With a full room of spectators, the Every Student Succeeds Act (ESSA) negotiated rulemaking committee resumed negotiations Tuesday for their final day at the U.S. Department of Education (ED), immediately jumping into substantive discussions regarding the Department’s proposed supplant, not supplant draft regulations.
Did the committee reach consensus? The bottom line: Several negotiators expressed dissent on the Department’s proposed language, and the negotiated rulemaking committee was unable to achieve consensus on the supplement, not supplant regulations submitted by the Department. However, after discussing each of these issues and considering several amendments (details below), the negotiated rulemaking committee members reached final consensus on all of the identified issues included in the proposed assessment regulations.
What’s next? The Department of Education is bound to the agreement on the assessment regulations. They will move forward and promulgate formal regulations based on the negotiations that occurred with the committee. The Department will proceed in issuing supplement not supplant regulations. They are not bound by negotiations with the committee. But, the failure to reach consensus triggers the specific congressional oversight provision in ESSA. The Department noted that regulations and transcripts of the negotiated rulemaking meetings would be posted on the Department’s website as soon as possible.
Below are highlights from today’s discussion. View the meeting materials for this third session.
Supplement, Not Supplant, Issue Paper: Previous negotiations over the terms of the proposed regulations resulted in a contentious discussion, and the Department offered amendments to the regulations for the negotiators to consider. The Department maintained the same threshold for demonstrative general supplement, not supplant compliance. The proposed regulations still require a district to demonstrate that “the methodology it uses to allocate State and local funds to each Title I school ensures that the school receives all of the State and local funds it would otherwise receive if it were not a Title I school.”
The Department highlighted the following changes to the initial regulations discussed by the committee at the previous negotiated rulemaking meeting:
- In terms of compliance, ED added language clarifying that the state department of education, (the state educational agency) must annually require a school district to demonstrate compliance, but may do so in a “time and in such manner,” as determined by the state.
- With regard to compliance, the Department included an example of the methodology in the proposed regulations: “Such as a methodology that allocates resources including staff positions or a methodology that allocates funding through a weighted student funding system.”
- The Department included a new paragraph that clarifies when a district is found to be in noncompliance: “An LEA (local educational agency) that is unable to meet the requirement … will not be out of compliance with this section unless it was also able to meet the requirement in the paragraph in one or more of the preceding 3 school years.”
- The Department added language allowing a district to “rebut a finding that its methodology does not meet the requirements” of the regulations “due to special circumstances related to a particular school’s population of disadvantaged students.” As examples, the Department’s language clarifies that this “would pertain to a non-Title I school that serves a high proportion of students with disabilities, or English-learners and therefore requires higher per-pupil expenditures and disproportionately impacts the average amount of state and local funds” expended in the district or per grade span.
Several negotiators expressed concern up front with the Department’s changes. Tony Evers, Wisconsin Department of Public Instruction, clarified the test for compliance outlined in the regulations: “If a district can’t show that they meet or exceed expenditures in non-Title I schools, they are out of compliance.” Department staff noted two exceptions in the law, but agreed that this was the test for compliance. (The Department noted the exception for schools with high proportions of certain populations, and the language that allows a district to remain in compliance if they were in compliance in previous school years.) At the request of NSBA, Regina Goings, Clark County School District, Nevada asked how school districts comprised of all Title I schools could show compliance with the provisions of the regulations. ED staff noted that this was a great question—and indicated that such districts would not be required to meet requirements of the regulations because they have no non-Title I schools for with which to compare. Several negotiators asked whether it would be possible to add language to the regulations to clarify this point, and Department staff agreed that it would be helpful. Negotiators amended the following provision to address the concern:
(ii) An LEA with only a single school or only a single school per grade span or only Title I schools do not have to meet the compliance requirements in paragraph (b) of this section.
