NAICU Washington Update

Congress Rewrites No Child Left Behind

December 18, 2015

On December 10, President Obama signed into law the Every Student Succeeds Act (ESSA), which reauthorizes the Elementary and Secondary Education Act of 1965. It is the first reauthorization of the nation’s major K-12 education law since the controversial 2002 reauthorization, No Child Left Behind (NCLB). With the Higher Education Act (HEA) next in line for reauthorization, the ESSA legislation provides interesting insights into the direction Congress is headed with national education policy.

The new ESSA maintains Title I as the foundational program for low-income/high-need schools, with no formula changes; a strong investment in teacher preparation in Title II; and Impact Aid for military communities. The bill includes a new Early Childhood Education Program, but it is housed at the Department of Health and Human Services (along with Head Start), not in the Department of Education. However, more than 50 programs are eliminated or block-granted for consolidation.

The frustration and partisan division over education policy following years of implementing NCLB under the Bush administration, and regulatory rewrites under Race to the Top in the Obama administration, broke in 2015 when the Senate developed a bipartisan bill to reconfigure the federal effort in K-12 education. The House passed its own bill in 2014, and joined with the Senate education committee to work out a bipartisan agreement over the last few months. In general, the legislation moves away from many of the current federal mandates, towards adding more state and local control over academic standards, assessments, and teacher evaluations. If the Higher Education Act is considered in 2016, the same Members of Congress and staff that negotiated ESSA will be working on HEA.

Specifically, there are five policy areas that could prove instructive for HEA: local control; teacher preparation; accountability systems; prohibitions on the Secretary; and the Family Education Rights Protection Act (FERPA).

Local control. The new ESSA sharply reduces the federal mandates on state education agencies and local school districts.

Teacher Preparation. In a departure from the Obama administration’s NCLB waivers and proposed regulations on teacher preparation, ESSA prohibits federal intervention into state teacher evaluation systems. State teacher evaluation systems are a key area in which K-12 and higher education policy intersect.

However, a major concern for higher education in the ESSA bill is the inclusion of teacher academies as an allowable use of federal funds by states. These academies are intended to be an alternative route to teacher preparation, and while allowed to be offered by an institution of higher education, could be set up outside of academia. The bill language allows states to consider credentials awarded by such entities as the equivalent to a master’s degree for the purposes of educator hiring, retention, compensation, and promotion. The precedent of the federal government giving the state “permission” to award an academic credential that is not part of an institution of higher education is troubling. It will be important for independent colleges to be involved in state decisions on teacher academies, and to monitor their implementation.

Accountability Systems. While testing in grades 3-8 and in high school is still a required part of state accountability, the new law allows states to: 1) determine their own goals; 2) include additional factors beyond student achievement; and 3) determine how to use test data for improvement and education evaluation purposes. The bill also allows states to pass opt-out laws for parents who do not want their children to take the state assessments. ESSA does require states to identify and intervene on the lowest performing schools (defined as the bottom 5 percent, based on a state’s own measures). The Secretary of Education must approve these state systems, but is prohibited from using the approval process to change or mandate curriculum, policies, or evaluation measures.

It is interesting to note that while Congress decided to take away the Secretary’s authority to deal with low-performing schools directly, it continued to focus federal attention on students in low-performing schools. In higher education there is an equivalent federal focus on institutions with low graduation rates, high default or low repayment rates on student loans, or high costs compared to student earnings.

Prohibitions on the Secretary of Education. In addition to the limitation on the Secretary’s authority over states, there are additional restrictions throughout the legislation which are predominately focused on federal overreach into state and local authority. Additional restrictions bar the Secretary from determining or mandating academic standards (such as Common Core); mandating the assessments states must use to measure student achievement; or mandating teacher evaluation systems, whether through legislation, regulation, grant-making, or the state plan approval process.

Family Education Rights Protection Act. Student privacy was discussed during hearings related to ESSA, and talk of adding amendments to FERPA as part of ESSA was given serious consideration. But in the end, a FERPA rewrite became too complex, and will continue to be under congressional consideration next year. However, ESSA does include a Sense of the Congress reaffirming the importance of student privacy.

While HEA is the biggest ticket item for the education committees in the coming year, it’s not the only item. The same staff will also be working on child nutrition, the Older Americans Act, juvenile justice, career and technical education, the Education Sciences Reform Act, and any other education issues that could come up in an election year.