A Legislative Surprise: Breaking Through Congressional Gridlock

• By Fritz Edelstein
• 07/23/15

The last few articles have indicated there was a good possibility for a reauthorization of the Elementary and Secondary Education Act (aka No Child Left Behind/NCLB). No such bill has had floor time since NCLB was passed in 2002, and it was due to be reauthorized in 2007. This year, the House and Senate have been successful in writing and individually passing their own version. To everyone's surprise, the House quickly passed the Student Success Act (HR 5) on a strictly partisan vote and the Senate passed its bill a week later. However, the Senate approach was completely different. Senators Lamar Alexander (R-Tn.) and Patty Murray (D-Wa.) presented a bipartisan ESEA reauthorization bill, Every Child Achieve Act, on the Senate floor, and it passed by a vote of 81-17. This was a major step in breaking what has been seen as congressional gridlock due to political polarization in both bodies. The passage in each house, and the speed at which the bills were addressed, surprised most education policy pundits and wonks. Not this one.

Also, this is the first time in many years that both the House and Senate Appropriations Committees have voted out of committee an appropriation for the U.S. Department of Education, as well as the Departments of Labor and Health and Human Services. (This is for FY 2016.)

Below is an overview of the version of both education bills and House and Senate committee appropriation actions. Since reports have yet to be filed on the legislation in either the House or Senate education bills, no in-depth explanation is provided at this time.

Reauthorization of the Elementary and Secondary Education Act
The House was the first to act, though the debate began in the Senate first. While both bills are substantively different, the fundamental themes are the same, such as getting rid of one-size-fits-all, reducing the federal role, and returning responsibility for education to states and local school districts.

The House
On a vote of 218-213, the House passed the Student Success Act (HR 5). It was a very close vote but totally partisan. The legislation replaces the current K-12 education law, No Child Left Behind, with conservative reforms that would reduce the federal role, restore local control and empower parents and education leaders to hold local schools accountable. It should be noted that not one Democratic amendment was passed in committee or by the full House, nor did any Democrat vote for the bill in either committee or on the floor.

"For too long, Washington's priorities have outweighed what parents, teachers and local leaders know is best for their children. Today, we took an important step in a bold, new direction," Committee Chairman John Kline (R-Minn.) said. "After years of working with education stakeholders and members of Congress, I'm pleased the House has advanced responsible reforms that would give the American people what they deserve: a commonsense law that will help every child in every school receive an excellent education."

Chairman Kline continued, "The passage of the Student Success Act moves us closer to replacing a flawed law that has not delivered on its promises. I look forward to continuing this important effort and I am confident — as we have shown in the past — we can find common ground and send a bill to the president's desk that will have a lasting, positive impact on America's families."

The Committee's press release (written by the majority) states the "Student Success Act" as passed by the House:

• Replaces the current national accountability scheme based on high stakes tests with state-led accountability systems, returning responsibility for measuring student and school performance to states and school districts;
• Protects state and local autonomy over decisions in the classroom by preventing the Secretary of Education from coercing states into adopting Common Core or any other common standards or assessments, as well as reining in the secretary's regulatory authority;
• Ensures parents continue to have the information they need to hold local schools accountable;
• Provides states the ability to use federal funds to examine the number and quality of assessments given to students and empowers school districts to administer their own assessments with state approval;
• Eliminates 69 ineffective, duplicative and unnecessary programs and replaces this maze of programs with a Local Academic Flexible Grant to help schools better support students;
• Empowers parents with more school choice options by continuing support for magnet schools and expanding charter school opportunities, as well as allowing Title I funds to follow low-income children to the traditional public or charter school of the parent's choice;
• Provides parents the ability to opt children out of annual testing and exempts schools from including students that have opted out in the schools' testing participation requirements; and
• Strengthens existing efforts to improve student performance among targeted student populations, including English learners and homeless children

It should be noted that HR 5 eliminates "supplement not supplant" in current legislation, and enables portability of federal education dollars by parents.

The Senate
Senator Alexander led the floor debate on Every Child Achieves Act of 2015 (S 2117) beginning on July 7. The bill is a bipartisan effort of Senators Alexander and Patty Murray. The bill was voted out of the Senate Committee on Health, Education, Labor and Pensions (HELP) unanimously, and was passed by the full Senate on July 16 by a vote of 81-17. This is a very lopsided vote and signals significant consensus in the Senate that has not been seen in many years. Also, it gives the Senate a strong bargaining position during Conference Committee discussions and negotiations.

29 amendments were added to the original Alexander-Murray bill during the Committee mark-up. During floor debate an additional 27 amendments were approved by unanimous consent; another 28 passed by a voice vote and an additional 10 amendments were agreed upon by individual votes. To read about the 78 amendments considered on the floor and the 65 that were adopted, go to http://1.usa.gov/1K9MxMz.

