The Long Road to Reauthorization The Final Stretch A Brief Overview of ESSA What s Next? Questions

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1 ESSA bout Time! The Every Student Succeeds Act Julia Martin Brustein & Manasevit, PLLC Agenda The Long Road to Reauthorization The Final Stretch A Brief Overview of ESSA What s Next? Questions Brustein & Manasevit, PLLC All rights reserved. 2 1

2 The Long Road to Reauthorization Brustein & Manasevit, PLLC All rights reserved. 3 December 10, 2015 January 8, 2002 Brustein & Manasevit, PLLC All rights reserved. 4 2

3 Dissatisfaction with NCLB began early Originally touted by then Secretary of Education Margaret Spellings as 99.9 percent pure like Ivory Soap But concerns about: 2014 deadlines for proficiency Teaching to the test Unfunded mandates? Top down, one size fits all requirements Brustein & Manasevit, PLLC All rights reserved. 5 Early attempts to change the law 2007 Reauthorization Effort Education and Labor Committee Chairman George Miller s (D CA) discussion draft Discussions with Senate Committee Chairman Ted Kennedy (D MA) Negative feedback from stakeholders indicates legislation is not ready for primetime Miller and Kennedy prepare for a brief pause over election season Brustein & Manasevit, PLLC All rights reserved. 6 3

4 Intervening Events Short pause stretched out over several years, which included two important changes in political landscape: Election of President Barack Obama and by extension, appointment of new Secretary of Education Arne Duncan Brustein & Manasevit, PLLC All rights reserved. 7 Intervening Events Passage of the Affordable Care Act (ObamaCare) Proved hugely controversial and had both political and procedural repercussions Politically: Democrats lost 63 seats and majority in House in 2010 election Many House seats now filled by antigovernment conservative Republicans Lost 6 seats in Senate (had lost supermajority in 2009, but retained narrow majority) Procedurally: Objections to massive wholesale legislation Calls to return to regular order in House and Senate Brustein & Manasevit, PLLC All rights reserved. 8 4

5 ESEA Waivers Between April and June 2011, three States (Montana, Idaho, South Dakota) announced intention to ignore upcoming student achievement targets ED threatens to take enforcement action States speak out on unrealistic targets, CCSSO announces intention to seek waivers under waiver provisions in ESEA ED compromises with some States (rewrites targets) Brustein & Manasevit, PLLC All rights reserved. 9 ESEA Waivers In June 2011, ED announces large scale waivers of ESEA requirements, including: deadline for proficiency Requirement to offer choice/ses More flexibility in implementing LEA and school improvement More funding flexibility Brustein & Manasevit, PLLC All rights reserved. 10 5

6 ESEA Waivers In return, States must adopt four principles for reform College and career ready standards E.g., Common core Aligned with assessments that measure student growth New school accountability systems With ambitious but achievable AMOs Intervene in bottom 5% and 10% of schools (priority and focus schools) New teacher and principal evaluations Used to inform personnel decisions Multiple measures, including student achievement Reducing duplication and unnecessary burden Brustein & Manasevit, PLLC All rights reserved. 11 Good: push Congress toward reauthorization Waivers won t work for every State Bad: may take pressure off Congress Temporary solution buys time BUT take attention off current reform efforts ESEA Waivers Bad: create conflict with Congress ED circumventing legislative process with legally questionable waivers????: Work for administration priorities Encourage States to adopt and implement administration priorities and policies Frame policy debate on reauthorization Large number of States adopting policy priorities for waivers mean they re the path of least resistance Brustein & Manasevit, PLLC All rights reserved. 12 6

7 Early attempts to change the law, Part Reauthorization Effort John Kline (R MN) is newly appointed Chairman of newly renamed House Committee on Education and the Workforce Says he will pass a reauthorization piecemeal Introduces 3 bills, plans for 2 more Obstacles: Relative inexperience of new members Upcoming Presidential election Kline: there is a little bit of urgency to move, but I m not going to rush this and do it wrong Brustein & Manasevit, PLLC All rights reserved. 13 Early attempts to change the law, Part Reauthorization Effort, part 2. Tom Harkin (D IA) draft legislation Substantial similarities to ESEA waivers Focus on bottom 5% of schools (priority schools) Required teacher and principal evaluations which include student achievement BUT widely panned Democrats say it would allow States to push away from accountability Republicans say too close to NCLB, waivers Advocacy groups get together to oppose legislation NAACP, Chamber of Commerce, DFER, La Raza, etc.. Passed out of Committee, but not without problems Brustein & Manasevit, PLLC All rights reserved. 14 7

