Feds Try to Illegally Regulate State Education Standards

In December of last year, President Obama signed the Every Student Succeeds Act (ESSA), which aimed to roll back much of the federal government’s role in education policy, but now the Department of Education has released a lengthy proposal that might impede that goal. School systems are set to begin the transition from the No Child Left Behind Act to ESSA, during the upcoming academic year and put the new program into full effect in 2017–18.

At the end of May, however, the Department of Education, tasked with overseeing the state-education plans developed under ESSA, issued a set of proposed regulations, parts of which assert federal control over state standards. In addition, some measures seem to have been designed to increase student participation in Common Core–aligned testing.

One such measure would require states to take “robust action” against public schools that don’t meet a 95 percent threshold for participation in standardized tests. In other words, if more than 5 percent of students in a certain school decide not to take federal “accountability” tests — or if their parents opt out for them, something many parents have been doing in a grassroots effort to oppose the high-stakes mode of testing — that school must be formally sanctioned by the state. The Department of Education implies that federal funds could be withheld from schools that are deemed to have ineffectively handled the problem of students opting out of testing.

Furthermore, the regulations would establish a mandatory “summative rating system,” requiring each state to develop a comprehensive rating system based primarily on how students score on the federally mandated standardized tests. Each school would be given a grade or rating on a scale developed by the state, and the data informing the rating would have to be publicly available. Grounds for such a rating system cannot be found anywhere in the law, however, according to Senator Lamar Alexander (R., Tenn.), ESSA’s primary sponsor. In fact, the bill was specifically worded to prevent the Department of Education from imposing such regulations on states’ education plans.

For example, while ESSA requires that each state “assure” the Department of Education that it has some form of curriculum standard, the department’s new proposal requires that states “provide evidence” of such standards. Alexander pointed out at a recent Senate hearing that the “provide evidence” language in the proposed regulations could enable the Obama administration to reject a state’s standards on the pretext that it had no evidence, when in reality its aim would be to reject all guidelines that don’t conform to the preferred federal standards — namely, Common Core. Alexander noted that ESSA explicitly and repeatedly prohibits the department from interfering with state standards.

Meanwhile, state membership in the two federally funded multi-state groups in charge of designing Common Core–aligned assessments has dropped 62 percent since 2011. Thirty-eight states have left one or both of these groups. That decline coincides with the release of the new standards and tests. As of May, one of the two multi-state groups had only six states planning to use its standards in the upcoming academic year; the second group, 14 states.

The Department of Education is accepting feedback on its proposal until August 1. After that, federal bureaucrats will finalize the rules. If the department goes through with these heavy regulations as proposed, it seems likely that the most crucial parts of ESSA could be overridden by federal oversight — exactly what the law was written to prevent.