ESSA rule makers agree on testing regs

ESSA rule makers agree on testing regs

(District of Columbia) Although the Every Student Succeeds Act calls on states to test 95 percent of its students, draft regulations promulgated late last week set the bar higher, saying “all” students need to participate in annual assessments.

The new rules, which still must be submitted for public comment and potentially Congressional review, would also allow local education agencies to exceed a 1 percent cap on students with disabilities taking an alternative assessment – flexibility that might conflict with the Individuals with Disabilities Education Act.

Still up in the air are the rules that would govern longstanding requirements that federal education funding should supplement – not supplant – support already coming to schools from state and local sources.

The proposed regulations on testing are expected to be published in the coming weeks in the Federal Register. The rules agreed upon were unanimously approved by the 27-member committee, which included representatives of teachers and administrators, parents, civil rights groups and the business community.

Beside the supplanting issue, the committee struggled with portions of ESSA related to the 1 percent rule and testing of students with disabilities.

Under the nation’s prior version of the Elementary and Secondary Education Act – known as No Child Left Behind – states were allowed to count only a single percent of “proficient” scores from SWD who took the alternative assessment as part of the Annual Yearly Progress.

ESSA, which did away with AYP and most federal accountability provisions, gives states more flexibility. The new regulations clarify that states are not prohibited from allowing LEAs from testing more than 1 percent of SWD with the alternative assessment, to do so, however, states must:

  • submit information justifying the need of an LEA to assess more than 1 percent of its assessed students in an assessed subject with such an alternate assessment;
  • provide appropriate oversight, as determined by the state, of an LEA that is required to submit information to the state; and
  • make the information submitted by an LEA publicly available, provided that such information does not reveal personally identifiable information about an individual student.

The potential conflict some see with these regulations and IDEA is the authority that education teams assigned to look out for the needs of individual students with disabilities now have to make decisions about what tests should or should not be administered.

The supplanting regulations remain problematic largely because proposed rules that came from the U.S. Department of Education attracted an immediate rebuff from key members of Congress – notably Sen. Lemar Alexander, chair of the Senate’s education committee and a primary architect of ESSA. Alexander called the proposal a federal overreach.

Under the arcane rulemaking process, the committee’s inability to find consensus on an alternative set of rules that might pass muster with Alexander allows the Education Department to move ahead with its own draft. Expectations are that the department will submit its rules for public review through the Federal Register and, theoretically, later adopt them. Meanwhile, however, ESSA also gives Congress another shot at its own review and potentially taking up legislation to force the administration to make changes.

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