8 Early indications of political problems Senator Rand Paul (R KY) disrupts the Harkin bill markup Filed 74 amendments to the bill Objected to markup on the basis of the twohour rule Forced Harkin to end markup after two hours Procedural objections: Bill is too big Moving too fast (not enough hearings or solicitation of feedback) Political objections: Too big a federal role in education Doesn t do enough to walk back NCLB Brustein & Manasevit, PLLC All rights reserved. 15 Intervening events, Part 2 Fiscal issues come to a head Continued problems negotiating debt ceiling deal in divided Congress Debt ceiling deal created Congressional Debt Supercommittee Bipartisan, bicameral committee charged with cutting $1.5 trillion from federal budget Missed deadline, triggering automatic cuts sequestration Fiscal and budgetary issues will continue to dog Congress over coming years Brustein & Manasevit, PLLC All rights reserved. 16 8

9 Ramping up to Reauthorization Harkin s 2013 proposal: Strengthening America s Schools Act Based on waivers, 2011 bill (plus some lessons learned) Require States to adopt new standards, assessments, performance targets Keep requirement to intervene in bottom 5% and 10% (priority and focus schools) Teacher and principal evaluations using student achievement data Set n size at 15 students, requires crosstabulation of data to address concerns about accountability Brustein & Manasevit, PLLC All rights reserved. 17 Ramping up to Reauthorization Kline s 2013 proposal: the Student Success Act Gives up piecemeal strategy one bill Eliminates AYP, HQT Limits federal role Consolidates grant programs Requires teacher/principal evaluations with student achievement as a significant factor Trying to move closer to compromise with Senate Brustein & Manasevit, PLLC All rights reserved. 18 9

10 Ramping up to Reauthorization Student Success Act on the House Floor Significant concern about nature of bill not far enough from NCLB, waivers Amendment to eliminate teacher/principal evaluations Amendment to include Title I Portability option adopted by voice vote Narrowly passed Brustein & Manasevit, PLLC All rights reserved. 19 Meanwhile, in the minority Alexander bill Lamar Alexander (R TN) is ranking member of Senate Committee on Health, Education, Labor, and Pensions Drafted own bill during House/Senate debate Would eliminate AYP, HQT Allow Title I portability No teacher/principal evaluations, no new accountability requirements kissing cousin of Kline bill, per Alexander Brustein & Manasevit, PLLC All rights reserved

11 and at the Department of Education ESEA waivers continued By end of 2013, 42 States and DC had waivers Also: 9 California CORE districts But needed extensions, additional relief, leading to: Waiver renewals high risk status for come double testing waivers Accountability pauses ( determination flexibility ) Brustein & Manasevit, PLLC All rights reserved. 21 The Final Stretch Brustein & Manasevit, PLLC All rights reserved

12 Musical Chairs Republicans take Senate in 2014 election Alexander becomes Chairman of Senate HELP Committee Harkin retires Senator Patty Murray (D WA) becomes Ranking Member of Senate Committee House Ranking Member George Miller (D CA) retires Rep. Bobby Scott (D VA) becomes House Committee Ranking Member Brustein & Manasevit, PLLC All rights reserved. 23 The Alexander Bill Said he would work with Ranking Member Murray to draft new legislation But released a draft bill for public comment in January only hours after sharing with Murray s staff Drew opposition from Murray, Senate Democrats, White House Brustein & Manasevit, PLLC All rights reserved

13 The Alexander Bill, Take 2 The Every Child Achieves Act Based largely on 2013 Alexander bill, but presented as a compromise Does away with AYP, HQT Turns much more decision making authority over to States No Title I Portability (learning from Democratic opposition) Drastically limits Secretarial authority 1% cap on alternate assessments New reporting on military connected students Tweaks rank and serve threshold for high schools Elimination/consolidations of many smaller grant programs (many added back in Committee) Passes unanimously out of Committee in April 2015 Brustein & Manasevit, PLLC All rights reserved. 25 The Alexander Bill, Take 2 Relatively uncontroversial, but several amendments debated which could prove problematic: Title I formula Title I Portability Final passage: Brustein & Manasevit, PLLC All rights reserved

14 The Kline Bill Student Success Act Eliminates AYP, HQT, Maintenance of Effort Explicit limitations on Secretary s authority Changes to Title II formula Increased school improvement set aside Title I portability Eliminates NCLB s title III, moves accountability into Title I Consolidates many Title IV smaller grants into larger flexible grants NO teacher/principal evaluations Brustein & Manasevit, PLLC All rights reserved. 27 The Kline Bill Objections from Democrats Did not go far enough to protect vulnerable students Title I portability White House issues veto threat, list of potential impact on districts Objections from Republicans Not enough input from rank and file Does not go far enough to: Distance from NCLB Reduce annual testing requirements Provide flexibility for States and districts Want Title I portability extended to private schools Brustein & Manasevit, PLLC All rights reserved