Negotiators asked general questions about the applicability of the provisions of the rule. (i.e., Is there a difference between a Title I eligible school and a Title I receiving school?) The Department provided additional information to staff, and made a few clarifying amendments. ED clarified that the provisions do not apply to Title I eligible schools. Evers deferred back to his previous comments, but asked the Department whether it would ever agree to allowing school districts to use a FTE (full time equivalent) method to demonstrate compliance with the provisions of the regulations — instead of a “methodology that allocates resources including staff positions.” The Department expressed serious concerns about that approach, arguing that it doesn’t ensure that resources are directed to Title I schools. Negotiators redirected the discussion to remind the group that the purpose of ESSA is to provide equity to all students.
Thomas Ahart, Des Moines Public Schools, Iowa, asked if the Department had calculated the cost of the proposed regulatory language for school districts. The Department responded that the regulations focus on how funding is allocated. Ahart provided detailed information about the challenges local school districts face in making budgetary decisions and the process of identifying and determining how many teachers they can afford to hire. The negotiators engaged in a detailed discussion about perceived inequities in staffing at low-income schools, and Ahart was asked if he considered equity issues in determining who to hire to fill positions at certain Title I schools — and their qualifications. He responded that he did not, because he does not hire unqualified teachers. He also reminded negotiators that school districts face several challenges in the development of the budget, and that the budget has to work for the entire school district.
Alvin Wilbanks, Gwinnett County Public Schools, Georgia, added to Ahart’s comments by stating that the proposed regulations were entirely outside of the statutory framework of ESSA. He reminded negotiators that his staff work to carry out the provisions of the law, and that he believed his purpose on the rulemaking committee was to make implementation easier for districts — not harder. He stated that the requirements of the law were being rewritten, in his opinion, and that the provisions in the regulations constituted overreach. Wilbanks stated that the proposed regulations delve too far into the operational and mechanical operations of a school district.
An hour into the supplement, not supplant conversation, the facilitator attempted to measure the temperature of the group, pointing out that a number of negotiators expressed dissent over the proposed regulations. She asked the group whether it was worth trying to work through the issues — or whether they wanted to “call the question” now. Negotiators expressed an interest in attempting to work through the disagreements — which center around how a school should be permitted to demonstrate that it provides equitable funding to Title I school sites.
Ahart provided an amendment to the Department’s proposed regulation that spurred a lengthy and detailed conversation about staffing in Title I schools and schools with high populations of under-represented students. Ahart’s amendments included the following language:
(ii) An LEA (school district) may determine the methodology it will use to allocate State and local funds to its schools, such as a methodology that:
(A) Results in the LEA spending an amount of funds per pupil in each Title I school that is equal to or greater than the average amount spent per pupil in non-Title I schools, as reported under Section 1111 (H)(1)(C)(x); or
(B) Uses a weighted student allocation formula; or
(C) Uses a full-time equivalent staffing formula.
Negotiators discussed the implications of the proposed language for over an hour. Acqueelha James, District of Columbia Public Schools, reminded negotiators that the notion that school districts are hiring unqualified individuals to work in Title I schools, or with under-represented populations is erroneous. James stated that, as an administrator, she is very fortunate to work with individuals and with teachers, who want to work in Title l schools and who want to work with under-represented students. She asked negotiators to look at the proposed amendment holistically, because these issues compel her and her staff to impact the lives of the students they teach. Negotiators continued deliberating the issues – and provided additional recommendations for modifying the Department’s proposed language. Kerri Briggs, Exxon Mobil, Texas recommended an amendment deferring to the statutory language in ESSA and requiring a district to take into consideration the statutory language. Liz King, The Leadership Conference on Civil and Human Rights, recommended adding language to clarify three issues:
- Be clear that the Ahart amendment relating to FTE’s includes all FTE’s funded with state and local funds;
- Clarify that the language will include all open positions within a school site, as opposed to vacancies announced by the district;
- Clarifying that the formula used by the district applies to all staff within the district.
