Do ESSA Regulations Reflect ESSA Statute? Short Answer--Yes

Last update: June 26, 2016

Since the 192 pages of ESSA regulations were posted recently for public comment, FairTest, AFT/NEA, and Diane Ravitch have been pretending that the regulations do not uphold and, otherwise, overstep the intent of the 1000+ page federal statute that comprises ESSA.   No doubt all these parties who are complicit in supporting this awful legislation would like to pretend that the awful regulations somehow disguise the good intent of ESSA.  Nothing could be further from the truth.  The regulations are remarkably consistent with what the ESSA demands. 

FairTest is presently posting on numerous groups to urge individuals and organizations to comment on the ESSA regulations.  And if you don’t have time to read the regs, just use their comments. Right?

Well, I took the time to read the Regulations AND the ESSA, upon which the regs are based.  FairTest is simply trying to cover their ass for supporting ESSA’s continued assault on public schools. 

But, hey, what could they do?  After all, the corporate Democrats knew what kind of education policy they would support—the same one that Wall Street supports and that the Republicans support.  FairTest’s analysis is all smoke and mirrors.  See below FairTest recommendations in italics with my responses following.

The DoE must remove or thoroughly revise five draft regulations:

_DoE draft regulation 200.15_ would require states to lower the ranking of any school that does not test 95% of its students or to identify it as needing “targeted support.” No such mandate exists in ESSA. This provision violates statutory language that ESSA does not override “a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments.” This regulation appears designed primarily to undermine resistance to the overuse and misuse of standardized exams.

The federal requirement for 95 percent participation was clearly stated in ESSA multiple times.  Here is just one (p. 36):

‘‘(E) ANNUAL MEASUREMENT OF ACHIEVEMENT .—(i)

Annually measure the achievement of not less than 95

percent of all students, and 95 percent of all students

in each subgroup of students, who are enrolled in public

schools on the assessments described under subsection

(b)(2)(v)(I).

Here is what the ESSA says with regard to opting out: 

At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the local educational agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy regarding student participation in any assessments mandated by section 1111(b)(2) and by the State or local educational agency, which shall include a policy, procedure, or parental right to opt the child out of such assessment, where applicable (p. 56). 

Notice that there is nothing here that "permits" states to do anything other than to report information to parents about existing state law or local policy, and there is nothing here that allows state law or local regulations to overule or take precedent over the federal law, ESSA.

NPE and FairTest are stuck with the policy they supported, which doubles down for another generation on the same loser policies that have decimated public education in the U. S. No amount of wheedling or pretending is going change that, and no amount of appealing is going to change the next Clinton's priorities if elected. 

When ESSA became the law of the land, California and Utah were the only states with opt-out provisions in state statutes.

_Recommendation:_ DoE should simply restate ESSA language allowing the right to opt out as well as its requirements that states test 95% of students in identified grades and factor low participation rates into their accountability systems. Alternatively, DoE could write no regulation at all. In either case, states should decide how to implement this provision.

ESSA contains no such provision to opt out.  This is simply wishful thinking or a crass attempt to pretend that there is an opt out provision in ESSA.

_DoE draft regulation 200.18_ transforms ESSA’s requirement for “meaningful differentiation” among schools into a mandate that states create “at least three distinct levels of school performance” for each indicator. ESSA requires states to identify their lowest performing five percent of schools as well as those in which “subgroups” of students are doing particularly poorly. Neither provision necessitates creation of three or more levels. This proposal serves no educationally useful purpose. Several states have indicated they oppose this provision because it obscures rather than enhances their ability to precisely identify problems and misleads the public. This draft regulation would pressure schools to focus on tests to avoid being placed in a lower level. Performance levels are also another way to attack schools in which large numbers of parents opt out, as discussed above.

This is incorrect, period.  See pp. 22-23 of ESSA, which speaks clearly on the necessity of three levels of achievement for standards:

(A) IN GENERAL.—Each State, in the plan it files under

subsection (a), shall provide an assurance that the State

has adopted challenging academic content standards and

aligned academic achievement standards (referred to in

this Act as ‘challenging State academic standards’), which

achievement standards shall include not less than 3 levels

of achievement, that will be used by the State, its local

educational agencies, and its schools to carry out this part.

A State shall not be required to submit such challenging

State academic standards to the Secretary.