One key amendment that did not pass was on accountability that was supported by many civil rights and some education groups, but opposed by the National Education Association. The groups, as well as the administration, believe this amendment is necessary to ensure schools serve the nation's most disadvantaged children. It was defeated 54 to 43. The amendment aimed to give the federal government more say in defining which schools are low performing and require intervention. Instead, the Senate bill allows states to decide not only how to judge schools' success and which schools don't measure up and what to do to improve them.

The unsuccessful amendment would have required states to identify and take action in:

• the lowest-performing five percent of public schools, as determined by the state;
• high schools where fewer than 67 percent of students graduate on time; and
• any school where poor, disabled, minority or English-language-learner students do not meet state-set achievement goals on standardized tests and other measures for two consecutive years.

Senator Murray, in her final floor remarks after passage, stated that she would raise the accountability issue during conference committee negotiations.

It should be noted that prior to the Senate debate and vote, President Obama issued a SAP (Statement of Administration Policy) that he would not veto the Senate bill, but would like to see some changes. The President stated previously that he would veto the House version.

How do the versions differ?
There are a few significant differences and others are more subtle. As stated above, two differences are the House version eliminates the "supplement not supplant" provision and the Senate's does not; and the House allows for portability of federal education dollars so parents can take their kids out of low-performing schools and the funds follow the child. This is school choice, and the Senate voted down an amendment on this issue.

The House version eliminates numerous programs and consolidates some into a block grant. The Senate's bill consolidates some programs and has added others, including one for early childhood education. There are other differences but these are some of the significant ones.

Next Steps
Given both houses have passed substantively different bills to reauthorize the same piece of legislation, so there will be a conference committee. The leadership of each body will appoint conferees and they will meet, discuss and negotiate to come up with a final bill (hopefully). It will be very interesting to see who are the conferees.

Discussions will begin between the respective House and Senate staffs to find common ground and the major differences. Most likely, the chairs and ranking members of the House and Senate committees will also be discussing the same things, but doing so informally prior to the conference. There is no question that there will be some horse trading prior to and during the conference in order to write a final bill to be voted on by both houses. This should happen over the next several weeks and be finalized in the fall.

Given the overwhelming vote in the Senate, it should hold the stronger hand in the Conference Committee. Experience tells me, a majority of the Senate bill will prevail, but to get a final bill, the Senate conferees will include selected pieces of the House bill to insure it passes the House. If it all works out, there could be a newly reauthorized Elementary and Secondary Education Act before Thanksgiving for the president's signature.

Other Education Legislation
Both the House and Senate Education Committees plan to begin discussions and development for the reauthorization of the Higher Education Act during this session of Congress. Some people believe it is possible to have a bill ready in the near future to be considered by both bodies. Another bill that may be forthcoming is one in support of early learning and early childhood education, since it was not fully addressed in the ESEA reauthorization.

Appropriations for FY 2016

The House and the Senate appropriation committees respectively are moving ahead with their fiscal year 2016 spending bills. Lawmakers in both chambers are trying to avoid across-the-board sequestration cuts, so they are picking winners and losers. Both committees have proposed lower funding levels for the U.S. Department of Education. The House would reduce the agency budget by $2.8 billion and the Senate would reduce it by $1.7 billion. A final vote has yet to be taken in either body.

David DeSchryver, of Whiteboard Advisors, explains the proposed Senate and House education appropriations changes in one easy visual. While the details are still emerging, he created a cheat-sheet [http://www.whiteboardadvisors.com/files/Federal%20Budget_WA.png] that shows the notable percentage changes from last year's appropriations. In short, the formula programs and the charter school grants survive cuts. The Senate tries to take a nuanced approach. The House just eliminates many programs and reduces funding for others. Another source for appropriations numbers and updates is the Committee for Education Funding's site at www.cef.org.

Some details
At the same time reauthorization is occurring, there is movement to achieve an appropriations bill for the U.S. Department of Education, and not have another continuing resolution. Whether that happens is still to be seen.

Both the House and the Senate Appropriations Committees have voted out a version of a FY 2016 Appropriation for the agency. They are not completely similar but are close, especially in principle. Each house must vote on their appropriation first before any negotiations can be scheduled. President Obama would not sign either bill in its present form.

