Friday, March 10, 2017

ESSA Big Mess

ESSA is caught in the middle of a very bad movie right now. It's the sequel to "How A Bill Becomes A Law," and it has no heroes.

After the bill becomes a law, the work still isn't done. Because to build a bi-partisan agreement, you write the law with statements like "Treatment of mugwumps will be fair." (Perhaps not that vague, but as always, allow me to exaggerate to make a point). So Republicans and Democrats sign the bill, each satisfied that "fair" means what they want it to mean.

"ESSA big mess. Weesa in trouble," says new USED undersecretary.

So now it's a law, but nobody knows what it means exactly. Here on the local level, outside of DC, where live human beings go on about their lives, what does it mean that mugwumps will be treated fairly? When they come to eat at the mugwump diner, should local officials be providing them with a bowl of tomato soup or a cheese sandwich?

In order to actually implement the law, we need some rules. And to get those, we turn to the United States Department of Mugwumpery. USDM develops the actual rules that states have to follow, which adds another layer of shenanigans because as a limb on the executive branch, the USDM has its own ideas about "fair" that it would like to implement.

That, in fact, is the story so far with the Every Student Succeeds Act. In an unprecedented show of bipartisanship, the Senate Education Committee managed to leave out everything there was hard disagreement on and write sufficiently vague or contradictory language for everything else (the law, for instance, recognizes parents' right to opt out of testing, but requires states to have 95% test participation). Since Congress was almost a decade behind in passing a new education law, this was quite an achievement, and it triggered a warm glow of bipartisan comradery.

That lasted about five minutes, or roughly the time it took Arne Duncan to announce that the Education Department lawyers were smart enough to circumvent the new law to do what the administration wanted to get done. This triggered a big fight last April between John King and Lamar Alexander that involved really sexy stuff like supplant vs. supplement and Title I regulations and while everyone probably should have been paying attention, mostly their eyes just glazed over as bureaucrats hammered away at each other.

The USED worked hard through the fall and winter trying to fill in all the regulatory blanks in what may be one of the greatest displays of bureaucratic futility since the Romans tried to sew new uniform's for Nero's fire department. I'm honestly not sure what they were thinking-- "If we adopt these new regulations and just kind of put them under the desk blotter, maybe the Trump administration won't notice they're there"?

This was a ridiculous hope-- Lamar Alexander had been noticing, loudly, every piece of department regulation, most especially the ones about accountability.

The accountability rules were the ones that would determine how states would decide schools were failing and what the states would do about it. The rules for this under Duncan-King were exactly the kind of micro-managing that annoyed pretty much everyone, and the regulations that King passed through in the waning hours of 2016 could best be described as "pretty much the same thing." Repeated and pervasive standardized common corey testing, specific prescriptions for "fixing" those "failing" schools, grading schools a la Florida A-F. King was basically that kid in class who, when Mrs. Congress looked him in the eye and said, "I don't want to hear another peep out of you," waited five minutes and started saying "Meep."

Which brings us to the present. Lamar Alexander pointed forcefully at the rules hidden under the desk blotter and said, "Get that junk out of here." This week featured an assortment of testimonials both in favor of and opposed to the regulations. Conservative voices strongly favored the end of those regulations, finding them too restrictive and not allowing for states to opt out of the whole business. Well, some conservative voices-- other conservative voices said, "Let's keep at least some of them." Other voices said, "Hey, the history of States Rights when it comes to education is not exactly a history fraught with great success." And a smattering of voices said, "Good God-- when Congress changes the rules every six months, it makes it really hard to run actual school systems."

As I said at the top, there are no heroes to root for in this movie. The Obama regulations were far over and above the actual law and simply attempted to extend the same failed, unsupportable policies of the past fifteen years; they needed to go away. The regulations we get in their place will most likely provide the freedom for wholesale abuse, fraud, and social injustice in education, or they may be what Congress wants, rather than DeVos herself.. And we still haven't seen the last card to be played, which is the final chapter of a Bill Becoming a Law-- enforcement. Because if there's one thing the Trump administration understands, it's that a rule is only a rule if someone will actually punish you for breaking it.

In the meantime, ESSA sits there, uninterpreted and unclear, a stunning example of how badly top-down rules can go wrong-- if the people at the top can't get their act together and figure out what they want the rules to mean, all you get is top-down confusion and paralysis. States, districts and schools have no way of knowing which sets of bad federal rules we'll have to cope with, but in the meantime we have to keep doing our day to day work. Best of luck to us all.


  1. Questions I now have:

    Can states now use any tests they want for "accountability"?

    Do states have to punish schools for their failing to meet accountability standards? Do they just have to note the failure? Do they even have to publicize the failure? In other words, can states completely defang the testing now?

  2. What will happen to the threat of taking federal money away from districts that do not hit the 95% participation rate on the state assessments?

  3. The angst over Congress ditching the ESSA regs on accountability is overdone. ESSA the law still exists in force and is quite prescriptive, for good or for bad, only now just a little bit less. Every state still has to give exams of their choice annually for each grade 3-8 and once in HS; has to evaluate and rate schools mainly on the results of those exams plus graduation rates in HS; and has to figure out what to do with schools rated in the lowest 5%. The fact that the regs were ditched changes very little. What this has done is give schools a little more flexibility in deciding what to do with schools with high opt out rates, which is a good thing in my view. See EdWeek on this here:
    The Obama administration wanted schools to take the testing participation requirement in the law seriously, so that states, districts, and educators could have data on how English-learners and students in special education were doing relative to their peers. So it used the now-dead-in-the-water regulations to call for states to take pretty dramatic actions for schools that didn't meet the 95 percent threshold. The choices laid out in the regs included lowering the school's overall rating or putting it on a list of schools deemed in need of improvement. The Obama regulations also allowed states to use their judgement, putting in harsher penalties for a school that had a really high opt-out rate vs. one that didn't quite hit the 95 percent participation threshold. Some Republicans, including Alexander, thought this went beyond the bounds of the law.

    Now that the regs are being killed? We go back to ESSA, as it was written originally. Schools still must test 95 of their kids. But their state gets to decide what happens if they don't meet that target.