Rewriting No Child Left Behind: Are there the legs to carry it across the finish line?

Congress has been busy since it returned from the Easter/Passover recess. As was mentioned in the February Washington Update article, the House and Senate agendas are very full, including addressing the 2016 budget and appropriations; several necessary authorizations; controversial sex trafficking legislation; the deal with Iran; Export Import Bank; data privacy; confirmation of a new attorney general; and fixing Medicare.

Republicans have named their conference committee appointees for the budget bill, but the Democrats have not. The Senate has just finished the Medicare reform bill that includes the "doc fix" to change the way Medicare pays physicians, and the Medicare Access and CHIP Reauthorization Act that provides $800 million in funding for the Maternal, Infant, and Early Childhood Home Visiting program for fiscal years 2016 and 2017. Also, the Senate passed a two-year funding extension for Secure Rural Schools, affecting federal forest counties and students in thousands of school districts.

Several other items are on Congress' plate that cannot be ignored which are called "Fiscal Speed Bumps" including addressing again the debt ceiling (though the Treasury Department's "extraordinary measures" will move the actual date to this fall), the 2016 budget and appropriations, as well as fixing sequestration that goes into effect again in January 2016.

But, first and foremost on your mind, is the status of the reauthorization of No Child Left Behind (NCLB) also known as the Elementary and Secondary Education Act (ESEA). Yes, there is finally some constructive movement. Two significantly different bills have been written and approved by the respective authorizing committees. Each awaits action on the Senate and House floor. The next sections will describe what has transpired, what is different, and what can be anticipated.

Reauthorization of ESEA (aka NCLB)

Reauthorization is long overdue. The last three Congresses have tried and failed to rewrite it. Everyone agrees that No Child Left Behind is broken and in need of a rewrite.

ESEA just celebrated the 50th anniversary of its signing by President Lyndon Johnson in 1965. The big questions include — can Congress pass a bill that makes the appropriate changes; can it keep the basic principles and tenets of the 1965 legislation; can the same bill pass both houses; and will the President sign it?

The Senate Health, Education, Labor and Pensions Committee (HELP) unanimously passed its rewrite of the education bill, "Every Child Achieves Act" (ECCA), on Thursday, April 16. Now everyone awaits scheduled floor debates and votes in both the Senate and the House.
Senators Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) worked together for more than two months to craft a bill that attempts to fix NCLB problems and be bipartisan in approach. Their visions for the law's rewrite were miles apart. Alexander preferred handing control over education back to states, leaving it up to them how to deal with standardized tests and poorly performing schools. Murray wanted stronger federal powers to ensure students — especially poor, minority, and disabled students — were being well served by their schools. Sens. Alexander and Murray forged a formidable working relationship that made the difference.

Even with the cooperation, several civil rights and education groups have stated the bill, as well as the House version, does not go far enough to ensure state and local accountability, provide support for the students in greatest need and include a strategy to improve all low performing schools.

There are high hopes for the legislation's passage with a large majority of both Democrats and Republicans. The expectation is a "veto proof" bill. Also, this vote would send a message to the House that its version of the rewrite, the "Student Success Act," is not supported in the Senate because it makes drastic changes and moves away from the ESEA's original principles. Both House and Senate versions address toxic education topics like testing and school performance ratings. However, the House bill goes significantly farther in changing the federal role and programs, funding strategy, assessment requirements and accountability.
The House Committee on Education and the Workforce passed the Student Success Act, before the Senate action, along a party-line vote, and is also waiting for scheduled debate time on the House floor. No Democratic amendments offered during the committee mark up were accepted. Democratic committee members felt the bill did not continue the fundamental principles and intent of ESEA. The House rewrite is very similar to the one passed by the committee in 2014.

Upon the House committee's passage, the President issued a "Statement of Administration Policy" or SAP, which stated he would veto the Student Success Act if it came to his desk in its current form.

Action on the House floor was scheduled, but then delayed because Republicans did not have the votes to pass the bill. Congressman John Kline (R-Minn.), the Committee chair, expects the House Rules Committee to grant floor time in the coming weeks to vote on the Student Success Act. Passage by the House ultimately means a conference committee to work out the legislative and policy differences and create a single piece of legislation that eventually will go to the President before the end of this year for his signature.

Ironically, even though both House and Senate bills are significantly different in substance and approach, they both stated similar objectives and use similar language — each bill strengthens state and local control; maintains important information for parents, teachers and communities; changes federal test-based accountability; and reaffirms the states' role in determining education standards. However, they accomplish these objectives in very different ways.

What is different?

Depending on where one sits on the political spectrum determines one's position on the House's Student Success Act and the Senate's Every Child Achieves Act. Civil rights and several education associations have objected to many parts of both bills because they diminish many accountability requirements, support for low-performing students and requirements to improve low-performing schools, especially high schools with low graduation rates. Conservative groups are very supportive of the House version.

