finally time for esea reauthorization? recent actions in congress julia martin, esq....

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FINALLY TIME FOR ESEA REAUTHORIZATION?RECENT ACTIONS IN CONGRESS

Julia Martin, [email protected]

Brustein & Manasevit, PLLCFall Forum 2015

mailto:[email protected]


WHAT DO YOU MEAN “FINALLY?”


NO CHILD LEFT BEHIND

Passed in 2001

Last reauthorization of the Elementary and Secondary Education Act (ESEA) of 1965


THEN AND NOW

Then: Bipartisan support for passage “Ninety-nine percent pure”

(Margaret Spellings)

Now: “[T]he worst piece of education legislation

ever passed by Congress” (Diane Ravitch) “[A] slow-motion train wreck” (Arne Duncan)

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WHY THE ERODING SUPPORT?

Not enough money

Too many regulations

Burdensome reporting/administrative requirements

Increased focus on test preparation: “teaching to the test”

Unreasonable goals: 100% proficiency by 2014

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PREVIOUS (FAILED) ATTEMPTS

Chairman Miller’s 2007 draft

Chairman Kline’s piecemeal 2011 reauthorization

Chairman Harkin’s 2011 Draft reauthorization

Attempted 2013 Reauthorization


THE ROAD SO FAR

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STARTING OFF

House passed legislation (H.R. 5, the Student Success Act) on July 8th with vote of 218 – 213

Senate passed legislation (S. 1177, the Every Child Achieves Act) passed Senate July 16th with vote of 81-17

Pause in debate over August recess…and September…and October

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CONTROVERSIAL ISSUES

Title I Portability Included in House bill

Conservatives wants to include Private schools too

Not part of Senate Bill

Consolidation of Programs House bill consolidates most Title IV programs into

larger block grants to States, districts

Senate bill has consolidated funding stream for some, but preserves many Title IV programs


CONTROVERSIAL ISSUES

Accountability – more of a gray area Level of involvement of federal government vs. what is

left to States

How to ensure accountability?

Title I Formula House bill would make very small change to prioritize

rural districts

Senate bill contains trigger (Burr amendment) that would change title I formula to focus more on poverty if appropriations top $17 billion (unlikely)


CONFERENCE


OPTIONS FOR PASSAGE OF A BILL

If the bill has been passed by one chamber goes to other chamber to start process anew

If there are similar bills passed but no will/time to conference legislative “ping pong”

If there are similar bills passed in each house conference Members are appointed to work out differences

Issues can only be considered if they appear in one of the bills (conference committee can’t bring in new, additional issues)

New bill must be passed by both chambers to become law

Once bill is report by conferees, no amendments are permitted


CONFERENCE

Committee staff worked out differences between individual provisions over September/October, agreement announced in mid-November

House appointed conferees on 11/17 Republicans: Kline, Foxx, Messer, Roe, Rokita, Thompson, Guthrie, Russell,

Grothman, Curbello

Democrats: Scott, Susan Davis, Fudge, Polis, Wilson, Bonamici, Clark

Senate appointed conferees morning of 11/18 Republicans: Alexander, Enzi, Burr, Isakson, Paul, Collins, Murkowski,

Hatch, Scott, Kirk, Roberts, Cassidy

Democrats: Murray, Mikulski, Sanders, Casey, Franken, Bennet, Whitehouse, Baldwin, Murphy, Warren

Conference started afternoon of 11/18, concluded less than 24 hours later

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CONFERENCE

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ESEA


MESSAGING FROM COMMITTEE LEADERSHIP

This is a compromise – it’s not what any of them would have designed on their own, but: Need to update now

This is better than current law

Senate Committee Chairman Lamar Alexander: “I'll take 80% of what I want and save the other 20% for another day.“

Conference passed “framework” with a vote of 39-1


WHAT’S IN THE BILL?


THE EVERY STUDENT SUCCEEDS ACT

ECAA+ SSA

= ESSA


THE BASICS

Based on the Senate bill (S. 1177)

Keeps broad outlines/structure of ESEA, i.e.: States set standards

If schools fall below standards, intervention required

Use of standardized testing, subgroups

Hands over more authority to States, but keeps “strong federal guardrails”


WHAT’S THE STANDARD?

