By Derek Black
January 12, 2016
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 action 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.
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 gone 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.
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 it 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.
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.