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

by Charles Barone and Dana Laurens

As the U.S. Department of Education (ED) undertakes its second round of state plan reviews under the “Every Student Succeeds Act” (ESSA), it’s a good time to reflect on mistakes made in Round 1 and pay close attention to whether ED goes even further afield of its responsibilities under the law in Round 2. This is not a technical exercise. ED’s continued failure to enforce ESSA will hurt students, especially those from historically disadvantaged groups whose longstanding inequitable treatment by states and school districts has always been the driving force behind federal education policy.

Last week, Senator Patty Murray and Representative Bobby Scott, Ranking Democrats of the Senate and House Education Committees, sent a letter to Secretary DeVos pointing out that some states’ plans approved in Round 1 were in violation of the ESSA statute:

While the Department’s feedback correctly noted many statutory violations that resulted in some necessary revisions to state plans, we believe the Department missed other statutory violations in its feedback and, thus, states did not address these violations in their revised plans. We are concerned that inconsistent feedback and a lack of enforcement of the law’s equity-focused provisions will hinder states’ ability to identify and address persistent achievement gaps, harming our nation’s most vulnerable students.

Scott and Murray are absolutely right. After a cacophonous debate around ED’s first round of feedback to states, where the loudest voices accused ED of overreaching, ED lurched in the other direction. Instead of enforcing things that were not in the law, as they were accused of doing, ED ultimately failed to enforce key provisions that Congress carefully wrote into the ESSA statute. In the end, the undisputed winners of ESSA Round 1 were those who did not get what they wanted via the legislative process and successfully browbeat ED into cherry picking the law by enforcing the parts they liked and not enforcing others.

To assist our readers in monitoring Round 2 ESSA plan reviews, we’ve compiled a list of verbatim, “bright-line” provisions from the ESSA statute, 31 in total. All these requirements appear in the “State Plans” section of the bill (Section 1111) over the course of only about 7 pages (for that reason, we did not complicate our document with citations that are pretty hard to track for those less experienced reading statutory language). These are not provisions that are nuanced or require regulations for clarification. They either involve a numerical specification in the statute or involve terms that don’t leave much open to interpretation.

One key theme throughout many of these provisions is that standards and assessments must be the same, statewide, for all students. The words “all,” “same,” and “statewide,” as applied to standards, assessments, schools, and students appear, consistently, multiple times across what is really the heart of the entire 400 page law. As words go, “all,” “same,” and “statewide” are about as precise as it gets.

Because the statute is so clear on these requirements, it is both striking and baffling that ED approved state plans that so blatantly violate them. For example, ED approved Arizona’s “menu” approach to the School Quality/Student Success indicator, weighted at 10% for ratings of elementary and middle schools and 20% for high schools. This means that different schools will be rated according to different indices from a long list of possible options, a clear violation of the statute. This is bad policy and even worse precedent.

In effect, each school’s rating, presented by the state to policymakers and parents as comparable across schools, will be based on different things. When it comes to school improvement efforts, this could be particularly problematic. Inevitably, those districts with poor student achievement will gravitate toward menu options that mask those results and improve their ratings. In Arizona, and in other states that go down this road, resources that are now allocated based on accountability systems geared to a single and comparable set of statewide indicators that apply to all students will be misdirected away from schools that need them most and that escape scrutiny under the guise of indicators that cover up student achievement, academic growth, graduation rates, and college and career readiness. In years ahead, what we could wind up with is yet another race to the bottom.

Related content: The Untold Story of Statewide Student Assessments in Nebraska.

Meeting the statutory provisions of ESSA does not guarantee that a state has a great plan but because they were hard fought and consensus-driven, they do reflect the minimum foundation necessary to ensure that the law serves its intended beneficiaries. Advocates for educational equity are going to need to up their game to push Secretary DeVos and her team at ED to keep their word on enforcing the law’s protections for the students who most need them, to monitor how implementation unfolds in states and educate stakeholders, and to push for needed changes to state and local policy in the years ahead.

Read our “bright-lines” document here: ESSA Bright-Lines Final