U.S. Department of Education Failure to Enforce ESSA – Part 3: Three of ESSA “Big Four” Troubled By State Violations of ESSA Statute


October 17, 2017

On Capitol Hill and in hip-hop culture, as the saying goes, “word is bond.” Even those not inclined to adhere to this on principle do so simply as a means for survival. A reputation for negotiating in good faith and keeping promises are among one’s most valuable assets as a policymaker.

Thus, it would be more than a little surprising if a seasoned pro like Senator Lamar Alexander (R-TN) were to break the deal he made with his Congressional colleagues on key ESSA provisions. It would certainly be at odds with his record of public service in and outside of government. However, since ESSA’s passage in December of 2015, Alexander (who just today reached another huge deal with fellow ESSA co-author Senator Patty Murray (D-WA), this one on changes to the Affordable Care Act) has been to say the least, fickle in his fidelity to the law he co-authored.

This past July, Alexander expressed his disapproval of the U.S. Department of Education (ED) review process by stating “I think we have a case of an assistant secretary who hasn’t read the law carefully.” That assistant secretary, Jason Botel, has since gone underground. This is the same Alexander, however, who seemed to be encouraging states to ignore the law, and encouraging ED not to enforce it, when he told state school board leaders in January that they should “assume that the U.S. Department of Education will say ‘yes’ to your ESSA plans.”

See also:  ED’s Failure to Enforce ESSA Will Hurt Students – Part 1

At the October 3rd Senate HELP Committee ESSA hearing, Alexander seemed completely unconcerned with evaluating ED’s oversight of the ESSA review process against the statute itself. One line of questioning from Alexander had him seemingly trying to echo Maryland Republican Governor Larry Hogan’s (to be fair, justified) unhappiness with his state’s plan. Yet Alexander certainly knows that ESSA made the role of governors in state plans completely optional.

It is important to note that adherence to the law doesn’t seem to be a matter of partisanship. ESSA’s other Republican co-author, former House Education and Workforce Committee Chairman John Kline (R-MN), went public in August with his concerns about state plans that violated key statutory provisions:

During the eight long years our team spent working to pass this bill, no topic was more hotly debated than that of annual testing…In the end, we arrived at a fair and sensible compromise in the law: Keep the requirement that the same academic assessments [be] used to measure the achievement of all public elementary school and secondary school students in the state… [and be flexible in other areas]…However, Arizona and New Hampshire recently passed laws that violate ESSA by permitting individual school districts to choose which assessments to administer, according to an analysis by Dennis M. Cariello, a former top lawyer for the Education Department under President George W. Bush. Such violations undermine ESSA in its entirety [emphases added].

See also: U.S. Department of Education Failure to Enforce ESSA – Part 2: Abandoning Proficiency Benchmarks Takes the “Every” Out of ESSA

Perhaps because she wasn’t party to the deal, Kline’s successor, current House Education and Workforce Committee Chairwoman Virginia Foxx (R-NC) has seemed completely unconcerned and maybe somewhat confused by ED’s failure to maintain important guardrails, leaving it to ESSA co-author House Education and Workforce Ranking Member Bobby Scott (D-VA) and other Committee Democrats to set the record straight at a hearing back in July. We saw a similar scene a few weeks ago at the Senate HELP Committee Hearing. Either every Republican on HELP was as equally unconcerned as Alexander with keeping the deal they made, or completely uninformed about what the law stipulates in the first place. If you had told political pros in the education sector 15 years ago that House and Senate Democrats would be more concerned than their Republican counterparts about ensuring rigor in state accountability systems, you have been laughed out of the room. But, as you can see from the statements below, drawn from the recent Senate ESSA hearing, there’s no denying that that’s exactly where we are.

  • Senator Patty Murray (D-WA): “I fear that the totally inaccurate notion that ESSA is all flexibility and has no role for the federal government has taken over in some places and we need to be clear with the Department of Education that there are indeed federal guardrails in ESSA that have to be met…..Secretary DeVos’ recently commented openly encouraging states to ‘go right up to the line, test how far it takes to get over it.’ Proving she was serious, the Department has approved plans that do not now comply with the guardrails contained in ESSA.”
  • Senator Chris Murphy (D-CT): “The only reason the federal government is really involved in education is for civil rights purposes, because there was a time, and there still are times in which there are a set of local political influences that push funds and resources and time and attention to more affluent districts and away from poorer districts. There are some local traditions that may look innovative, but actually aren’t rooted in what’s good for kids, and so those guardrails are just as important as the innovation. And I share Dr. [David] Steiner’s [executive director of the Johns Hopkins Institute for Education Policy] concerns that some of these state plans while certainly are innovative are often ignoring many of the guardrails that we put into the law.”
  • Senator Maggie Hassan (D-NH): “In my home state of New Hampshire we have focused a great deal on state flexibility and competency-based assessments and we’re proud of that work, but obviously we can’t tip the balance so much towards flexibility and to, I guess, forgo the guardrails.”
  • Senator Elizabeth Warren (D-MA): “Even without the accountability rules that explain some of the details about how to enforce it, the ESSA is not a blank check. The key accountability provisions in the law that many of us fought hard for are still in the law. I hope we can focus on future implementation hearings about how Secretary DeVos is enforcing these provisions to ensure that billions of education dollars are going to the schools and going to the students that need it most.”

View the full Senate HELP Committee ESSA Hearing here: https://www.help.senate.gov/hearings/the-every-student-succeeds-act-unleashing-state-innovation