DOE’s Proposed School Accountability Regulations Spark Criticism

Published July 13, 2016

The U.S. Department of Education (DOE) has published a draft version of accountability regulations under the Every Student Succeeds Act (ESSA).

The proposed regulations deal with accountability, data reporting, and state plan provisions slated for the implementation of ESSA, which goes into full effect at the start of the 2017–18 school year.

DOE said in a statement the regulations, released in May, “replace the narrow, one-size-fits-all approach that defined ESSA’s predecessor, No Child Left Behind (NCLB), with new flexibility for states and districts; a more holistic approach to measuring a quality education that will help prepare all students for success; and strong protections to ensure the progress of all students.”

DOE wrote on its blog it was “interested in hearing even more from stakeholders,” and it invited the public to comment within 60 days of the publication of the regulations.

Rep. John Kline (R-MN) expressed concern the new rules do nothing to strengthen local control of education and may end up doing the opposite. In a statement to the press, Kline said he was “deeply concerned the [DOE] is trying to take us back to the days when Washington[,DC] dictated national education policy.”

Sen. Lamar Alexander (R-TN) released a statement saying he plans to review the proposed regulations “to make sure that [they reflect] the decision of Congress last year to reverse the trend toward a national school board and restore responsibility to states, school districts, and teachers to design their own accountability systems.”

Alexander says he would introduce a resolution to overturn the rules “if the final regulation does not implement the law the way Congress wrote it.”

Persistent Federal Control

Michael Petrilli, president of the Thomas B. Fordham Institute, says U.S. Secretary of Education John King is not committed to implementing the flexibility Congress intended to grant to the states in passing ESSA.  

“The congressional intent of ESSA is quite clear: to hand authority over key education policy decisions back to the states,” Petrilli said. “Unfortunately, Secretary of Education John King doesn’t seem to have gotten the memo. Perhaps it’s not surprising, but it’s still deeply disappointing that he is refusing to implement congressional compromises in good faith.”

Testing Whiplash

The proposed regulations require states to test at least 95 percent of their students, a rule not mandated by ESSA. Schools that don’t reach the 95 percent level risk having their ranking lowered or being labeled a “targeted support” school.

Dr. Karen Effrem, a pediatrician, researcher, and president of Education Liberty Watch, says the current regimen of contradictory testing rules creates a “veneer of states’ rights.”

“On the one hand, 95 percent of a state’s public school students are required to participate in the mostly Common Core-aligned tests that strike right at the heart of the opt-out movement, but then the law says that states are allowed to make their own opt-out laws, giving that veneer of states’ rights,” Effrem said. “Then, whipsawing back to federal control again, the states are still required to punish districts in some way if too many students opt out. The U.S. DOE then helpfully provides a list of possible punishments.”

Alternative Criteria Criticized

The new regulations allow states to use indicators other than test results for state accountability plans, but they dictate academic indicators must be “substantially weighted” above school quality indicators, such as “student engagement” and “school climate.”

“Congress clearly opened the door to allowing states to use non-test-score indicators in their accountability systems,” Petrilli said. “Secretary King has closed the door significantly.”

Effrem says these types of social and emotional indicators violate students’ privacy.

“The new law says that student engagement and school climate may be used as accountability factors, but this leads to invasive data mining on grit and perseverance,” Effrem said. “Even if that type of research weren’t creepy, invasive, and unconstitutional, the experts in the field admit that this type of data is subjective, unhelpful, and should definitely not be used in accountability schemes.”

‘A Looming Disaster’

Petrilli says DOE’s new ESSA rules have a rough road ahead of them.

“I do think we’re going to see some states push back on the executive branch overreach apparent in the rulemaking process,” said Petrilli. 

Effrem says several factors may make the proposed regulations a “disaster.”

“We have terrible and invasive tests with a punitive, ineffective, unconstitutional, and federally mandated accountability system that has now been made worse by ESSA with all of these Alice-in-Wonderland rules and proposed regulations based on a very byzantine law with no statistical standard, multiple different undecipherable factors, and Orwellian psychological data mining,” Effrem said. “It’s a looming disaster.”

Jenni White ([email protected]writes from Oklahoma City, Oklahoma.