ESSA Negotiated Rulemaking Committee Meets for First Session

The negotiated rulemaking process for the Every Student Succeeds Act (ESSA) officially began this week as negotiators on the rulemaking committee met for their first three-day session.  The rulemaking committee will help to develop regulations in two key areas under ESSA – assessments and a number of related questions, and the supplement, not supplant provision under Title I.  The negotiators spent much of their first session engaging in big-picture conversations and considering a number of questions provided to the committee by the U.S. Department of Education (ED).


Negotiators took most of Monday to discuss supplement, not supplant, which requires that school districts use federal Title I funds in addition to, not in place of, non-federal dollars.  The committee debated how States should hold districts accountable to this provision, such as potentially withholding funds from those districts that fail to comply, but one negotiator commented that withholding funds would unfairly punish students.


On assessments, the committee considered how to define “nationally recognized test” under ESSA (the law allows local educational agencies – LEAs – to substitute these tests for the regular State assessment).  Most agreed that the ACT or SAT would fall into that category, but Delia Pompa, a representative of the Migration Policy Institute, raised concerns about the lack of accommodations for special education students and English learners (ELs) with the ACT and SAT.  In addition, some negotiators argued that regardless of which test a district chooses, the same test should be required for all students across that district. 


The committee must also determine how to ensure assessments for ELs are valid and reliable.  The law requires States to offer tests to assess new non-English speaking students in any language that a “significant number” of students speak.  One negotiator would like ED to provide guidance to States to help them determine how to define “significant number,” without offering its own specific definition.  Other suggestions for improving assessments for ELs included making additional financial resources available from the federal government and requiring EL proficiency assessments to be peer-reviewed.


Finally, the negotiators touched upon the one percent testing cap on using alternate assessments based on alternate achievement standards for students with the most significant cognitive disabilities, noting concern about how to monitor the cap by district (the law sets the cap at the State level, but prohibits a State or federal government from setting a similar district-level limitation).  Some individuals supported defining which students should be eligible for alternate assessments, while others argued it would be best to leave the language as it currently stands.


Negotiators will meet for a second session next month, with an optional third session available if necessary.  Based on the conversations from this week’s session, federal officials will begin to draft regulatory language for the committee to consider.  If after three sessions negotiators fail to come to an agreement on any of the assessment-related issues or the supplement, not supplant provision, then ED will proceed with the standard regulatory process which includes publishing proposed regulations in the Federal Register and seeking input from the public prior to issuing a final rule. 


Alyson Klein, “At ESSA Negotiated Rulemaking, Lots of Conversation But No Major Action,” Education Week: Politics K-12, March 21, 2016.
Alyson Klein, “How Far Should ESSA Negotiated Rulemaking Go On Tests and Spending,” Education Week: Politics K-12, March 22, 2016.
Alyson Klein, “English-Language Learners Steal ESSA Negotiated-Rulemaking Spotlight,” Education Week: Politics K-12, March 23, 2016.

About the Author

Kelly Christiansen is an associate with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.