ESSA Negotiated Rulemaking Gets Underway

The new Every Student Succeeds Act (ESSA) is intended to significantly shift authority and decision-making to the state and local level compared with the No Child Left Behind Law it replaced.

This week in Washington, a group that included Wisconsin State Superintendent Tony Evers began discussions on how to implement the new law in a way that reflects that new balance between federal authority and state and local authority. As with many complex issues, the devil is often in the details. An update on those discussions follows.

For certain issues, ESSA requires the U.S. Department of Education (USED) to use a process known as “negotiated rulemaking” when writing regulations.

“Negotiated rulemaking” is a process, used by federal agencies, in which representatives from a government agency and affected interest groups (in this case a committee comprised of stakeholder group members) negotiate the terms of a proposed administrative rule or regulation. (Historically, negotiated rulemaking has been more commonly used to formulate regulations affecting higher education than for those affecting K-12 education.)

Issue areas in which negotiated rulemaking is required under ESSA include standards, assessments (which includes the use of computer-adaptive tests, allowing advanced math tests to count for 8th grade accountability, using “nationally recognized tests” in place of state exams for high school accountability, and tests for special populations of students) and “supplement-not-supplant” (which addresses how federal dollars augment rather than replace local spending).

The first sessions of negotiated rulemaking got underway this week with meetings on Monday, Tuesday and Wednesday (March 21-23). View the agenda, committee members and relevant documents. The committee will next convene April 6-8, with an optional session April 18-19 at its discretion.

Prior to this week’s meetings, the USED posed questions on two of the topics under negotiation: supplement not supplant and assessments. (See Education Week’s Politics K-12 Blog coverage related to supplement-not-supplant and assessments.)

On Monday, U.S. Secretary of Education John B. King, Jr. kicked off the proceedings. He addressed the committee this morning and advised the negotiators to ask themselves, “How do our decisions honor and reflect the civil rights legacy of the law?” He noted that, “Regulations that come out of the process will define how we implement the law for years to come.”

The committee’s first topic of discussion was supplement not supplant (ESSA provisions requiring that federal Title I funds be used in addition to state and local education investments and not as a substitute for such). This topic yielded a dynamic conversation with perspectives from all members, who discussed the following:

  • The goal of equity, appropriate roles of enforcement, and appropriate local education agency (LEA) response;
  • Appropriate punitive measure(s) for non-compliance; and
  • the U.S. Department of Education’s role (should it focus on methodology or just set parameters, as well as should it focus on outcomes as opposed to focusing on means).

After the supplement not supplant discussion, the Committee moved on to discuss Issue Paper #6 (regulatory updates on statewide assessments ) and Assessment Issue Brief #1 – Computer-adaptive assessments.


On Tuesday, the committee resumed its conversation relating to the use of computer-adaptive tests (CATs), Issue Paper #1.  The negotiators:

  • Discussed the use of such assessments for students with the most significant cognitive disabilities. Specifically, the use of CATs as alternative assessments aligned to alternate academic achievement standards and whether it is possible to measure the student’s grade-level achievement while simultaneously measuring achievement.
  • Asked questions about the interplay of the Individuals with Disabilities Education Act (IDEA) with use of CATs to assess students with the most cognitive disabilities, focusing on the role of the Individualized Education Plan (IEP) team in determining if such assessments should be used with regard to a particular student.
  • Discussed limitations and options relating to using CATs, but focused on whether the use of assessments is psychometrically valid, reliable and fair.
  • Focused on provisions of ESSA that need additional explanation or guidance – for both states and local school districts when draft regulatory language was discussed.

The second topic focused on the provisions in ESSA that provided flexibility to states and schools districts for students who take advanced mathematics assessments in the eighth grade (Issue Paper #2). The previous NCLB requirement was extremely burdensome for school districts that offer advanced mathematics coursework in the eighth grade, and USED staff detailed the ways states have had to comply with provisions over the last several years.

