The ESSA and its impact on the IDEA

By Donald Litman, JD, MFS

Education Law Attorney

The Every Student Succeeds Act (ESSA) was signed by President Obama on December 10, 2015, and represents a policy change for our nation’s schools. This bipartisan measure reauthorized the 50-year-old Elementary and Secondary Education Act (ESEA), the nation’s national education law and longstanding commitment to equal opportunity for all students, and it contemporaneously with federal budget compromises eliminated the federal government’s involvement in curriculum oversight. Eight years after the No Child Left Behind Act of 2001 (NCLB) was due for reauthorization, Congress has revamped the law widely described as “broken,” “loathed,” and “much-maligned.” Every Student Succeeds Act (ESSA), now eliminates the Department of Education’s (ED) authority to use conditional waivers.

Although many groups have lauded the Every Student Succeeds Act (ESSA) because it abolishes the “hated No Child Left Behind” (NCLB), ESSA is less a “repeal” than another step in the federal retreat from the classroom and a testament to the continuing education exceptionalism in American politics. Not only does ESSA grant states and districts the power to measure, identify, and remedy academic inequality — the very governments that the original authors of the Elementary and Secondary Education Act (ESEA) distrusted in 1965 — but the bill has brought supporters from both parties, just as NCLB did in 2001.

The original ESEA of 1965 shared its deep suspicion of state and district governments with other civil rights legislation and litigation of that decade. And so, by 1972, ESEA required states and districts spend specific money on specific students through a host of categorical grants. For most federal purposes, districts were in hock to federal compliance officers.

But, by 1994, politicians in both parties worried that federal money had done little to close gaps in educational opportunity, one of the act’s stated purposes. So, the Improving America’s Schools Act, took the federal government a step back. Maybe requiring states to define what students should learn and encouraging them to participate in the National Assessment of Education Progress would spur them to do “what works” in the absence of federal ideas.

By 2001, achievement gaps remained, and NCLB’s theory of action stepped even further away from the classroom. Now, states had to report on academic performance and to certify that teachers were highly qualified. With the exception of the lowest performing schools (where specific remedies were codified), NCLB assumed that public pressure and the threat of lost funding would compel schools to shape up — somehow.

Beginning in 2005, the Bush administration faced increasing pressure to grant states relief from NCLB’s onerous accountability requirements. The Bush administration could have revised the law then if not for the safety valve provided by the General Waiver Authority in Section 9401. In a policy letter issued on November 21, 2005, then-Secretary of Education Margaret Spellings articulated a “commonsense approach” to implementation, offering waivers from key provisions. This approach reversed the US Department of Education’s position that waivers were not an option, and with Spellings invitation states submitted proposals for growth model pilots, which provided states with an opportunity to depart from the accountability system mandated by NCLB.

The Bush administration’s strategic use of wavier authority allowed them to address the discontent that simmered among the states while simultaneously protecting their signature education law. A few months after the initial offer of flexibility, Secretary Spellings issued a reminder to Chief State School Officers that only states demonstrating adherence to the “bright line principles” of NCLB were eligible for flexibility. The administration had an obvious motivation to avoid legislative overhaul of NCLB: the law was a cornerstone of the President Bush’s domestic agenda. Even as the US Department of Education granted states flexibility from the law, in his 2007 State of the Union address President Bush stood by NCLB, calling it a “good law” and warning against “backsliding and calling it reform.”

However, once a new administration came in 2009, it was clear Mr. Obama did not wish to preserve NCLB. His legislative proposal to reform NCLB, the Blueprint for Reform, was essentially dead on arrival – the Blueprint was announced on March 10, 2010, just weeks before the Affordable Care Act infamously passed without a single Republican vote. In this political climate, the Obama administration opted for a waiver strategy in lieu of a public and potentially costly renewal via Congress. Over a year after introducing the Blueprint and making little headway in Congress, on September 23, 2011 the administration announced its Elementary and Secondary Education Act (ESEA) Flexibility waiver program. This strategy echoes the decision made by the Bush administration, although the specific political motivations and mechanisms of their waiver policies differ. The ESEA Flexibility waivers allowed the Obama administration to respond to increasing pressure to change the law but also helped them avoid another legislative battle in the immediate wake of the acrimonious ACA debates.

