The Senate voted Wednesday to block Obama administration accountability rules governing how states rate and improve schools under the Every Student Succeeds Act.
The move, which precludes the U.S. Education Department and newly confirmed Secretary Betsy DeVos from issuing any substantially similar regulations, will send even more power back to the states, already retaking the lead in education policy after ESSA’s bipartisan passage in 2015.
In contrast, Thursday’s 50–49 vote to block the regulations using the Congressional Review Act fell almost entirely along party lines, with the exception of Sen. Rob Portman, Republican of Ohio, who voted with all the Democrats to keep the accountability rules. Portman said they were needed to protect students “who have too often been marginalized and forgotten.”
That ESSA vote was also a change from Wednesday, when eight Democrats voted with the Republican majority to use the Congressional Review Act to vacate another Obama-era education rule governing teacher preparation programs.
Debate over the Obama accountability regulations broadly pitted Democrats, arguing that the rules are necessary to maintain ESSA’s civil rights protections for vulnerable student groups, against Republicans, who said the rules were an overreach that violated the letter and the spirit of the law, whose intent was to send authority for K-12 education back to the states.
Democrats also argued that the wielding of the Congressional Review Act was too blunt. Once used only rarely, Republicans have taken to the process with gusto, so far using it to block seven Obama administration regulations on everything from mining to guns to federal contracting. Before this Congress, it had been used successfully only once.
Much of what’s included in the regulations is broadly accepted, said Sen. Chris Murphy, Democrat of Connecticut, and any provisions Republicans don’t like should be fixed through the regular rulemaking process, not by totally banning future regulations.
“This isn’t like these other CRA [resolutions] where Republicans didn’t like any part of it, where Republicans didn’t see any need for the regulation going forward. This is different,” Murphy said Wednesday evening. “We agree on 80 percent of this one, but the 80 percent is likely gone by passing this.”
Sen. James Lankford, Republican of Oklahoma, said Democrats’ arguments amounted to asking DeVos to fix the mistakes made by the Obama administration by going back and issuing new rules.
Using the Congressional Review Act lets Congress “settle this forever,” Lankford said.
“As long as this law is in place, [the Education Department] can re-promulgate a rule and turn right back around and say Washington, D.C., is going to control teacher evaluation, student success evaluation, and school evaluation,” he said. “This ends that forever.”
Civil rights leaders want Washington, D.C., to have strong oversight of those areas. They have been particularly vocal about the need to uphold the ESSA regulations, arguing that a quality education is an equal rights issue that shouldn’t be left up to states’ discretion.
Catherine Lhamon, former assistant secretary for civil rights at the Education Department, told The 74 the rules were the best judgment of many experts, written through a public process to follow ESSA as laid out by Congress.
“Students in school every day deserve that expertise, and I think blocking that expertise is a serious mistake,” said Lhamon, now the chair of the U.S. Commission on Civil Rights.
State leaders, meanwhile, have emphasized that they’re ready to take the lead on education and the disruption brought by the Congressional Review Act won’t be that great.
Permanently blocking the ESSA rules — already on temporary hold as part of a broader Trump administration freeze on all pending regulations — shouldn’t have a big impact on the states set to submit their plans in early April, said Chris Minnich, executive director of the Council of Chief State School Officers.
Instead, the law banning the Obama-era rules, and whatever guidance DeVos issues in the interim, will have a bigger impact on states submitting on the second, Sept. 18, deadline.
“There will be things that will be confusing, but I think the biggest thing is to not overstate that there will be too much confusion in the states,” Minnich said.
The department should issue guidance — not official regulations, which carry the weight of law and are prohibited by the passage of the Congressional Review Act resolution — in a few discrete areas, Minnich said.
He’d like, for example, some clarity for states on how to incorporate the performance of English-language learners into school accountability plans, and how much weight to give academic measures in school accountability systems. The law just says they must have “much greater” weight than non-academic measures, like school climate surveys or access to advanced coursework.
Minnich also said states might need guidance on how they should include the mandate that 95 percent of students participate in standardized tests into school accountability systems, given that the law also protects students who opt out of the exams.
“The law does give states the clarity they need, and there may be a need for additional backing on certain areas, but we think states are the ones that are going to be leading the conversation as we implement this law,” he added.
Kirsten Baesler, superintendent of public instruction in North Dakota, echoed that idea, saying her state is well on its way.
North Dakota state leaders convened a group of stakeholders that met monthly starting in May of last year, and officials have a public plan that they’ll take to the governor for his OK next week, she said.
“The regulations really had no significant impact on those primary commitments that we had,” she said.
North Dakota never received a waiver from the No Child Left Behind standards, so it has been operating under its restrictions for 15 years, and leaders are eager to begin a new system, Baesler said.
At this point, her only question is on the specific format the Education Department wants the plans to follow, she said.
DeVos pledged to get states more information on state plan requirements by March 13, ahead of the April 3 first submission deadline.
In that letter, she said her rules would require only information “absolutely necessary” for the consideration of state plans.
“One of my main priorities as secretary is to ensure that states and local school districts have clarity during the early implementation of the law. Additionally, I want to ensure that regulations comply with the requirements of the law, provide the state and local flexibility that Congress intended, and do not impose unnecessary burdens,” she wrote.
The Education Department did not respond to questions on what issues DeVos’s new guidance may or may not touch, which groups are being consulted as that guidance is being drafted, or what, if any, feedback the department has received about the issue generally.
A department spokesperson in an email to The 74 last week emphasized that states should continue moving forward with their plans, and that the regulatory delay (created first by the broader freeze and now by the Congressional Review Act measure) should not adversely affect or delay progress in implementing ESSA.