Unlimited power is … a bad and dangerous thing; human beings are not competent to exercise it with discretion, only God alone can be omnipotent … no power on earth is so worthy of honor for itself; or for reverential obedience to the rights which it represents that I would consent to admit its uncontrolled and all-predominant authority.
In my opinion the main evil of the present democratic institutions of the United States does not arise … from their weakness but from their overpowering strength; and I am not so much alarmed at the excessive liberty which reigns in that country as at the very inadequate securities which exist against tyranny.
Alexis de Tocqueville, Democracy in America.
A year ago the Congress passed the Every Student Succeeds Act (ESSA), the successor to the much reviled No Child Left Behind (NCLB) law. The new law was the result of a few years of behind the scenes negotiating, the bill was bipartisan with Senators Lamar Alexander (R) and Patty Murray (D) leading the way.
While the law still requires annual grades 3-8 testing and the public reporting of the results states are given wide discretion in the design of accountability metrics. States are currently deeply engaged in drafting plans that must be submitted to the feds by September, 2017. Some states are working with Linda Darling-Hammond at the Learning Policy Institute, others with Michael McGee at Chiefs for Change (See advocacy here) or the Council of State School Officers (See CCSSO guide here). States are grappling with designing accountability plans: how you measure and report student outcomes? Stick with the current pen and pencil, or computer-based testing, move to performance tasks, portfolios or other types of “authentic” assessments, and, as the law requires, are these new tools evidence-based in their reliability and validity?
The law itself, hundreds of pages of dense legal jargon must be reduced to regulations and the process is lengthy and tedious. The negotiated rule-making process, the posting of draft regulations, a lengthy public comment period and the final release of the regulations within the last month.
How will the new administration, the new Secretary of Education, implement the rules, and, can she change the regulations?
Betsy DeVoss has been one of the leading proponents of choice in the nation. Ideally choice means that each parent would be provided with a voucher, or coupon, or whatever term you use that is equal to the cost of education in a state and the parent could present the voucher to any school: public, charter, private or religious. Education; however, is a state function; over 90% of funding for schools is generated through local property taxes or state revenues, the feds on provide Title I dollars and other federal grants. DeVoss cannot impose vouchers; although she can hang the bait of increased dollars for those who take the bait.
Janelle Scott, a professor at the University of California, Berkeley, in a recent peer-reviewed article challenges the assertion that choice produces better outcomes. Read the essay here.
Even though ESSA is the law of the land and the regulations have been established the Secretary still interprets the law. The Secretary may issue “Dear Colleague” letters clarifying elements within the law and regulations (See examples of Dear Colleague letters here). “Dear Colleague” letters undermine the intent of the law or regulation.
How can the Secretary influence the distribution of federal education dollars?
The largest pot of federal dollars are Title I funds based on poverty metrics, distributed to states, school districts and schools. (See a detailed description of Title I here). Charter and religious schools also receive Title I funding under federal statutes. The formula for the allocation of federal dollars is complex and the Secretary plays a role; although, the states play the major role in determining cut scores for eligibility. For example: how do you measure poverty? Free and reduced lunch forms? federal census family income data? Should you concentrate the dollars: meaning should fewer schools receive more dollars? These are debates that have been ongoing for years.
DeVoss will attempt to both reward charter and religious schools and encourage vouchers. Let us not forget that Arne Duncan offered competitive grants under Race to the Top to encourage Obama-Duncan policies, example, charter schools, Common Core, teacher evaluations plans, etc.
Will the Secretary decide how ESSA is applied to opt out schools?
The answer is yes, if she wants to play a major role. ESSA, and its predecessor required a 95% participation rate on the required standardized grades 3-8 tests. The purpose was to discourage/prevent schools from conveniently excusing kids who were likely to do poorly on the test; no one envisioned the opt out movement. Some states specifically prohibit. or specifically allow parent opt outs whiles others are completely silent. (Read description here). In January, 2016 the feds sent a letter to all states setting forth potential actions against states with low participation rates,
In addition, an SEA has a range of other enforcement actions at its disposal with respect to noncompliance by an LEA, including placing a condition on an LEA’s Title I, Part A grant or withholding an LEA’s Title I, Part A funds (see, e.g., section 440 of the General Education Provisions Act). If a State with participation rates below 95% in the 2014−2015 school year fails to assess at least 95% of its students on the statewide assessment in the 2015 − 2016 school year, ED will take one or more of the following actions: (1) withhold Title I , Part A State administrative funds ; (2) place the State’s Title I , Part A grant on high-risk status and direct the State to use a portion of its Title I State administrative funds to address low participation rates; or (3) withhold or redirect Title V I State assessment funds.
New York State, by far, has the largest number of schools/parents with low participation rates; there are a number of other states, i. e., Illinois, Maine, Connecticut, California, Colorado Idaho, North Carolina Delaware Wisconsin Washington and Rhode Island.
The law is clear, the feds can reduce Title 1 funding to states with low participation rates; to complicate many of the opt out school do not receive Title 1 funding, or receive relatively little Title 1 funding. Does the state allow Title 1 students to receive fewer dollars or does the state transfer funds form opt out to Title 1 schools?
I suspect the choice forces will do everything possible to fracture public education. Deepen the moat, sharpen the pikes, the next few years will be parry and thrust.