Legislation
Alexander Unveils New ESEA Reauthorization Bill
U.S. Senator Lamar Alexander (R-TN)

Early this week, Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) released a draft of a bill that would reauthorize the Elementary and Secondary Education Act (ESEA).  The bill, tentatively titled the “Every Child Ready for College or Career Act of 2015,” has been released for public comment on the HELP committee’s website (the bill’s text is available here), but has not yet been formally introduced.
 
The Alexander bill is very similar to legislation the Senator introduced in 2013.  Overall, it would significantly scale back both the scope and the extent of federal authority over States and school districts.  Adequate Yearly Progress (AYP) requirements (as well as Annual Measurable Achievement Objectives for English Language Learners) would be eliminated under the proposal.  Instead, States would be responsible for establishing a single Statewide accountability system which differentiates between schools based on student achievement, and would determine specific interventions for identified schools.  The bill does not list specific strategies or requirements that must be used for these interventions.
 
As under current law, States would be required to adopt “challenging” academic content and achievement standards in reading/language arts, math, and science which allow graduates to enter State college or career and technical education programs without remediation (alternate achievement standards could be drafted for students with the most significant cognitive disabilities).  States would have to create assessments aligned with those standards, and would have to disaggregate achievement data by the same subgroups as under current law.  The Secretary of Education would be explicitly prohibited from mandating, directing, controlling, coercing, or exercising any direction or supervision over any standards.
 
The discussion draft provides two options for assessments, which will be the subject of a hearing to be held by the HELP Committee next Wednesday.  Option 1 would require States to adopt assessment systems, but would allow them to choose between the current assessment frequency (yearly in grades 3 through 8 and once in high school) or grade-span assessments, or a combination of the two.  States could use performance-based, formative assessments, summative scores from multiple assessments, or any other system that the State considers appropriate.  By contrast, Option 2 would maintain current law regarding the frequency and type of assessments.  Under either system, local educational agencies (LEAs) would be permitted to administer their own assessments so long as they were valid and reliable, aligned with State standards and approved by the state.  Neither option would require – or allow the Secretary of Education to require – that student test scores be used to evaluate teachers.  Highly Qualified Teacher (HQT) requirements would be eliminated, but teachers would have to meet State certification and licensure requirements.
 
Alexander’s proposal also includes language that would allow States to set up systems under which Title I dollars could follow low-income students to the public school of their choice.  This would allow Title I-A dollars to be allocated to LEAs, and then schools, strictly on the basis of the number of children living in poverty within the attendance boundaries.  This language was in the 2013 version of Alexander’s proposal, and has been a big priority for conservative, though it has proven controversial among Democrats and some advocates.
 
School Improvement Grants, 21st Century Community Learning Centers, School Counseling, Physical Education, and several other grant programs would be consolidated into larger school climate funding streams, awarded on a formula basis to States and LEAs which could be used for a number of purposes covered under the current programs.
 
Charter school grant programs would be restructured under the bill’s language, which incorporates legislation that passed the House of Representatives in the last Congress.  Of the funds made available for charter schools, 12.5% would go to help charters access and customize school facilities, not less than 25% would go for national activities, and all remaining funds would support grants to States, public chartering agencies, LEAs, and charter management organizations for charter school start-ups, expansions and replications.
 
For most portions of ESEA, appropriations would be frozen at approximately fiscal year (FY) 2015 levels through FY 2021.  Title I, Part A of ESEA, which would be authorized to receive an additional $500 million, charter schools could receive an additional $47 million, and the Teacher Incentive Fund would be authorized for an additional $65 million and permanently authorized as part of ESEA.  But these authorizations are only the cap on funding, and depending on the party in charge the actual dollars appropriated could be significantly less.  States would be permitted to reserve up to eight percent of their Title I, Part A allocations to conduct State-level activities.  Maintenance of Effort provisions would be eliminated for programs other than the Education Finance Inventive Grants, but Supplement not Supplant requirements would remain in place throughout the bill, but are modified by language which says that no district could be required to identify individual costs or provide specific services through a particular instructional method or setting in order to demonstrate compliance.
 
While Alexander has committed to passing the bill through the HELP Committee in the coming months (a first hearing on the proposal is scheduled for next Wednesday), some in Washington have expressed concerns about the content.  Secretary of Education Arne Duncan said in a statement “I appreciate that Sen. Alexander plans to discuss his draft with his colleagues and to solicit public feedback, but I also am concerned that his proposal makes optional far too much of what the law needs to ensure the promise of its title… Congress must not abdicate its responsibility to help all children succeed, must protect our most vulnerable children, and must build on what we've learned about supporting bold State and local innovation."
 
The National Education Association (NEA) was cautiously optimistic, as President Mary Kusler told reporters, “We are pleased to see measures that increase the flexibility of educators and their districts to meet the needs of their individual students, especially those with the greatest needs.”
 
A spokesperson for the Education Trust expressed some caution about scaling back federal authority, saying that while “there  has to be a right-sizing of the federal role,” a reauthorized ESEA also should not “swing in the opposite direction and not allow the secretary of education to do anything.”
 
Alexander’s Democratic counterpart, Senator Patty Murray (D-WA), has also proven tough to win over thus far.  Murray will be a critical ally in getting Democratic votes – and the President’s support – for a final bill, but she was not enthusiastic about the Alexander proposal.  “If we don’t hold States accountable, the victims will invariably be the kids from poor neighborhoods, children of color, and students with disabilities,” Murray said. “These are the students who, too often, fall through the cracks.  And that’s just not fair.”
 
Chairman Alexander and his staff have asked for input from the public on his discussion draft by Monday, February 2 via the e-mail address FixingNCLB@help.senate.gov.  Comments will be shared with all members of the Senate HELP Committee. 
 
Resources:
Lauren Camera and Alyson Klein, “Sen. Alexander’s ESEA Draft Offers Two Options on Testing,” Education Week: Politics K-12, January 13, 2015.
Lauren Camera, “Democrats Voice Concerns, Stakeholders Have Mixed Reactions to NCLB Draft,” Education Week: Politics K-12, January 14, 2015
Lyndsey Layton, “AFT Backs Annual Testing, with an Asterisk,” The Washington Post, January 14, 2015.
Lyndsey Layton, “Senators Set Stage for Debate about Federal Education Law,” The Washington Post, January 13, 2015.

About the Author

Julia Martin is an attorney with the Washington, DC law firm of Brustein & Manasevit, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Title I Association.