The Department (USED) and negotiators discussed proposed language implementing the exception. Negotiators urged USED to implement the provision in a manner that allowed flexibility to states and districts to determine the best manner to implement the exception. Negotiators and USED focused on equity, examining student access to advanced mathematics coursework. Negotiators discussed various ways the Department could address opportunity and help states ensure that all students have access to advanced coursework. Negotiators seem to recognize the importance of this exception in alleviating unnecessary requirements that previously required school districts to “double-test” students.

USED staff, in coordination with the committee’s facilitator decided to slightly adjust the agenda and consider Issue Papers #4a and #4b, which cover students with disabilities and assessments. USED staff provided a brief overview, and negotiators were given an opportunity to ask questions about assessments—in general—and, in particular, the issue of assessing students with disabilities.

Negotiators also discussed the issue of meaningful access, focusing specifically on the ability of students with disabilities to access general curriculum. Negotiators seemed to recognize that formal regulations may not be the best way for USED to address equity, and referenced the possibility of providing guidance, technical assistance, or using the peer review process to address equity. Negotiators discussed principles of UDL and whether such principles should be incorporated into USED guidance. Several negotiators referenced the impact of the guidance on teachers, school leaders, and local school districts.

There was a spirited debate about provisions in ESSA, which existed under NCLB and continue under ESSA, limiting to 1 percent the number of students statewide who can take assessments intended for those with the most significant cognitive disabilities (Issue Paper #4b). Negotiators discussed:

  • The effect of the cap on IEP teams and teachers;
  • Whether the cap has a chilling effect on IEP team/ teachers;
  • Whether to define “most significant cognitive disabilities” in regulations promulgated by USED;
  • How the state should monitor the use of the alternative assessment;
  • Options for compliance activities, such as focusing on LEA/SEA collaborative efforts to reduce use of the test, when necessary;
  • Whether/How USED should hold states accountable for exceeding the 1 percent cap;
  • Whether students with significant cognitive disabilities are over/under identified;

Education Week’s Politics K-12 Blog reports that some advocates worry the cap will be hard to monitor district-by-district. Ed Week reports Education Secretary King argued it makes sense to have a definition of the 1 percent cap, in part to deal with that issue. But Wisconsin State Superintendent Tony Evers noted that there has long been a 1 percent requirement without additional parameters. He worried any change could conflict with the main law for special education, the Individuals with Disabilities Education Act. Others questioned why negotiators would want ESSA, which was designed to return more authority to state and local districts, to go further than the No Child Left Behind Act, which it replaced, in defining the cap.

In the end negotiators decided to form a subcommittee to discuss issues related to assessing students with the most significant cognitive disabilities.

Before concluding the day’s proceedings, the negotiated rulemaking committee began discussing the ESSA provision (Issue Paper #3) that authorizes local school district to request to use a nationally-recognized high school assessment in lieu of the state assessment. The committee discussed what it means for an assessment to be considered “nationally-recognized.”

Negotiators pointed to several factors that contribute to an assessment being considered “nationally-recognized.” Concerns were expressed that nationally-recognized assessments should not produce disparate outcomes for students and should be able to offer accommodations for students with disabilities and English language learners. Negotiators provided mixed comments as to whether states should be charged with defining “nationally-recognized” or whether USED should define the term in some form of guidance.

Negotiators discussed possible safeguards that USED may implement to ensure that all students within a district have equal access to and receive educational benefits from district-selected assessments. Negotiators discussed whether, in instances where a district requests to use a nationally-recognized assessment, all students in the district should be required to be assessed with that assessment.

Negotiators also addressed implementing possible requirements for districts considering requesting to use a nationally-recognized assessment, including offering a public comment period for parents and members of the community to weigh in on the decision/request prior to submission to the state. Negotiators seemed to all agree that regulations would be necessary to fully implement this provision of ESSA. Negotiators addressed that the statutory requirements and criteria assessment must meet in order to be considered as a nationally-recognized assessment.