Negotiators also discussed the exemption in the regulations relating to schools with less than 100 students — and increasing the minimum to 200 students. Negotiators requested so many amendments that the facilitator requested to stop the discussion and asked the Department to incorporate comments into a new, updated version of the regulations. The Department agreed to make changes, distribute an updated version of the regulations and revisit the issue later in the afternoon.
At the end of the afternoon, when committee members reconsidered regulations pertaining to supplement, not supplant requirements, negotiators considered 5 amendments to the “Compliance” section of the regulation, which determines how school districts determine a methodology to allocate State and local funds to schools. Negotiators first considered King’s recommendation, as outlined above. King clarified that the intent was to mirror an “actual expenditure test.” Marcus Cheeks, Mississippi Department of Education, expressed serious concern over the proposal, noting that it almost mirrored Comparability provisions in Title I. Department staff agreed with the concerns, noting that it would likely dissent to the amendment.
The final proposal considered by the committee was submitted by Department and included the following language:
(ii) An LEA may determine the methodology it will use to allocate State and local funds to its schools, such as methodology that allocates resources including staff positions or any other methodology of the LEA’s choosing, that allocates funding through a weighted student funding system, provided that the methodology:
- Results in the LEA spending an amount of State and local funds per pupil in each Title I school that is equal to or greater than the amount spent per pupil in non-Title I schools, as reported under Section (h)(1)(C)(x) of the Act;
- Uses a weighted student allocation formula that meets the requirements of the Act.
Negotiators stated that the proposed language seemed to be punitive. Wilbanks noted his concerns related to the “equal to or greater to” language and indicated that it was a “show stopper” for him, personally. He reiterated earlier comments, noting that it constituted regulatory overreach. Ahart added additional comments related to the effect of the regulations on the school district. Requirement around “per pupil” funding inherently requires school districts to allocate funds different. In response to questions from negotiators, Ahart noted that the Des Moines Public Schools would not be in compliance because of provisions in the local bargaining agreement that allow teachers to request transfers to different schools and because the district has programs to recruit teachers and provide additional support in Title I schools that would not be factored into the equation. Derrick Chau, Los Angeles Unified School District, noted that when you start adding caveats to the regulatory requirements, you actually limit the ability of a district to meet the requirements of the regulations
In response to numerous comments, Department staff reiterated that the regulations are intended to be as non-prescriptive as possible, ensuring only that at least as much funds are going to Title I schools as non-Title I schools. Evers noted that if proposed language were implemented today, many school districts in Wisconsin would not be in compliance purely because of salary schedules and local district policies. He noted that the State would be required to shuffle teachers around — which is not beneficial to children or for struggling schools.
Several negotiators expressed dissent on the Department’s proposed language, and the negotiated rulemaking committee was unable to achieve consensus on the supplement, not supplant regulations submitted by the Department.
Assessment Regulations: Department staff began the discussion on the proposed assessments regulations by reminding negotiators that the intent, the preference of ED staff, is to obtain consensus on all issues related to proposed assessments regulations. Staff noted that they do not believe it would be helpful to states or to school districts to only achieve consensus on portions of the regulations, or to approve “piecemeal.” Prior to the beginning of substantive discussions, ED staff reiterated their desire to achieve consensus on all aspects of assessments regulations.
Negotiators discussed the following assessment-related issues, which were carried over from yesterday’s meeting:
- 200.6 Inclusion of all students.
- (a)(ii): “Students with the most significant cognitive disabilities who are identified by their individualized education program (IEP) teams from among the students in paragraph (a)(1)(i) of this section, consistent with the definition in paragraph (e)(1) of this section.”
- The Department deleted the reference to IEP teams’ identification of students with the most significant cognitive disabilities.
- Language relating to appropriate accommodations for students with disabilities includes a reference to “nationally recognized accessibility standards.” Negotiators yesterday expressed concern with the reference, and the Department opted to leave the reference in, believing it does not change the requirements of the accommodations a school district must provide. Department staff indicated they believed it was helpful to leave the reference in the regulations.