_DoE draft regulation 200.18_ also mandates that states combine multiple indicators into a single “summative” score for each school. As Rep. John Kline, chair of the House Education Committee, pointed out, ESSA includes no such requirement. Summative scores are simplistically reductive and opaque. They encourage the flawed school grading schemes promoted by diehard NCLB defenders.

_Recommendation:_ DoE should drop this draft regulation. It should allow states to decide how to use their indicators to identify schools and whether to report a single score. Even better, the DoE should encourage states to drop their use of levels.

John Kline is misinformed or lying or engaged in political posturing, and so FairTest.  On pp. 25-26 of ESSA, we find that states have two options: a single test or multiple assessments that result in “a single summative score:”

ACADEMIC ASSESSMENTS.—

‘‘(A) IN GENERAL.—Each State plan shall demonstrate

that the State educational agency, in consultation with

local educational agencies, has implemented a set of high quality

student academic assessments in mathematics,

reading or language arts, and science. The State retains

the right to implement such assessments in any other

subject chosen by the State.

‘‘(B) REQUIREMENTS.—The assessments under subparagraph

(A) shall—

. . .

‘‘(viii) at the State’s discretion—

‘‘(I) be administered through a single

summative assessment; or

‘‘(II) be administered through multiple statewide

interim assessments during the course of the

academic year that result in a single summative

score that provides valid, reliable, and transparent

information on student achievement or growth;

_DoE draft regulation 200.18_ further proposes that a state’s academic indicators together carry “much greater” weight than its “school quality” (non-academic) indicators. Members of Congress differ as to the intent of the relevant ESSA passage. Some say it simply means more than 50%, while others claim it implies much more than 50%. The phrase “much greater” is likely to push states to minimize the weight of non-academic factors in order to win plan approval from DOE, especially since the overall tone of the draft regulations emphasizes testing.

_Recommendation: _The regulations should state that the academic indicators must count for more than 50% of the weighting in how a state identifies schools needing support.

No comment.

_DoE draft regulation 200.18_ also exceeds limits ESSA placed on DoE actions regarding state accountability plans.

Too vague for comment.

_DoE draft regulation 200.19_ would require states to use 2016-17 data to select schools for “support and improvement” in 2017-18. This leaves states barely a year for implementation, too little time to overhaul accountability systems. It will have the harmful consequence of encouraging states to keep using a narrow set of test-based indicators and to select only one additional “non-academic” indicator.

_Recommendation:_ The regulations should allow states to use 2017-18 data to identify schools for 2018-19. This change is entirely consistent with ESSA’s language.

On the contrary, the language of ESSA is clear as to when the first bottom 5 percent list of “failing schools” has to be submitted in 2017-2018.  From p. 36:

D) IDENTIFICATION OF SCHOOLS .—Based on the

system of meaningful differentiation described in subparagraph

(C), establish a State-determined methodology to

identify—

‘‘(i) beginning with school year 2017–2018, and

at least once every three school years thereafter, one

statewide category of schools for comprehensive support

and improvement, as described in subsection

(d)(1), which shall include—

‘‘(I) not less than the lowest-performing 5 percent

of all schools receiving funds under this part

in the State;

‘‘(II) all public high schools in the State failing

to graduate one third or more of their students;

and

‘‘(III) public schools in the State described

under subsection (d)(3)(A)(i)(II); and

‘‘(ii) at the discretion of  the State, additional statewide

categories of schools.

Lastly, we are concerned that an additional effect of these unwarranted regulations will be to unhelpfully constrain states that choose to participate in ESSA’s “innovative assessment” program.

ESSA allows up to 7 states to develop these “innovative assessments.”  FairTest would like to pretend that the Feds meant to give states the opportunity to embrace authentic assessments such as portfolios.  Nothing could be further from the truth.  Written as it was by the corporate foundations, ESSA wants any “innovative” assessments (and instruction) to be computer-based and online.  From p. 84:

‘‘(a) INNOVATIVE  ASSESSMENT  SYSTEM  DEFINED .—The term

‘innovative assessment system’ means a system of assessments

that may include—

‘‘(1) competency-based assessments, instructionally

embedded assessments, interim assessments, cumulative year-end

assessments, or performance-based assessments that combine

into an annual summative determination for a student,

which may be administered through computer adaptive assessments;

and

‘‘(2) assessments that validate when students are ready

to demonstrate mastery or proficiency and allow for differentiated

student support based on individual learning needs.