capitol dome

Update on ESEA Reauthorization

Submitted by ATP Legislative Counsel Alan J. Thiemann, Esq.

The U.S. House of Representative narrowly passed the Republican-backed reauthorization of the Elementary and Secondary Education Act (ESEA), the Student Success Act (HR 5) on Wednesday, July 8.  The floor vote was 218 -213, with 27 Republicans bucking the party line and joining with every Democrat, but falling short of blocking the bill.  Indeed, this bill probably will NOT be the measure that President Barack Obama eventually signs into law when all the voting is over. 

The great uncertainty over the House bill exists because on July 16, the Senate passed the Every Child Succeeds Act (S 1177) by a vote of 81-17.  Consequently, ESEA reauthorization now moves to a joint Conference Committee that will be comprised of education committee leaders of both bodies.  Although both bills share some common themes and objectives, there are enough differences that finding common ground in conference to reach a comprise bill may prove difficult, especially inasmuch as the final compromise must be adopted by both chambers and then signed by President Obama.   Moreover, with the upcoming August congressional recess, it is doubtful that conferees will even be named, let alone meet, until after Labor Day.  As a result, whether ESEA is actually reauthorized this year or not remains a serious question.

The House considered14 amendments, including a failed Democratic substitute bill that would have toned down the heavily conservative rewrite of the No Child Left Behind Act (NCLB), offered by the Ranking Democrat on the House Committee, Rep. Bobby Scott (D-VA).  Rep. Mark Walker (R-NC) introduced an amendment that would have allowed states to opt out of federal accountability entirely and send Title I funding to states in the form of block grants “for any educational purpose allowed under state law.” That proposal failed 195-235.  An amendment sponsored by Rep. Will Hurd (R-TX), expressing the sense of the House that students' personally identifiable information is important to protect as applied to current law and this act, passed 242-2.

The amendment with the biggest impact on testing was offered in the Floor House action by Rep. Matt Salmon (R-AZ), which would allow parents to opt their students out of state tests and allow schools not to count those students against participation levels (the required 95% under current law); nineteen Democrats joined with the Republicans to pass this amendment by a vote of 251-178.  However, this amendment was immediately slammed by Democrats in both houses, including this statement by Rep. Jared Polis (D-CO):

"Before No Child Left Behind was passed schools across the country would systemically exclude students from tests into order to inflate their tests scores." This [opt-out] amendment ... would make it easier to once again exclude historically marginalized students from accountability systems."

On the Senate side, the lack of any similar “opt-out” provision is being decried by GOP presidential candidates Senators Ted Cruz (R-TX), Marco Rubio (R-FL), and Rand Paul (R-KY).  Accordingly, this issue promises to become a huge stumbling block during the Conference Committee.  Another potentially controversial issue for the Conference Committee will be the Senate amendment sponsored by Sens. Orrin Hatch (R-UT) and Ed Markey (D-MA), would establish a commission to report to Congress on how to deal with student privacy issues.    

Finally, the Senate bill contains a provision for funding up to five states to conduct an “innovative assessment and accountability demonstration.”    This pilot would cover: “a) competency-based assessments,  interim assessments, cumulative year-end assessments, or performance-based assessments that combine into an annual summative determination for a student, which may be administered through computer-adaptive assessments; and b) assessments that validate when students are ready to demonstrate mastery and allow for differential student support based on individual learning needs.”  There is no comparable provision in the House bill.

Overall, then, both the House and Senate bills would eliminate the NCLB accountability system (“adequate yearly progress”) and allow states to set their own academic standards, forbidding the Department of Education from requiring adoption of the Common Core State Standards (or any alternative federal requirement).  They would also keep the current state testing schedule, but allow each sate to craft its own assessment system and require states to disaggregate student test data.