- “Appropriate Accommodations. (1) A State’s academic assessment system must provide, for each student with a disability under paragraph (a) of this section, the appropriate accommodations, such as interoperability with, and ability to use, assistive technology devices consistent with nationally recognized accessibility standards, that are necessary to measure academic achievement of the student …”
- Negotiators yesterday expressed concern with the wording of provisions which require states to ensure equity in the provision of accommodations. Negotiators asked the Department to rephrase the regulatory language and present the requirement in an affirmative tense. The final language reads:
- “A State must ensure that the use of appropriate accommodations under this paragraph does not deny a student with a disability:
- The opportunity to participate in the assessment; and
- Any of the benefits from participation in the assessment that are afforded to students without disabilities.”
The Department amended and included the same language included in the section of the rule pertaining to the accommodations provided to students with disabilities who are also English learners.
- (2)(i) Must ensure that the use of appropriate accommodations under 200.6(b) and (f) does not deny a student with a disability or an English learner:
- The opportunity to participate in the assessment; and
- Any of the benefits from participation in the assessment that are afforded to students without disabilities or students who are not English learners.
- A major point of contention between negotiators has been the inclusion of a definition of “student with the most significant cognitive disabilities” in federal regulations. The Department conceded and deleted the formal definition from proposed regulations. However, the Department included the previous language —the working definition of “student with the most significant cognitive disabilities” — in the section of regulatory text which requires States to establish clear and appropriate guidelines for IEP teams to consider in determining what students will be assessed with an alternate assessment and with alternate academic achievement standards. The proposed regulations include the following language:
- d) State Guidelines: If a State adopts alternate academic achievement standards for students with the most significant cognitive disabilities and administers an alternate assessment aligned with those standards, the State must:
(1) Establish, consistent with section 612 (a)(16)(C) of IDEA, and monitor implementation of clear and appropriate guidelines for IEP teams to apply in determining, on a case-by-case basis, which students with the most significant cognitive disabilities will be assessed based on alternate academic achievement standards. Such guidelines must include a State definition of students with the most significant cognitive disabilities that would address factors related to cognitive functioning and adaptive behavior, such that:
(i) The identification of a student as having a particular disability as defined in the IEDA must not determine whether a student is a student with the most significant cognitive disabilities;
(ii) A student with the most significant cognitive disabilities must not be identified solely on the basis of the student’s previous low academic achievement, or status as an English learner, or the student’s previous need for accommodations to participate in general State or districtwide assessments; and
(iii) Students with the most significant cognitive disabilities do not include those students who may, with extensive, direct individualized instruction and substantial supports, be able to achieve the grade-level academic achievement standards over time.
Negotiators revisited this issue three different times. Following several attempts at amending the guidelines, Audrey Jackson, Boston Public Schools, Massachusetts requested compromise language to include “adaptive behavior” and “cognitive functioning” — and allow States to address and define such terms. (Bolded language above.)
- The Department and negotiators have discussed at length the requirements set forth in the regulations relating to the process and requirements a State must meet to request a waiver from the 1 percent cap on assessing students with the most cognitive disabilities with an alternate assessment. Negotiators expressed concern at the threshold requirements a State must meet, and the requirements set forth in the request. In response to concerns, the Department addressed the following issues, but held firm to most of the requirements included in the proposed language:
- The Department remained committed to requiring States to submit a request to the Secretary “at least 90 days prior to the start of the State’s first testing window.”
- The Department tweaked language relating to the data presented in the application for a waiver, but did not substantively change the requirements of the regulation.
- Despite repeated concern of a few negotiators, the Department maintained that a State must show it measures the achievement of at least 95 percent of students, and students with disabilities in the waiver request submitted to the Secretary;
- The Department cross-referenced the “student with the most significant cognitive disabilities” guidelines/criteria, as a requirement to seeking a waiver of the 1 percent cap. (The State’s definition of “student with the most significant cognitive disabilities” may have to be revised in order to seek a waiver of the 1 percent cap, in addition to amending general IEP criteria and guidelines.)
