how to define "significant extent” and how states can demonstrate compliance. Tribal school leaders on the committee advocated for offering assessments in the native language of their students. (More info here.)
What should we expect from ED’s next ESSA committee meeting? POLITICO says that federal officials are now “off to write draft regulatory language for the committee to discuss” when ED and its negotiators reconvene April 6–8. POLITICO expects several follow-up discussions about meeting the needs of ELLs and tribal school students for assessments and the educational services that schools offer these groups. Two additional issues to watch are how (and whether) the rulemaking committee should determine and clarify language in ESSA pertaining to “students with the most significant cognitive disabilities” and “children in foster care.”
If the ESSA negotiated rulemaking committee fails to agree on supplement-not-supplant and assessment regulations, ED will “go through the usual process for writing ESSA rules in these two areas.” However, there is still potential for a third meeting after April if it looks like some progress has been made. Members can agree on one or both issues as a whole, but whatever they cannot reach a consensus on will be up to ED. Only if consensus on either issue can’t be reached would ED be able to draft regulatory language on supplement-not-supplant and assessments “as it sees fit.”
Will members be able to reach consensus? If negotiated rulemaking under No Child Left Behind is any indicator, EdWeek argues there may be an agreement, but we will have to wait and see until after April’s meeting.