Jeanne Allen, formerly a domestic policy advisor for President Reagan and education scholar at the Heritage Foundation, wrote in the National Review Online, that the "Student Success Act" is the "epitome" of a conservative agenda and will "swing the pendulum back to minimal federal intrusion" in the nation's classrooms. House Committee Chair Kline says the bill eliminates "the one-size-fits-all accountability system that ushered in an era of ineffective high-stakes testing that has done little — if anything — to improve student achievement, and a tangled web of rules and regulations have stymied innovation in the classroom, local districts and states. The bill takes a fundamentally different approach by reducing the federal role and restores local control in education while empowering parents and education leaders." One of the fundamental differences between the two versions of the bills is the federal role in education.

Some see the Student Success Act as a radical departure from previous ESEA reauthorizations. It consolidates many of the discretionary grant programs and even eliminates some. As in the Senate bill, there are significant changes in the accountability requirements (described below). There is an effort to reduce the federal role in education, moving responsibility back to the states and local school districts. It allows for portability of federal funds including Title I dollars and further enhances school choice.

During the Senate Committee mark up, some 58 amendments were offered of which 21 were withdrawn. Of the amendments considered by the committee, 29 passed and eight failed. Sen. Alexander anticipates that during the floor debate, Senator Al Franken (D-Minn.) will bring up his amendment to stop bullying of LGBT youth, and Senator Tim Scott (R-S.C.) will introduce his amendment to Title I for a portability plan, as well as a school voucher amendment. These amendments, Alexander noted, could have derailed the bill in committee if they had been brought to a vote. By offering an amendment, whether it is considered or withdrawn, it allows the senator to introduce it during the floor debate.

In the Senate bill, some of the amendments included in the Committee's final version are:

  • Early education grant program sponsored by Senators Murray and Johnny Isakson (R-Ga.);
  • 21st Century Community Learning Centers along with a new evidence based innovation fund;
  • Grants to states to improve the quality and reliability of state assessments sponsored by Senator Tammy Baldwin (D-Wis.);
  • Improve data collection methods and systems intended to reduce the burden on school districts sponsored by Senator Michael Bennet (D-Colo.)
  • Changing the funding formula ratio to 80 percent of poverty, 20 percent of the population regarding funding to states for high quality teachers, principals and other school leaders sponsored by Senator Richard Burr (R-N.C.); and
  • Related to the Burr amendment, included a "hold-harmless" provision for states that would lose funding by changing the formula Senator Bob Casey (D-Pa.) and further amended by Burr with language that there is a gradual decrease of "hold harmless" until it is phased out in seven years.

The Alexander/Murray bill takes a different approach to accountability than was included in NCLB. Rather than a singular focus on test scores and graduation rates, their bill requires a system with multiple measures. This version requires annual math and English language arts assessments in grades 3 through 8 and, once in high school, and requires states to develop a statewide accountability system. For elementary and middle schools, the accountability system will incorporate test scores, English language proficiency, a statewide academic indicator selected by the state, and an additional indicator selected by the state. For high schools, the accountability system will incorporate test scores, graduation rates, English language proficiency and an additional indicator selected by the state. This additional indicator may be used to show readiness for post-secondary education or the workforce, student engagement, teacher engagement, school climate or any other state-determined measure.

One way to address the issue of multiple measures is to employ data dashboards in schools and districts. The dashboards can be an effective mechanism or tool for accountability and improvement, particularly in identifying the root-cause of the poor performance. Dashboards also assist teachers and school leaders in instruction, and provide valuable information about student progress and problems to teachers, principals and even parents when appropriate.

Civil rights groups and some education organizations have raised concerns about accountability. These include:

  • loss of support for traditionally underserved students and low-performing schools;
  • faulty accountability indexes;
  • insufficient goals for graduation rates;
  • inadequate support for subgroups; and
  • inadequate support for low-performing high schools.

And the requirements for the state to take action have either been left out or reduced to the form of goals instead of actions.

Also, there is a "catch 22" in the Senate version. The bill removes the requirement that low-performing schools be identified for comprehensive reform. When they are not identified as such, they may not be eligible for school improvement funding under the bill. This is because school improvement funding is available only to schools that are formally identified for improvement. To further add to the problem, states are under pressure to identify as few schools as possible, and there are no real requirements regarding which schools get identified.

No one is complaining about either bill eliminating teacher evaluation as part of accountability, adequate yearly progress (AYP) or a waiver provision. Also, left out is the provision for highly qualified teachers.

The current plan in the Senate is for one to two weeks of floor debate, but this may be overly optimistic. The Republicans will rely on Democratic members to help carry the day in Senate. House debate will probably come after the Senate's. It will be interesting, given the beginning of the 2016 Presidential campaigns. In the end, the Republicans will need Democratic members in each house to help them pass the final bill that emerges from the conference committee, if one does.

Keep our fingers crossed.

Read the Bills

To read a summary of the Senate bill, go to:

To learn more about the House's Student Success Act, go to:

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