Tracking ESSA Implementation: Protect Parents & Students


February 4, 2016

This is the first in a new series from Education Reform Now that will track the implementation of the Every Student Succeeds Act (ESSA),
the recent reauthorization of the Elementary and Secondary Education Act (ESEA).

The U.S. Department of Education (USDOE) took a major step forward today in implementing the Every Student Succeeds Act (ESSA) by publishing a request for nominees to a “negotiated rulemaking committee.” This round of “neg reg” will bring together various stakeholders to hash out regulations related to state assessments and the fiscal issue known as “supplement not supplant.”

(See Politics K-12’s fantastic rundown of what “neg reg” is and the issues that USDOE teed up for this first round.)

It’s important to remember that the Elementary and Secondary Education Act (ESEA) is, and has been since its inception, a civil rights law. As stated in Title I of the new, reauthorized ESEA (i.e. ESSA), the law’s purpose is to:

Provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.

The responsibility and authority for providing rules and guidance that are comprehensive and detailed enough to ensure that states and school districts implement the new law in a way that achieves these goals now rests with USDOE. While the new law provides more flexibility to states and school districts than its predecessor, it nonetheless contains many bright-line provisions on standards, assessments, supplement not supplant, and other issues that the Secretary can and should clarify, define, monitor, and enforce.

Negotiated rulemaking can be an effective process for bringing a wide variety of stakeholders together to share information and reach consensus on issues requiring greater specificity than is provided in the statute itself. First, however, USDOE must ensure the right people are brought to the neg-reg table. USDOE notice in the Federal Register states that the neg-reg committee: “Will include representatives of constituencies that are significantly affected by the topics proposed for negotiations, including:

  • “Federal, State, and local education administrators;
  • “Tribal leadership;
  • “Parents and students, including historically underrepresented students;
  • “Teachers, principals, other school leaders (including charter school leaders);
  • “Paraprofessionals;
  • “Members of State and local boards of education;
  • “The civil rights community, including representatives of students with disabilities, English learners, and other historically underserved students; and,
  • “The business community.” [bullets added for ease of reading].

That’s a great list. But there are still some inherent risks that go beyond simple committee membership. In the past, negotiated rulemaking has sometimes resulted in disproportionate weight being given to powerful special interests that misuse the process to, in effect, alter or subvert statutory provisions. (Stay tuned for more on some of that history in future blog posts).

Thus, beyond the issue of who the neg-reg committee members are, USDOE must:

1) Ensure that the neg reg process results in regulations and guidance that are in line with the purposes of ESSA as described above; and importantly,

2) Proportionately weight the neg reg committee membership of the constituencies named above according to the number of individuals they represent whom the law will affect and is intended to benefit, not according to each of those constituencies’ political clout.

Is that a tall order? Yep. And yet it’s inarguable that students and parents – as well those organizations, such as civil rights groups, that represent their interests – lack the political influence of other, much more powerful, public education stakeholders. This lack of political power is especially acute for those families being shortchanged by the current education system whose sons and daughters are woefully behind their more advantaged peers on every academic measure. These are the students the law is explicitly intended to serve.

USDOE’s overriding challenge, therefore, will be to ensure that the interests of the parents and kids that RFK was talking about are represented, first and foremost, in the rule-making process.  If, for example, and with all due respect, 50 state chiefs – all of whom I have no doubt want what’s best for their students but also, let’s face it, have competing political and professional pressures – have the same representation on a neg-reg committee as:

7.7 million black students; and/or,

13.1 million Hispanic students; and/or,

25 million students from low-income families; and/or,

6.4 million students with disabilities; and/or

4.5 million Enlish Language Learners

then something is out of whack.

The law provides USDOE clear authority to issue regulations and publish guidance on key statutory provisions. In doing so, it must ensure faithful implementation of the law pursuant to its clearly stated underlying purposes. And in order to do that, USDOE must manage and oversee the neg-reg process in a way that empowers those who typically get the short end of the stick when it comes to influence in Washington.