Brief summary of each bill:

• The House Appropriations Committee approved $64.4 billion for the FY 2016 education spending plan, cutting current federal spending for the U.S. Department of Education by $2.8 billion or about 4.2 percent. The markup was approved on a party-line vote, ad would essentially lock in the funding cuts known as sequestration. The bill eliminates 19 duplicative, ineffective, or unauthorized education programs, and makes reductions to several other lower-priority programs. It increases funding for Indian Education, Charter School grants, IDEA state grants and Impact Aid.
• The Senate Committee on Appropriations approved its own FY 2016 Labor, Health and Human Services, and Education spending bill. The bill funds the Department of Education at $65.5 billion — a $1.7 billion decrease from FY2015 or a 2.5-percent reduction. The bill slightly increases Title I funding, as well as the maximum Pell Grant amount, and added a provision that prohibits the federal government from mandating or incentivizing the adopt of any standards or curriculum. The bill also includes a provision that prohibits the Department from moving forward-until Congress acts on several parts of the Higher Education Act, such as regulations and policies related to most of their major higher education initiatives, including the college ratings system, defining gainful employment, establishing requirements for State authorization, defining credit hour, and teacher prep regulations. Timing of when the bill is expected to go to the floor remains unclear. Other programs receiving funding increases are Charter School grants and IDEA state grants.

At this time, only the House has issued a Committee Report on the bill, so those are the only specific budget figures available. One can find these at www.house.gov; click on Committees, then appropriations and find education. For the senate it is a similar process by going to www.senate.gov; click on Committees, then Appropriations and find the Labor, HHS, Education.

CEF's initial analysis of the House bill indicates that 27 education programs are eliminated, including school improvement state grants, striving readers, preschool development grants, mathematics and science partnerships, safe and drug-free schools and communities national programs, elementary and secondary school counseling, Investing in Innovation, school leadership, magnet schools assistance, Advanced Placement, full-service community schools, teacher quality partnerships, First In The World, and the regional educational laboratories. Funding for Teacher Quality State grants is slashed by $668 million (-28.3 percent).

At the higher education level, funding for Pell Grants is cut by $370 million. While this will not adversely affect the Pell grant maximum award for the 2016-17 school year, it would result in a Pell shortfall in FY 2017 of $634 million (based on the March CBO baseline, assuming that the FY 16 House appropriated level for Pell is also the FY 17 appropriated level). Funding for programs in the Institute for Education Sciences is cut by $163 million.

Many other education programs are frozen, including Title I grants to LEAs, 21st century community learning centers, rural education, English Language Acquisition State grants, IDEA Preschool grants, IDEA Grants for infants and families, adult education State grants, Federal Supplemental Educational Opportunity Grants and Federal Work Study. Many of these programs are still funded below their FY 2012 pre-sequester levels.

On the Senate side, its version eliminates ten education programs including striving readers, preschool development grants, Investing in Innovation, school leadership, the physical education program, First in the World, and the Child Care Access Means Parents in School program.

In addition, it cuts funding for more than 40 other programs, including School Improvement State grants ($56 million), Teacher Quality State grants ($103 million), 21st century community learning centers ($117 million), elementary and secondary school counseling ($27 million), English Language Acquisition ($25 million), adult education State grants ($29 million), Federal Supplemental Educational Opportunity Grants ($29 million), and Federal Work-Study ($40 million).

Further, the Senate proposal rescinds $300 million for FY 2015 Pell grant funding. While this will not adversely affect the Pell grant maximum award for the 2016-17 school year, it will likely result in a Pell funding shortfall in FY 2017.

Other Things Happening
The Council of Chief State School Officers sent states a survey earlier this year and recently revealed one of their findings: At least 39 states are working to reduce unnecessary testing in various ways. That might include establishing a task force, surveying existing tests, gathering feedback from educators and more. Last October, CCSSO and the Council of the Great City Schools announced an effort to review testing across states and districts.

Which states aren't among the 39? According to CCSSO's survey results: Alabama, Alaska, Arizona, California, Maine, Montana, Nevada, New York, North Dakota, Pennsylvania, South Dakota and Texas. But doesn't mean they're doing nothing — CCSSO stresses that some additional states have taken action since the survey was administered earlier this year. For example, North Dakota Superintendent Kirsten Baesler launched a task force to review the state's testing options after glitches with the state's Smarter Balanced vendor, Measured Progress, interrupted exams this spring. Some states took action prior to the survey and some may not have responded to the survey.

Here's how PARCC membership has changed:

• PARCC states, as of 2011(25): Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, District of Columbia.
(*Note that some states, like New York and Massachusetts, use PARCC in a far more limited way than Ohio has.)

• PARCC states now (10): Colorado, Illinois, Louisiana, Maryland, Massachusetts, Mississippi, New Jersey, New Mexico, Rhode Island, District of Columbia. (And there still may be a few more states dropping out)

The Smarter Balanced assessment is at 17 states but maybe losing some states, too.

In Summary
A great deal has transpired during the last few months. One can say there is some consensus supporting the Senate version, but accountability is an outstanding issue. It is anyone's guess how or if it may be addressed in the conference committee. The big question is what will the final version of the ESEA bill look like and how much will the House get included in it so it can pass that body.

States (governors, legislatures and chief state school officers) and local school districts seem to be satisfied with the improvements included in the Senate bill. But there is more work to be done before a final bill is approved and sent for signature.

Stay tuned.