Education Week - April 27, 2016 - 16

GOVERNMENT & POLITICS

ESSA Panel Hammers Out New Regulations on Testing
Rules on spending
fall short of accord
By Alyson Klein
Washington

It took eight days, spread over
two months, hours of negotiations
and countless proposals, but school
districts and states finally are getting some certainty about how testing will work under the new Every
Student Succeeds Act, thanks to an
agreement by a panel of educators,
advocates, and officials from the
U.S. Department of Education.
But the panel was unable to
reach accord on regulations covering a sticky spending issue called
"supplement-not-supplant," which
essentially deals with how federal
funds are supposed to be used relative to local and state spending.
That means the Education Department will write its own rules on this
issue.
And it's possible that whatever
the department comes up with on
the spending issue will be challenged in court, or halted through
new legislation. U.S. Sen. Lamar
Alexander, R-Tenn., an architect of
ESSA, recently told U.S. Secretary
of Education John B. King Jr., that
his department's proposal on the
topic amounts to an attempt to rewrite the law.
The agreed-to regulations on testing that came out of the process
known as "negotiated rulemaking"
have yet to become final. The Education Department will still need to

publish them in the Federal Register
and get comments. There still could
be minor tweaks.
The toughest part of the assessment negotiation was on tests for
students with severe cognitive disabilities. Under ESSA, states are
only supposed to give those tests to
1 percent of their students overall, or
about 10 percent of students in special education. Individual districts,
however, can exceed that cap. And
states can get a waiver from the department if they need to go over the
1 percent cap.

State to Set Definitions
After hours of back and forth, the
negotiators eventually rejected an
attempt to have a common definition of what exactly the law means
by "severe cognitive disabilities."
Instead they agreed to require
states to define the term on their
own.
But the regulations set strong
parameters for those definitions, at
the behest of civil rights advocates
on the panel. For instance, states
can't identify a student as having
a severe cognitive disability just
because that student doesn't do
well in school, or only because that
student is an English-language
learner.
And states have to take into account both students' adaptive behavior (how they handle being in
school) and their cognitive abilities
(their academic potential) in writing their definitions.
There was also much back-andforth on what conditions states

must meet to get waivers from
the 1 percent cap. Ultimately, the
committee embraced much of the
Education Department's proposed
language.
Under the agreement, states will
have to explain how they eventually plan to comply with the cap.
And they'll have to show that they
are testing 95 percent of their students-both overall and among students in special education-in order
to get a waiver from the 1 percent
requirement.
Some on the panel, especially
Lynn Goss, a paraprofessional representing the National Education
Association, weren't fans of that
provision because it would make
getting a waiver harder on states
with high-opt out rates. But all negotiators ultimately decided they
could live with it.
"I can't believe we got there," said
Ron Hager of the National Disability Rights Network, who was representing the disability community on
the panel. Hager likes the parameters states must consider in coming up with their definitions, even
though he wishes that the panel
could have set "an enforceable definition" for every state.
So does Tony Evers, the state superintendent of Wisconsin. He had
previously said the requirements
to get a waiver from the 1 percent
testing mandate were even more
onerous than the requirements to
get a waiver from NCLB.
But he was satisfied with the
compromise. States were never
going to get full flexibility from the
1 percent cap, he said. After all, "It's

in the law," he said.
Negotiators also agreed on a definition of a nationally recognized
test that would allow tests used
for college placement or entrance
to count, without specifying which
tests are in the mix. (Education
department officials said that SAT,
ACT, and the common-core-aligned
PARCC and Smarter Balanced
are contenders, however.) And the
compromise made it clear that
states are responsible for providing special education students and
English-language learners with the
accommodations they need for any
test taken during the school day for
accountability purposes, including
the ACT or SAT.
The Education Department will
still need to publish these regulations in the Federal Register and
get comments before they are truly
final.

Supplement-not-Supplant
On the spending issue, the department's proposed regulations
would have required districts to
look at the actual local and state
dollars going to schools that get
federal Title I money for disadvantaged students versus those that
don't get Title I dollars.
That means they would have had
to take teachers' salaries into account, as opposed to just making

sure all teachers are on the same
salary schedule, as districts do now.
Evers said such language would
call for districts to take money
from one school and give it to another, could lead to forced teacher
transfers, and would generally be a
nightmare for state departments of
education to regulate.
"We'll have to monitor the salaries of every teacher in Wisconsin,"
he said. "I'm not trying to be an obstructionist here. The bottom line is
that if you don't meet greater than
or equal to average cost, then you're
out of compliance."

'Disrupting Inequity'
Liz King, of the Leadership Conference on Civil and Human Rights,
said, "it's important to flag that
the disruption we're talking about
would be disrupting inequity. ...
There is an inequitable system, and
in order to get from inequity to equity there will be disruption."
With the panel's failure to reach
agreement, the ball is now in the
Education Department's court.
The discussion has informed the
department's view of supplementnot-supplant, said Dorie Nolt, a
spokeswoman. "The department
will continue to take their input
into account as we move forward
with the regulatory process," she
said.

ONLINE EXTRA: For more on new testing regulations under the Every
Student Succeeds Act, see a detailed explainer on the Politics K-12 blog.
www.edweek.org/go/cheatsheet

High Court Weighs
Deportation Dispute
By Mark Walsh
The U.S. Supreme Court appears divided over President
Barack Obama's program offering work permits and relief
from deportation to some 4 million unauthorized immigrant parents of children who are U.S. citizens.
The question of whether Texas and 25 other states have
legal "standing" to challenge the Deferred Action for Parents of Americans program dominated the 90 minutes of
intense arguments in United States v. Texas (Case No 15674) April 18.
The DAPA program and an expansion of an earlier program aimed at young people hold an array of implications
for the nation's schools, parents, and students.
Although the arguments did not get into some of the
particulars of school-related issues raised in some of the
briefs, the human dimension of the immigration debate
did not go unmentioned.
"There is a pressing humanitarian concern in avoiding
the breakup of families that contain U.S. citizen children,"
said U.S. Solicitor General Donald B. Verrilli Jr. in defending the administration's program.
Justice Sonia Sotomayor said that some 11 million
total unauthorized immigrants are "here in the shadPAGE 19 >

16 | EDUCATION WEEK | April 27, 2016 | www.edweek.org

Pablo Martinez Monsivais/AP

Washington

Supporters of an Obama administration program seeking to give protection from deportation to unauthorized immigrants whose
children are U.S. citizens demonstrate outside the U.S. Supreme Court, which heard oral arguments in a challenge to the program.

http://www.edweek.org/go/cheatsheet http://www.edweek.org

Education Week - April 27, 2016

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