The Problem with Gutting ESSA Regulations
The Senate comes back from recess this week with a wonky but important education item to consider: whether to join the House of Representatives in striking down Education Department regulations governing state plans and accountability systems under the Every Student Succeeds Act. Proponents argue that parts of these regulations amount to “federal overreach” that violate the spirit of ESSA, which lets states take the lead in crafting policies for their schools.
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States are often the right place for key education decisions to be made, so I’m sympathetic to the idea of looking for ways to streamline federal regulations in a way that fosters more local innovation. But strategic tweaks to regulations are not what’s on the table here. Using a fairly obscure law called the Congressional Review Act (CRA), Congress is proposing to eliminate a core ESSA regulation in its entirety, without offering any ideas for replacing it or any vision for how this would help schools or kids. In fact, the CRA would prohibit any new accountability regulation unless Congress specifically authorizes it. This isn’t Congress telling the Education Department to go back to the drawing board and improve the current regulations; this is Congress decreeing there will be no accountability regulations at all.
Cutting regulations solely for the sake of cutting them is irresponsible policymaking, no matter what you think about the proper role of the federal government in education. And gutting these particular regulations—the product of a long engagement process with states, educators and families who submitted over 21,000 public comments—could hurt millions of students across the country. To understand why, consider the key pieces of ESSA that would be undermined if accountability regulations disappear:
- Accountability for student subgroups: ESSA requires states to track the performance of all groups of students, including African Americans, Latinos, English language learners, and students with disabilities. But it’s the regulations that prohibit states from masking the struggles of individual groups by lumping them into one “super subgroup.”
- Meaningful weighting of accountability measures: ESSA requires states to include specific kinds of measures in their accountability systems. But it’s the regulations that require states to disaggregate each measure and assign each one a meaningful weight, so that a school’s high score in one area can’t hide serious problems in others.
- Summative accountability scores: Here again, while ESSA requires multiple accountability measures, it’s the regulations that require states to roll all those measures into an overall score for every school from a single accountability system. Without summative scores tied to consistent standards, it’s impossible for families (or anyone else) to compare one school’s performance to another.
- Timely school intervention: ESSA requires states to use their accountability systems to identify underperforming schools, but it’s the regulations that require them to create a plan and a reasonable timeline for actually providing support and intervention.
- Submission of state plans: Speaking of plans, it’s worth noting that ESSA says nothing at all about when states need to submit plans to implement their accountability systems. It’s the regulations that set those essential guidelines that make the accountability provisions of the law work.
What would all this mean for students? A world without any ESSA accountability regulations could spell a return to the days when states could paper over a chronic failure to fulfill even their most basic educational obligations. Without any guardrails in place—and an education secretary who’s reluctant to take any federal action to protect students—states could rig accountability measures to give high marks even to poor-performing schools; indefinitely delay intervening in schools they acknowledge are struggling; and mask the academic struggles of low-income or minority students, students with disabilities, and other traditionally underserved groups in an ugly game of three-card monte.
None of these scenarios are hypothetical. States have done all these things and more when left entirely to their own devices on education policy, with terrible consequences for students—especially those who’ve long been subject to systemic bias in our education system and in our society. I’m not suggesting that most states would try to turn back the clock so drastically—strong leaders in many states have helped their schools make progress in recent years—but history suggests some will. Congress never intended ESSA to allow a full retreat on accountability.
Passing the CRA would be like performing delicate surgery with a chainsaw—no more responsible than abruptly taking away somebody’s health insurance without a replacement ready to go, or announcing a timeline to withdraw troops from a war without a plan to secure the peace. The ESSA regulations not only enable the law to function, they set in place important protections and bring greater transparency for families. Furthermore, they extend many important flexibilities for states (small schools in rural areas, for example), all of which are lost if the CRA passes. Striking down these regulations will only serve to create confusion at the state level about what federal law does and doesn’t require, and far less peace of mind for taxpayers about whether their money is funding the policies and programs most likely to help students.
Democrats and Republicans alike should be concerned about what this could mean not only the next four years but under any future administration. A number of states have made important gains over the past 10 years, the result of strong state leadership, bipartisan effort, and a balance of state control and federal regulations that empowered their work.
I realize that the new administration has a particular take on federalism, and that elections have consequences. But deference to states does not mean abdication of all responsibility. There’s a vital role for the Education Department in creating room for bold, locally driven solutions while providing guardrails to protect kids and taxpayers. This partnership between Washington and the states has endured countless shifts in the political winds over a half century, producing slow but steady progress in student achievement. Those who would walk away from it by gutting accountability regulations owe the public a clear explanation of why it’s a good idea for students.
Instead of indulging an ideological crusade to undermine a bipartisan law, the Senate should reject the CRA, let the Secretary do her job, and preserve the clarity around ESSA regulations states need to advance the important work we’re all counting on them to do.
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