No mandate to adopt “college- and career-ready” standards and assessments Instead, use “challenging” State-designed standards

Secretary cannot mandate/incentivize specific standards or assessments

Eliminates Adequate Yearly Progress (AYP) or mandate to achieve specific targets

Progress measured against student test scores Testing in grades 3-8 and once in high school

Disaggregate achievement data by subgroup

Caps alternate assessments at 1% of overall assessments


INTERVENTIONS

State-developed accountability systems School ratings must include academic

indicators (grad rates in high schools), measures of school quality Academic indicators must count “much more” than

other indicators But otherwise ratios largely up to States

Requires 95% participation in tests to be a factor in accountability But explicitly waivable


INTERVENTIONS

Must design and carry out interventions in:

Lowest-performing 5% of schools

Schools with largest achievement gaps between subgroups (consistently underperforming subgroups for number of years as determined by the State)

High schools with graduation rates lower than 2/3rds

State must reserve 7% of Title I funds (OR FY 2016 reservation + FY 2016 SIG amount) for school improvement activities (subgrants to LEAs), and another 3% for “direct student services”

No requirement for SES, but LEAs may provide choice and transportation (up to 5% of funding)


TITLE I MECHANICS

Rank and Serve LEA may lower 75% poverty threshold

to 50% for high schools Also keeps 35% discretion

New option to estimate poverty for secondary schools

Schoolwide programs Maintains 40% threshold

But school below 40% poverty rate may receive a waiver from the State to operate a schoolwide program


FUNDING

Will use existing Title I formula Amendment in conference will require IES to

study formula and possible alternatives

Title II formula will transition through 2020 to focus more on poverty

Allows up to 50 district-level weighted student funding pilots under Title I

Maintains supplement not supplant and maintenance of effort requirements But tweaks to supplement not supplant


TEACHER QUALITY

Eliminates Highly Qualified Teacher (HQT) requirements But report cards still must include

professional qualifications of teachers

Local plans must address disparities

States have choice of including standardized test scores in evaluations

Title II retains Teacher Incentive Fund, STEM Master Teacher Fund, money for school leader recruitment and support


PROGRAM ELIMINATION/ CONSOLIDATION

What’s out: School Improvement Grants Race to the Top Investing in Innovation Reading First Advanced Placement Physical Education School Counseling Education Technology

*** this is a PARTIAL list***

What’s in: New Local Academic Flexible

Grant Charter schools grant 21st Century Promise Neighborhoods Impact Aid Parent Engagement Preschool Development

Grant Gifted and Talented Title III Migrant Education


CORE WELL-ROUNDED

Changes “core academic subjects” to “a well-rounded education”

Includes courses, activities, and programming in: English, reading or

language arts, writing science, technology,

engineering, mathematics,

computer science, foreign languages, civics and

government, economics,

arts, music history, geography, career and technical

education, health, physical

education, and others as designated

by State/LEA


SECRETARIAL AUTHORITY

Strictly prohibit Secretary from doing anything to: Require/incentivize certain standards or assessments

Deny approval of State plans without good reason

Deny approval of waivers without good reason

Set new criteria through regulation or requiring adoption of certain policies in exchange for flexibility

Specify pieces of accountability system (beyond what’s set out in law)

Issue non-regulatory guidance that

provides a “strictly limited or exhaustive list” to illustrate successful implementation, or

that purports to be legally binding


TIMING

States’ waivers will expire on August 1, 2016 But continue supporting “priority” and “focus” schools

until new law kicks in Most formula programs under new law July 1, 2016

Impact Aid under new law October 1, 2016 Title I

Current assessments may remain in place through August 1, 2016

School ratings and interventions start with school year 2017-18

Competitive programs under new law October 1, 2016


HURDLES


WHAT ARE THE HURDLES AHEAD?


PARTY POLITICS

Limited Democratic opposition

Lack of bipartisan cooperation in drafting?

Concerns about assessments/accountability

Conservative Republican Opposition Bill doesn’t go far enough in opposing common core

Bill doesn’t do enough to pull back on federal role

Lack of Title I Portability (said House bill didn’t go far enough; wanted to use funds in private schools)

Money for early childhood (too many programs already?)


THE HOUSE’S MATH PROBLEM

Bills need 218 of 435 votes to pass in the House

By the numbers: Democrats: 188

Republicans: 246

House Freedom Caucus (HFC) Republicans (estimated): 36

Other Republicans: 210

Need majority of Republicans (the Hastert Rule)

But ultimately passes bill 359-64 (all “no” votes conservative Republicans)


THE SENATE’S CALENDAR PROBLEM

To do before the end of the year: Appropriations (CR

expires December 11th)

Tax extenders bill (December 31st)

Energy bill

Transportation bill

…and ESEA???


WHAT DOES THE FUTURE HOLD?


DISCLAIMER

This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.

finally time for esea reauthorization? recent actions in congress julia martin, esq....

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