- State is still required to submit a plan and timeline for compliance to the Secretary, but the Department requires States seeking a waiver of the 1 percent cap to revisit it’s guidelines and criteria (definition) of “students with the most significant cognitive disabilities.”
- The Department added language clarifying that a State seeking to extend a waiver of the 1 percent cap for an additional year, the State is required to meet previous requirements and “demonstrate substantial progress for achieving each component of the prior year’s plan and timeline.”
Five negotiators attempted to modify the language of this proposed regulation, relating specifically to the criteria a State has to meet and/or demonstrate in order to request a waiver of the 1 percent assessment cap on students with the most significant cognitive disabilities. The general consensus of the group seemed to be that the requirements for seeking a waiver were onerous. Nonetheless, dissent was expressed on each of the proposed amendments. Evers expressed concern over the depth and the breadth of the requirements States had to meet in order to request a waiver of the 1 percent cap, joking that it was easier to obtain a Flexibility Waiver from No Child Left Behind.
- 200.3 Locally selected, Nationally Recognized High School Academic Assessments.
- On the first day of negotiations, negotiators expressed concerns about the logistical, practical difficulties for large districts seeking to implement a nationally recognized high school assessment. Negotiators discussed yesterday the difficulties in meeting the regulatory requirement that all students in the district be offered the nationally recognized assessment. The Department noted the need to hold all students in a district to the same assessment/accountability standard, so that parents and the public can have consistent information relating to the performance of the school district. The Department did not significantly modify the language as a result of yesterday’s negotiations, but did include an exemption for students with the most significant cognitive disabilities.
- (2) An LEA must administer the same locally selected, nationally recognized academic assessment to all high school students in the LEA …, except for students with the most significant cognitive disabilities who are assessed on an alternate assessment aligned with alternative academic achievement standards, consistent with §200.6(c).
Lara Evangelista, New York City Public Schools, New York recommended amending the Department’s proposed language to allow for school districts to choose more than one nationally recognized high school assessment — as long as data were comparable. The Department expressed concerns over the inclusion of that option and the language was not amended. Chau offered a similar amendment excepting large school districts, as identified by the State, from the requirement — but requiring those districts to implement a plan and a timeline to administer the nationally recognized assessment to all high school students in the district. The Department again expressed dissent over the inclusion of the language. Chau reiterated that the purpose of the amendment is to give larger school districts ample time to meet the requirement, and a period of time to phase out current assessments in order to utilize a nationally recognized assessments. However, the Department, with a few negotiators, maintained dissent.
- Negotiators previously expressed concerns over the definition of a “nationally recognized high school academic assessment,” as proposed in the Department’s regulations. The Department did not significantly modify the definition in response to the concerns of negotiators, citing various assessment-related challenges, and the need for a reliable and valid assessment.
- “Nationally recognized high school academic assessment” means an assessment of high school students’ knowledge and skills that is administered in multiple States and is accepted recognized by institutions of higher education in those States or other States for the purpose entrance or placement into courses in post-secondary education or training programs.”
Richard Pohlman, Thurgood Marshall Academy, District of Columbia proposed an amendment to the Department’s definition of “nationally recognized high school academic assessment,” to include “purposes of determining college and career readiness,” [bolded above], and the amendment was agreed to by the committee. Negotiators initially seemed to express tentative consensus on the language, but the Department subsequently expressed concern over the inclusion of the language, but did not disagree that college and career ready assessments may still meet the requirements of the section.
After discussing each of these issues and considering several amendments, the negotiated rulemaking committee members reached final consensus on all of the identified issues included in the proposed assessment regulations.
Prior to adjourning, Department staff thanked negotiators for their tireless work in reaching consensus on proposed assessment regulations. Staff provided a brief overview of the next steps in formally promulgating rules. The Department noted that regulations and transcripts of the negotiated rulemaking meetings would be posted on the Department’s website as soon as possible.