The ‘Miraculous’ Rise and Ugly Fall of ESSA: Is Congress’s Education Coalition Too Broken to Tackle Higher Ed?

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The move by House and Senate Republicans to use the blunt-force Congressional Review Act to obliterate the Obama-era K-12 accountability rules shows just how badly the education consensus has cracked on Capitol Hill.
Sen. Chris Murphy, Democrat of Connecticut, lamented that they were vaporizing the regulations even though lawmakers agreed on 80 percent of them. Sen. James Lankford, Republican of Oklahoma, said the finality of getting Washington, D.C., out of judging teacher effectiveness, student achievement, or school success suited him just fine.
“This ends that forever,” he said.
Sen. Patty Murray, the ranking Democrat on the Senate education committee, said the whole episode amounted to a “retreat from bipartisanship.” A headlong plunge might be more accurate.
It wasn’t that long ago, on a Friday afternoon in February 2015, that the now-fractured forces shaping federal education policy began their move to the middle.
Sen. Lamar Alexander, just elevated to the chairmanship of the Health, Education, Labor and Pensions Committee, had started his tenure with legislative guns blazing.
He introduced a bill to rewrite the Elementary and Secondary Act, one heavy on school choice that Democrats said was too conservative and partisan to even consider as a starting offer.
(74 Interview: Senator Lamar Alexander on Keeping ESSA From Becoming the Next Obamacare)
Alexander, though, vowed it would be the base bill that would move through the legislative process. Bipartisanship, in his view, meant having an open system through which anyone could offer relevant amendments throughout the legislative process, not starting with a base bill that had wide support.
It was in keeping with past efforts to reauthorize the law in both houses that had essentially gone nowhere. Republicans had put forward rewrites that got no Democratic votes on the House floor, and Senate Democrats had pushed bills through committee that few Republicans backed.
Alexander’s pugnaciousness, though, was short-lived.
That February Friday, Alexander, the education secretary under President George H.W. Bush, and Murray, a former preschool teacher from Washington state, announced that instead of moving forward with Alexander’s bill as the starting point, they’d work to write their own version — together.
“We know our constituents expect us to fix this broken law [No Child Left Behind] and improve education for students, families, and communities across the country — and we expect to succeed,” they said.
Suddenly, it seemed, the party’s retrenched positions were softening and the logjam on K-12 legislation would be broken. Everyone, to use one of Alexander’s favorite phrases, wanted to “get a result.”
So began a period of at least somewhat calm in the education wars that had long rankled Capitol Hill.
HELP Committee members agreed to hold controversial amendments that could sink the bill before it got to the floor, eventually passing the measure unanimously. That comity continued through 2015, as the bill moved through the Senate floor that summer and congressional staff hashed out a bipartisan, bicameral compromise that fall.
The final version of the Every Student Succeeds Act passed the House 359–64 and the Senate 85–12. President Obama famously called it a “Christmas miracle.”
But the law was written with a level of vagueness necessary to draw wide support. That uncertainty soon bred discord, and by the spring of 2016, the days of miracle and wonder were pretty much over.
(The 74: Conor Williams — Congress Moves to Kill ESSA Accountability Rules, Giving States Lots of Room to Do as They Please)
One of the Obama administration’s first proposals to regulate the bill, a wonky regulation governing how states spend money to help low-income children called “supplement not supplant,” set off an immediate firestorm.
Alexander hauled then–Education Secretary John King in front of his committee, saying the administration “may get an A for cleverness, but an F for following the law.”
King didn’t back off, going so far as to tie the rules to the separate-but-not-equal legacy of Brown v. Board of Education. His proposal for school accountability standards wasn’t as widely criticized as the supplement-not-supplant rule, but it still drew a hard line around standards for judging and turning around the lowest-performing schools.
(The 74: Under ESSA, Why John King Won’t Go Along to Get Along)
At that point, seemingly the whole world assumed Hillary Clinton would follow Obama into the White House, so King had little reason to believe his successor wouldn’t take his lead, never mind banish his rules for eternity.
Alexander was the one left trying to preserve the conservative portions of the bill from what he saw as executive branch overreach, worried the law would become a partisan punching bag like Obamacare.
Then, of course, came the election that changed everything.
King withdrew the supplement-not-supplant proposal and moderated the accountability rules before leaving office, but it wasn’t enough to avoid fire from the newly ascendant Republicans.
Two years after Alexander and Murray’s first stand for bipartisanship, the Senate passed, by one vote on party lines, a bill to overturn the accountability rules. They were taken down through the Congressional Review Act, a process used to block regulations in usually more sharply partisan areas, like gun control and environmental protection.
Now that the compromise around ESSA has crumbled, implementation is in the hands of the states, leaving congressional Democrats to fear how they will protect the civil rights “guardrails” they included in the bill to ensure a quality education for kids of color, students with disabilities, English-language learners, and others who often weren’t well-served in the past.
In the wake of the rancor around ESSA and the still-fresh Armageddon of confirmation battles over Education Secretary Betsy DeVos, the HELP Committee is set to tackle another big education law: rewriting the Higher Education Act.
Liberal firebrands like Elizabeth Warren and Bernie Sanders are unlikely to compromise on their hard-line issues, such as tough regulation of for-profit colleges and reducing college costs and student loan debt. Republicans, meanwhile, won’t have to be as conciliatory to the minority, given universal GOP control of the federal government.
It will again be up to Alexander and Murray to thread the legislative needle, all the sharper given recent events, to break through the partisan bickering and once again “get a result.”

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