This is Part Eight in a nine part series of a conversation between NPE Action President Diane Ravitch and Senator Lamar Alexander’s Chief of Staff, David P. Cleary. You can access the entire series here.
What is the role of the federal Department of Education and the Secretary in the new ESSA?
The role of the department under the new ESSA will be significantly scaled back from the role it has had under NCLB and the waivers. The Department still has a role in ensuring compliance with the law and monitoring state implementation of state plans, but the level of authority the Department has given itself over the past 14 years is significantly scaled back. But, it is important to remember that we are in a period of transition in moving to the new law, meaning the Department will have some authority from the old law and waivers that it can exercise until new state plans are in place.
ESSA makes major changes in four areas: federal conditions on state accountability systems, peer review and secretarial approval of state plans, issuing regulations, and review of waivers.
First, ESSA significantly scaled back the federal footprint in the law by eliminating the original goal of all students being ‘proficient’ by 2013-2014, the Adequate Yearly Progress requirements, and the cascading sanctions that would go into effect of a school failed to meet state goals.
Second, the new law made significant changes to the peer review process and secretarial approval of state plans. Over the past 14 years, there has been too much secrecy about the approval process of state plans, and too much interference by the Department in reviewing and approving state plans. It is the role of the Department to determine whether the state plan meets the letter of the law—not whether the plans are ambitious or aggressive or exciting enough, or if the Secretary likes the state plan.
To take a couple examples: a state must show that it has an accountability system that will measure student achievement in all schools using the same measures and includes test scores, high school graduation rates, English language proficiency, and another indicator of school quality or student success. Academic indicators have to be a majority of the factors deciding school performance—but, other than that, how much those measures weigh, or count, in judging schools is not subject to negotiation with the peer reviewers or the Secretary. For example, if the peer reviewers really think that the state should weigh state tests at 43 percent instead of the state’s plan to weigh them at 38 percent, the peer reviewers can make that observation to the state, but neither they nor the Secretary can reject a plan because they don’t like the specific weights the state picks, so long as the state complies with the rest of the law’s requirements.
States can use whatever type of accountability system they want to identify and differentiate schools. Some will create a system involving A through F ranked schools, while other states will categorize schools as Excelling, Succeeding, Watch List, and 5 Percent schools. Others may go with Platinum, Gold, Silver, Bronze, and Tin. The peer reviewers and Secretary cannot make a state change its system, or enforce a certain type of system.
Most importantly, ESSA made the entire federal review system a lot more transparent. Peer review comments and communications between states and the Department need to be made public, including on the Department’s website. Peer reviewer teams must be comprised of varied individuals that include practitioners and researchers, and states are given an opportunity for a hearing and a chance to revise a plan if the Secretary rejects a state plan for not meeting the law’s requirements. Imagine the showdown between a governor or chief state school officer defending their state plan to the Secretary and his staff. We think that the increased transparency will help states regain the upper hand. The Department’s power over the past 14 years has been both the requirements (and vagueness) of NCLB and the secrecy of peer review process. We’ve changed both in this new law.
Third, as explained elsewhere, ESSA has significantly changed the ability of the Secretary to issue regulations. The new law prohibits the Secretary from dictating or defining terms in a way this is inconsistent with or outside the scope of law, as intended by Congress. The new law also prevents the Secretary from mandating new activities by regulation, and even requires the Secretary to submit certain regulations, including those regarding standards or assessments, to Congress and the public before they become final to give Congress the opportunity to comment and review those regulations.
The best example of what would be prohibited is a requirement that states adopt a teacher evaluation system. Congress explicitly did not include a requirement for states to develop a teacher evaluation system in the law, so the Secretary cannot issue regulations imposing one on the states to get approval of state plans or waivers.
Fourth, ESSA ensures that if a state wants a waiver from the new version of the law, the Secretary cannot add new conditions as part of that review. Again, the teacher evaluation requirement is the best example of something we’ve prohibited. The Secretary is also prohibited from requiring the adoption of certain school turnaround or improvement efforts for any state seeking a waiver. For new waivers, the states can ask for a waiver and the Secretary is required to approve or deny the waiver on the merits of the waiver, not create new requirements that the state has to follow to get the waiver.
Last, it’s important to remember the transition period to the new law. It will take time for states to come up with new accountability systems and state plans. The effective date for accountability systems doesn’t kick in until the 2017-2018 school year to give states time to come up with new plans and transition out of old ones. We created the timeline as such to help prevent disruption for states.