Contours of a Compromise
The ESEA deal borrows some provisions from both a bipartisan Senate measure that was approved overwhelmingly over the summer and a GOP-backed House bill that just barely made it over the finish line in July.
It also includes some protections for the bottom 5 percent of schools in a state—an idea borrowed from No Child Left Behind waivers granted by the U.S. Department of Education. It also calls for states to focus on schools with high dropout rates, and those where poor and minority students, or students in special education and those just learning English, are struggling.
But states would be handed the car keys when it comes to almost everything else.
They would be given broad discretion over how to incorporate tests into their accountability systems, how to intervene in low-performing schools, and how to help schools where subgroups of students are struggling.
Sandy Kress, who as an adviser in President George W. Bush’s administration helped write the NCLB law, got heartburn when he looked at the compromise on accountability in the pending ESEA reauthorization. He’s worried about what it would mean for minority, and low-income students.
“States are being given license to create systems that are significantly not based on student learning. That’s a problem,” he said. “This pretty much eliminates any kind of expectation for closing the achievement gap.”
But some state schools chiefs say there’s no way they are backing off from their efforts to educate all students. After all, they argue, that didn’t happen under the NCLB waivers.
“We have no intention of backing down from our accountability system or watering down accountability,” said Carey Wright, Mississippi state chief.
It’s unclear just how the bill’s accountability language, which was a priority for Democrats in negotiations, would square with other parts of the deal.
One section, for example, would strip the U.S. secretary of education of authority over such matters as testing, school turnarounds, evaluations, and standards. The secretarial smack-down is largely seen as a rebuke to Arne Duncan, who has flexed his executive muscle more than any other U.S. education secretary in history.
That language would likely make it harder for the Education Department to vigorously enforce many of the accountability provisions in the measure and could hamstring regulatory efforts.
And at least one education advocate is predicting lawsuits and regulatory turmoil if the ESEA bill makes it over the finish line.
“Based on what I’ve seen, for the next [education] secretary, interpreting the new law will be like looking at a Rorschach with one eye closed and with both hands tied behind their back,” Charles Barone, the policy director for Democrats for Education Reform, said of preliminary drafts of the legislation.
Barone served as an aide to former Rep. George Miller, D-Calif., who was the top Democrat on the House education committee when No Child Left Behind was written in 2001.
Parts of the deal, which hasn’t been introduced formally into legislation, are open to interpretation. For instance, Democratic and Republican aides claim there may ultimately be varying degrees of discretion for the secretary to determine the weight of tests and other indicators in state accountability systems.
The regulatory process may prove pivotal in settling that and a host of other issues.
In fact, it won’t be a surprise if some of the big winners in this ESEA reauthorization are education lawyers, said Chad Aldeman, an associate partner at the consulting group Bellwether Education Partners, who served in the Education Department under President Barack Obama.
“The fact that there is that question [about the weight states can give to tests] does not suggest that it is strong policy,” Aldeman said. “You wouldn’t want to draft a bill where there is very foggy uncertainty about what that means and be put into immediate legal limbo,” he said. “What can the secretary do and not do? I think that’s where the lawsuits will be.”