15 The Kline Bill Schedule for House floor vote in February 2015 BUT was also the same day as controversial vote on Homeland Security appropriations bill Kline and House Speaker John Boehner (R OH) using up political capital to get votes on this Kline and Boehner tried to clear way for passage by limiting amendments BUT raised more objections about lack of regular order Legislation was pulled from consideration before vote on final passage Finally brought back in July for a vote, passed with only 218 votes. Brustein & Manasevit, PLLC All rights reserved. 29 In order to get a bill signed into law, same text has to pass both the House and the Senate This means compromising on key issues for both sides In the Balance But can a compromise bill pass? Senate Democrats concerned about accountability, Title I Portability Republicans want more flexibility, less federal involvement Big problem is House: either has to convince enough conservatives (who voted against earlier bill) to support a compromise, or Pick up votes from Democrats and risk violating Hastert rule Brustein & Manasevit, PLLC All rights reserved

16 Intervening Events, Part 3 Boehner s Retreat Existing tensions between House Speaker John Boehner (R OH) and conservative Republicans come to a head in September 2015 Boehner resigns effective at the end of October Complicated and controversial search for new Speaker leads to disarray among Republicans Agreement in new House Speaker Paul Ryan, elected at the end of October 2015 Boehner s retirement means possible loss of momentum? Brustein & Manasevit, PLLC All rights reserved. 31 A way forward? Staff worked to reconcile House and Senate proposals over summer and fall, with some intervention and bargaining between members Key issues: accountability and circumstances for intervention; limitation of Secretary s powers; inclusion of new early childhood grant Administration withholds public comment Alexander, Kline convince Ryan to put the legislation on the floor if they can get it through conference Conferees appointed in mid November, pass framework unanimously out of Committee after two short days Brustein & Manasevit, PLLC All rights reserved

17 A way forward? ECAA + SSA ESSA Brustein & Manasevit, PLLC All rights reserved. 33 Last minute jitters Administration s late concerns about accountability and optouts Heritage Action funds lists ESSA as a scorecard vote Brustein & Manasevit, PLLC All rights reserved

18 Final passage Passes House Passes Senate Signed into law December 10 th, 2015 Brustein & Manasevit, PLLC All rights reserved. 35 A Brief Overview of ESSA Brustein & Manasevit, PLLC All rights reserved

19 Basic Structure Looks a lot like No Child Left Behind: States choose standards and assessments, work towards goals Student achievement is reported out by subgroup Schools and districts are held accountable for subgroup performance Funding flows from ED to States to districts to schools Maintains major formula grant funding streams (and many competitive programs too) Brustein & Manasevit, PLLC All rights reserved. 37 Key Changes States now in the driver s seat Much more authority to make decisions, choose standards and assessments, goals, and means of accountability States also responsible for enforcing many requirements The big acronyms have been eliminated No more AYP, HQT, or SES New limitations on Secretarial authority Consolidates/eliminates a number of smaller grant programs Two new set asides in Title I Mandatory 7% School Improvement set aside Optional 3% Direct Student Services Set aside Per pupil funding pilot 50 districts, with safeguards for low income schools Brustein & Manasevit, PLLC All rights reserved

20 New Accountability Systems Evaluate schools based on: Academic achievement (most weight here) For K 8, growth or other indicator For high schools, graduation rates At least one valid, reliable, comparable, and Statewide indicator of school quality Other factors as determined by the State Brustein & Manasevit, PLLC All rights reserved. 39 Interventions Identify for comprehensive intervention: Title I schools in the bottom 5% according to the State s performance metric All public high schools with graduation rates of less than 2/3 Title I schools with persistently lowperforming subgroups Identify for targeted intervention: Schools with subgroups which, on their own, would be identified as lowest performing 5% Brustein & Manasevit, PLLC All rights reserved