While ESSA eliminates the Secretary’s authority to attach conditions to waivers, rebuking the current administration’s tactic, the clear consequence of the Bush and Obama administrations’ strategic use of waivers has been a series of piecemeal changes to NCLB that many local school districts have disliked as placing too many strings on to federal funding for education.

The extreme partisan polarization that characterized this era and is to blame for the eight years of delay that preceded the current ESEA renewal. However, the ESSA surrenders the ESEA’s central measurement components to the states and gives up federal pressure on teacher quality. Further, it allows state to use non-academic measures as part of school scores (which are still required). The ESSA gives to states, school districts, and teachers the unsupervised task for deciding what to do about improving student achievement, and takes the federal government out of this oversight after 50 years trying to move the needle on educational opportunity with allegedly little to show for it.

Under Section 1111 of the ESSA there is explicit provisions for alternative test measures for students with significant cognitive disabilities under the IDEA in English and Math only. The ESSA re-writes the testing requirements, and especially any cap on the percentage of students that are given an alternate assessment. Under ESSA, the broad provisions for these alternate test measures simply state they are to be aligned with the challenging State academic content standards, promote access to the general education curriculum consistent with the Individuals with Disabilities Education Act (IDEA), reflect professional judgment as to the highest possible standards achievable by such students, are designated in the individualized education program (IEP) for each such student as the academic achievement standards that will be used for the student, and are aligned to ensure that a student who meets the alternate academic achievement standards is on track to pursue postsecondary education or employment.

Although No Child Left Behind was helpful in implementing education research to promote a mandate that required schools to look for students in need of educational services, and meet those needs as the means for federal assessment of school performance, those goals did not work out that way perhaps due to political desires shifting or the inability to receive bureaucratic support of state and local school authorities. Teachers’ unions were angered that testing under NCLB was increasingly used (or threatened) to evaluate teachers; state departments of education were eager to inflate performance; and conservatives threatened to rebel against federal mandates.

What is clear that ESSA was an compromise in the midst of federal budget cutbacks, wherein the president gave in to conservatives of the opposing party now in control of congress. This is because these conservatives have long sought to abolish the Department of Education (a long-time Republican goal that went into hiding in the 1990s), but they now have severely curtailed its leverage with states and districts by removing conditions on federal funds. The experiment with alternate funding systems that might look like public-school choice, such as vouchers and charter schools, did not reduce federal spending on K-12 education, but consolidated dozens of funding streams into block grants.

ESSA illustrates the strange politics of American education, for despite unquestionably conservative support staunch liberal groups support ESSA. Local policy is now made by those who implement it, rather than the federal government who pays for it. It is a matter of time as to whether children with learning disabilities benefit with these new differing methods of alternate testing. The key problem is that parents can no longer evaluate one school’s performance from another if they used different testing methods, which at its core was the main focus NCLB was helping to establish for American education.

Today under ESSA parents should be wary because state and local control will now serve as an obstruction to measuring disparities between schools that succeed and those that do not for children with special needs. If this is an “improvement” to allow those whom parents historically have found hide information of their mistakes, and misrepresent progress in the interests of cutting costs for their school districts, then testing is merely a means to validate taxpayer spending – multiple types of alternate testing does not communicate successful educational curriculum.

Despite its failures, NCLB made reducing educational inequity important and measuring inequality between schools available. Federal education law was created because states and districts were creating racially unequal schools, as well as allowing school in poor and impoverished areas to get nothing. ESSA’s goals have bipartisan support, because the states and local school districts that have been attempting to avert practicing federal policies for years, now have persuaded congress that they again are ready for their solo performances. Is this a step forward for American education of children with disabilities – history shall be the judge of what has begun.