President Barack Obama after signing on the new rules of US Education that the Every Student Succeeds Act at the White House in 2015. The bipartisan support for the measure later disappeared. Credit Doug Mills/The New York Times
With all the attention paid to President Trump’s lightning-rod secretary of education, Betsy DeVos, and her advocacy for private school vouchers, little public notice has been paid to the action on education in Congress — where lawmakers have broader power than Ms. DeVos to make changes to the nation’s school system.
Now, Congress has done exactly that, voting to repeal crucial regulations associated with the Every Student Succeeds Act, one of President Barack Obama’s final legislative achievements.
When Mr. Obama signed the act in December 2015, many Democrats and Republicans alike celebrated the supposed end of what they saw as an era of federal overreach into local schools. The measure, known as ESSA, took a more collaborative approach than its predecessor, No Child Left Behind.
Many critics viewed No Child, passed under President George W. Bush, as well as Mr. Obama’s first-term education policies, as punitive. The policies pushed for test scores to be used to remove underperforming teachers and to shut down struggling schools. They were also unpopular because they led to an explosion in the number of tests students took each year.
Under the Every Student Succeeds Act, children still have to take standardized tests in math, reading, and science, and schools still need to report on the progress of at-risk groups, like disabled students, nonwhite students and those learning English. But fewer consequences are now tied to low test scores and more emphasis is placed on holding schools accountable for providing access to advanced classes and for reducing student suspension rates. In addition, states are now able to come up with their own plans for how to intervene in failing schools.
Mr. Obama called the bill a bipartisan “Christmas miracle.” The National Council of La Raza, a Latino rights organization, gave ESSA’s two Senate co-sponsors, Patty Murray of Washington, a Democrat, and Lamar Alexander of Tennessee, a Republican, an award for their work on behalf of students learning English. The two appeared together to accept the honor, each praising the other’s collaboration.
It took less than a year for that bipartisan consensus to fall apart.
It is customary for federal agencies to issue detailed regulations on how new laws should be put into effect, and Mr. Obama’s Department of Education did so in November. But some lawmakers from both parties saw the regulations as unusually aggressive and far-reaching and said they could subvert ESSA’s intent of re-establishing local control over education and decreasing the emphasis on testing.
Last month, the House of Representatives overturned a broad swath of the rules using the Congressional Review Act, which allows lawmakers to spike federal regulations. The Senate passed a similar resolution on Thursday, and President Trump has indicated that he will sign it. That would leave ESSA on the books, but Ms. DeVos would have more flexibility in how to apply it.
The Obama regulations pushed states to weight student achievement measures, such as test scores and graduation rates, more heavily than other factors in labeling schools as underperforming. The regulations also required schools to provide parents and the public with a more detailed annual report card on schoolwide student achievement data and other indicators of success.
Among the most contentious of the Obama rules was one that strengthened a provision in the law requiring schools to test at least 95 percent of their students.
There were some good reasons for such a policy. To avoid the sanctions that come with low scores, schools have sometimes pressured or forced low-performing students to stay home on testing days. But conservatives said the 95 percent rule was excessive federal intervention, while some on the left said it prevented parents and students from “opting out” of standardized tests — a popular protest tactic.
“The regulations were an overreach,” said Robert Schaeffer, the public education director of FairTest, a group that fights standardized testing. But, he said, “the total repeal is also an overreach,” because it targets civil rights regulations as well as testing rules.
Nine percent of American public school students are not native English speakers and the regulations required states and schools to track the achievement of this group in more nuanced ways. Instead of looking at all English-language learners together, states were asked to break out the performance of the highest-risk groups, like recent immigrants or those who arrive in the United States behind grade level in their native language. Schools where such students struggle would have been subject to state intervention.
The National Council of La Raza was part of a coalition of civil rights and business groups that supported the Obama regulations. Separating out different groups of English language learners “is a plus for states,” said Lorén Trull, a senior policy adviser for La Raza. “You don’t want it to look like you’re serving all English language-learners poorly when some you are serving very well.”
Beginning in the 1980s, moderate Democrats and moderate Republicans tended to agree that the federal government ought to hold local schools to tough standards and monitor them closely to make sure they were shrinking achievement gaps between different groups of students. The ESSA repeal effort shows that center no longer holds. On the Senate floor Wednesday, Mr. Alexander said a regulatory repeal would “restore to states, to classroom teachers and to school boards decisions about what to do about the children.”
Democrats who favored the Obama rules sought to portray the repeal effort as an attempt to disrupt the normal regulatory process and give the Trump administration more power.
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“I think we all know what’s going on here,” said Senator Elizabeth Warren of Massachusetts. “Betsy DeVos is the new secretary of education. Congressional Republicans have decided that they want to hand over the keys to her with no restrictions whatsoever.”
Ms. DeVos has said little about ESSA. But with the repeal, her department can now issue new guidance to states, most likely weakening the accountability measures that were a priority for the previous administration.
The repeal throws a curveball at state policy makers, whose ESSA implementation plans are due at the Department of Education in mere weeks. “The states are planning and doing stuff,” said Chris Minnich, executive director of the Council of Chief State School Officers, a bipartisan group that represents state education secretaries. “They want clarity on what they need to submit.”
Many states had already done the work needed to comply with the Obama administration’s rules. They are unlikely to start the process over this year.
“This is an inside-D.C. fight,” Mr. Minnich said. “But this law will be successful or not depending on how states move forward.”