21 New Title IV Block Grant New block grant type program Formula granted to States based on share of Title IA State may reserve up to 1% for administration, 4% for State activities Subgranted to LEAs based on share of Title IA LEA may spend up to 2% on administration LEAs must spend: At least 20% of funds on at least one wellrounded educational opportunities activity At least 20% on at least on safe and healthy students activity Some portion funds to support effective use of technology (no more than 15% on technology infrastructure) Brustein & Manasevit, PLLC All rights reserved. 41 Secretarial Prohibitions Strictly prohibits Secretary from doing anything to: Require/incentivize certain standards or assessments, instructional content, programs of instruction, curricula, etc.. Deny approval of State plans without good reason Deny approval of waivers without good reason Set new criteria through regulation or requiring adoption of certain policies in exchange for flexibility or approval of State plans Specify additional pieces of accountability system Endorse a specific curriculum or develop a federally sponsored assessment Brustein & Manasevit, PLLC All rights reserved

22 What s Next? Brustein & Manasevit, PLLC All rights reserved. 43 Timeline for Implementation ESEA waivers terminate August 1, 2016 New law effective for non competitive formula grants (at federal level) on July 1, 2016 per ESSA, BUT: Omnibus appropriations bill passed December 18 th says: SEC Notwithstanding section 5(b) of the Every Student Succeeds Act, funds provided in this Act for non competitive formula grant programs authorized by the ESEA for use during academic year shall be administered in accordance with the ESEA as in effect on the day before the date of enactment of the Every Student Succeeds Act. So.NCLB in effect for another year! Brustein & Manasevit, PLLC All rights reserved

23 Timeline for Implementation New State accountability systems (and related interventions) take effect in school year per law Likely modified by omnibus State accountability systems effective until August 1, 2016 (but continue to support priority/focus schools and those in improvement) ED guidance: waiver States may choose to either (1) pause identification of school, or (2) identify a new group of schools for improvement Brustein & Manasevit, PLLC All rights reserved. 45 Timeline for Implementation New law effective for competitive grants (at federal level) on October 1, 2016 Program transition: Programs not substantively similar to something else in this bill will continue to receive funds until September 30, 2016 Programs no longer authorized but substantively similar to programs in the bill may finish out multi year grants in accordance with grant terms Programs still authorized as in previous law may use funds awarded prior to enactment under those terms, then transition to new requirements Changes to Impact Aid effective in FY 2017 All other changes effective upon enactment (December 10 th, 2015) Brustein & Manasevit, PLLC All rights reserved

24 ED held public meetings on 1/11 (DC) and 1/19 (Los Angeles), published Federal Register notice Soliciting input on where regulations are needed Regulations Negotiated rulemaking required on several issues Including Supplement not Supplant, assessments, Late March, early April If negotiated rulemaking process fails, new language allows Congress advanced review and comment period for regulations ED drafts instead Other regulations to be issued at some point in 2016 Dear Colleague guidance issued on rolling basis Brustein & Manasevit, PLLC All rights reserved. 47 Studies Law requires Institute for Education Sciences (IES) to conduct a number of studies: Title I formula Must study the effectiveness of the four Title I formulas and consider the impact of number and percentage weighting Must enumerate impact on 12 types of locales as classified by NCES 18 month timeline Sample size ( n size ) Must publish and disseminate a report on best practices for determining subgroup size 90 day timeline Brustein & Manasevit, PLLC All rights reserved

25 ESSA Oversight Lamar Alexander (R TN) told C SPAN he expects the federal role to be "very different" under ESSA. HELP Committee reportedly planning at least three oversight hearings on ESSA regulation in the coming year. House Education and Workforce Committee held first oversight hearing on 2/10 Rokita: "Congress promised to restore state and local control over K 12 education, and now it's our job to ensure that promise is kept." Brustein & Manasevit, PLLC All rights reserved. 49 Upcoming Webinars ESSA Assessments and Accountability: What It s All About! March 17, 2016 at 1:00 pm Eastern How ESSA Changes the Title I Fiscal Rules. April 14, 2016 at 1:00 pm Eastern ESSA Title II Allowability. May 26, 2016 at 1:00 pm Eastern Equitable Services Requirements Under ESSA June 23, 2016 at 1:00 pm Eastern ESSA s Changes to Title III, A Program July 21, 2016 at 1:00 pm Eastern The New ESSA Title IV Programs (and 21st CCLC Changes) August 25, 2016 at 1:00 pm Eastern More information (and registration) at Brustein & Manasevit, PLLC All rights reserved

26 SAVE THE DATE!!! BRUSTEIN & MANASEVIT, PLLC SPRING FORUM 2016 May 4 6, 2016 Sheraton Philadelphia Downtown Hotel Philadelphia, PA For more information visit Registration Now Open! Brustein & Manasevit, PLLC All rights reserved. 51 Questions? Brustein & Manasevit, PLLC All rights reserved

27 Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice. Attendance at the presentation or later review of these printed materials does not create an attorney client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. Brustein & Manasevit, PLLC All rights reserved