Murky ESSA Regulations Lead to Guessing Game

By Richard M. Long

Over the next six months states will be filing their plans with the U.S. Department of Education to put in place the Every Student Succeeds Act (ESSA). This new law restructured many of the actions state and local education agency officials will need to make to design their educational services to comply with ESSA, and there are big changes compared with the decisions required under the No Child Left Behind law and the actions required by the Obama Administration.  

This is exciting, yet it isn’t without confusion. In the past, the Department of Education (USED) issued regulations and guidance to help educators and state and local officials interpret each section of the statute.  This has changed.  During the year between enactment of ESSA and the new administration taking office, the regulations have been drafted, issued, and then muted, pulled, or overturned. 

So what happens now?

The political science answer is that the statute becomes the sole authority with the agency as the enforcer of the statute.  States will still file their plans by late summer and then attention will turn to the local schools.  Unfortunately, it will not be as simple as now having requirements for supplement, not supplant; or accountability, or even stakeholder engagement be defined by each school district or state.  There is no procedure for this to happen and there is even requirements in the statute for regulations to be written with the process known as “negotiated rulemaking.”

So what does this all mean?

It means that there will be confusion and thus there will be groups who believe that they aren’t being fairly treated and they will seek redress.  This usually means the courts.  And, it will also mean that some school districts will seek to protect themselves by using old rules and procedures to protect themselves. This is not the outcome that anyone wants.

Additionally, the entire approach of empowering the states may also create another uncertainty, this is around how and what the federal government will seek by way of compliance. How will the agency determine if money is being used on the targeted population for Title I?  What will be their criteria?  Will it be fair?  How will fair be determined? 

The statute requires, for example, the use of a new technique. This is stakeholder engagement, and it too has undergone a wide-ranging voyage.  During the time between passage of the law and the Trump administration coming on board the Obama administration had encouraged groups to develop processes that engaged more people involved in schools deeper into the decisions needing to be made.  The agency sponsored several meetings on this idea. Now, with a new administration, stakeholder engagement was dropped from their requirements. But it is still in the statute. The process known has stakeholder engagement was used by most states when they developed their state plans. It is somewhat a moot point at the state level as states have drafted their plans and are now undergoing internal review; however, there are still local district and state requirements in the statute. How will they be defined?  How will USED discern if the requirements are being followed?  Will they even check?

One of the cardinal rules of leadership is to understand the effect of murky decisions.  In a nation of almost 100,000 public schools requirements are open to frequent interpretation.  What is clear and possible in one school, district or even state; isn’t as possible in another.  Plus, one of the primary reasons for ESSA, NCLB, and even the waivers under the Obama Administration was to concentrate resources in schools for students who are living in poverty.   How this is done is something that reasonable people can disagree on.  What isn’t reasonable is for them to have to guess.

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"During the year between enactment of ESSA and the new administration taking office, the regulations have been drafted, issued, and then muted, pulled, or overturned. 

So what happens now?"