The Senate’s 50–49 Killing of ESSA Rules: A Sweeping Change in How America Will Rate (and Fix) Schools
On Wednesday, the Senate voted to reject the Obama administration’s regulations regarding state accountability in schools under the Every Student Succeeds Act. This decision prevents the U.S. Department of Education, along with newly appointed Secretary Betsy DeVos, from implementing similar regulations. As a result, power in education policy will be returned to the states, which have already regained control following the bipartisan passage of ESSA in 2015.
The vote to block the regulations on Thursday was predominantly split along party lines, with the exception of Senator Rob Portman of Ohio, a Republican, who supported the Democrats in maintaining the accountability rules. Portman argued that these rules were necessary to protect students who have historically been marginalized and overlooked.
This vote on ESSA also differed from Wednesday, when eight Democrats joined the Republican majority in using the Congressional Review Act to overturn another Obama-era education rule regarding teacher preparation programs.
The debate surrounding the Obama accountability regulations highlighted a divide between Democrats, who believe the rules are essential for safeguarding the civil rights of vulnerable student groups as outlined in ESSA, and Republicans, who view the regulations as an overreach that goes against the purpose of the law, which was to assign authority for K-12 education to the states.
In addition, Democrats criticized the use of the Congressional Review Act, claiming that it was too heavy-handed. Previously, this act had rarely been utilized, but Republicans have recently employed it to block seven regulations established by the Obama administration, ranging from mining to firearms to federal contracting. It had been successfully used only once prior to this Congress.
Senator Chris Murphy of Connecticut, a Democrat, argued that much of what is included in the regulations is generally accepted, and any provisions deemed unfavorable by Republicans should be addressed through the normal rulemaking process, rather than banning future regulations altogether. Murphy stated that although there is agreement on 80 percent of the regulations, passing this vote would likely eliminate that 80 percent.
Senator James Lankford, a Republican from Oklahoma, countered the Democrats’ arguments by suggesting that they were essentially requesting DeVos to rectify the Obama administration’s mistakes by issuing new rules. Lankford claimed that using the Congressional Review Act would settle the matter permanently, ensuring that Washington, D.C. would not regain control over teacher evaluation, student success evaluation, and school evaluation.
Prominent civil rights leaders advocate for strong oversight from Washington, D.C. in these areas, arguing that education quality is an issue of equal rights and should not be left to the discretion of the states. Catherine Lhamon, former assistant secretary for civil rights at the Education Department, expressed her belief that the regulations were the result of the expertise of numerous experts and were developed through a public process in accordance with the guidelines established by Congress. Lhamon currently serves as chair of the U.S. Commission on Civil Rights.
State leaders, on the other hand, have emphasized their readiness to assume responsibility for education and have downplayed the impact of the Congressional Review Act. Chris Minnich, executive director of the Council of Chief State School Officers, stated that permanently blocking the ESSA regulations would not greatly affect states that plan to submit their proposals in early April, as these regulations are already on hold due to the broader freeze on pending regulations implemented by the Trump administration. However, the rule ban and any guidance provided by DeVos during the interim will have a greater impact on states submitting their plans by the second deadline on September 18.
The department should provide guidance rather than official regulations, which are prohibited by the Congressional Review Act resolution. According to Minnich, there are a few specific areas where guidance is needed. For instance, states require clarity on how to incorporate the performance of English-language learners into school accountability plans, as well as guidance on the appropriate weight to give academic measures in these systems. The law states that academic measures must have "much greater" weight than non-academic measures like school climate surveys or access to advanced coursework.
Minnich also mentioned that states may need guidance on how to include the requirement that 95 percent of students participate in standardized tests, considering that the law also protects students who choose to opt out of these exams. He believes that while additional clarification may be necessary in specific areas, the leadership and conversation around implementing this law should be driven by the states.
Kirsten Baesler, superintendent of public instruction in North Dakota, shared a similar sentiment, stating that her state is already making progress. North Dakota has been operating under the restrictions of the No Child Left Behind standards for 15 years, as it never received a waiver. Baesler mentioned that the regulations had no significant impact on their primary commitments.
Baesler expressed that their only concern is regarding the specific format required by the Education Department for the plans. DeVos has promised to provide states with more information on state plan requirements by March 13, prior to the April 3 deadline for the first submission.
In her letter, DeVos emphasized that her rules would only require "absolutely necessary" information for the consideration of state plans. She stated that her main priority as secretary is to provide clarity to states and local school districts during the early implementation of the law, while ensuring that regulations comply with the requirements of the law and do not impose unnecessary burdens.
There has been no response from the Education Department regarding the specific issues that DeVos’s new guidance will address, the groups being consulted in the drafting process, or any feedback they have received on the matter.
A department spokesperson stated in an email to last week that states should continue progressing with their plans, and that the regulatory delay should not hinder or delay the implementation of ESSA.