Wednesday’s meeting began with a clarification regarding the proposal to organize a subcommittee to create the definition of “students with the most significant disabilities.” With two negotiators expressing concern over the need for a federal definition, the general consensus of the committee was to form a subcommittee to meet to look at various state definitions and consider potential terms for a federal definition. The subcommittee was formed, and the Department will work to assist in coordinating conference calls of the subcommittee, which will not be public, per the committee’s operating procedures. All committee members, however, will receive the conference call information. (List of subcommittee members is provided below at the end of this post).

The agenda items addressed included the assessment of English learners (ELs). Specifically, the issue papers: 1) the Inclusion of English learners in academic assessments (Issue Paper #5a) 2) the inclusion of English language learners in English language proficiency assessments (Issue Paper #5b) and updating assessment regulations to reflect statutory changes (Issue Paper #6).

Negotiators examined the issue of the statute that specifies that a state must make every effort to develop assessments in languages (other than English) present “to a significant extent” in the student population.  Negotiators extensively discussed the issue around what must a state do to demonstrate that it has met the requirement to “make every effort.”

USED staff provided a history of assessing students who are English language learners (ELLs), even noting that some states prohibit assessments from being given in one’s native language. The negotiators sought more information regarding how quickly a student may learn English, both listening and speaking, and actually reading and writing in the academic subjects. USED staff said that depending on a number of factors (i.e., beginning level of proficiency in English, etc.) that it takes on average 2 to 3 years for oral acquisition and 7-8 years for academic acquisition. At times, some of the negotiators became emotional during the conversation sharing that as students they were punished for not knowing the English language, and that not instructing children in their native language inhibits their learning.

In summary, of most significant, negotiators discussed the following:

  • What must a state do to demonstrate it has met the requirements to “make every effort?”
  • The effect of testing ELs and the inclusion of EL population in the state’s accountability system
  • Data requirements currently applicable to states and school boards
  • The risk of over-regulating state plans, in relation to EL data reporting requirements
  • Differences between language translation and assessing in the native language
  • The need to have families make the decision regarding appropriate EL accommodations

Negotiators expressed the need for regulations not to be too prescriptive for states as they need flexibility – especially in terms of the different types of languages that are specified which may be predominant in one state – but not necessarily in another.

Derrick Chau from Los Angeles Unified School District, California said that expecting California to respond in a prescriptive way may not meet the needs of the local districts.

During the discussions, the local governance perspective was shared by Alvin Wilbanks, Gwinnett County Public Schools, Georgia as they discussed the importance of providing guidance versus regulations. Mr. Wilbanks noted that the ideas discussed are good ones but that you need to keep in mind the impact of costs on the district if something is regulated.

Thomas Ahart, Des Moines Public Schools, Iowa agreed with Mr. Wilbanks and said “We are trying to protect student rights, which has to happen by providing appropriate resources.”

The issues of assessing ELLs and the appropriate way in which a state must demonstrate compliance with this ESSA provision produced the widest array of opinions between negotiators expressed thus far. Some negotiators urged the USED to create specific parameters, standards or terms in the regulations, while others argued that the issue of compliance with ESSA provisions should be left to the states to determine individually. In wrapping up the conversation, negotiators seemed to agree that guidance to states highlighting best practices would be helpful, and that current technical assistance provided by the Department was useful. A few negotiators commented that the best approach was for the federal and state government to work in partnership to accomplish goals related to the education and assessment of ELLs.

With regard to ELL proficiency assessments, a major decision point for the USED is whether English language proficiency assessments will be subject to peer review – and their representatives did not tip their hand.

There were many suggestions from negotiators for additional regulation, including:

  • Subject screening, content & achievement assessments for ELP to peer review
  • Clarify that LEAs must use the statewide proficiency assessment
  • Explicitly exempt Native American language speakers from English language assessments until at least 50 percent of instruction is in English

The Committee finished the day with updating assessment regulations to reflect statutory changes (Issue Paper #6).


Each day of this session concluded with an invitation for public comment. There were no responses on Monday or Tuesday; however, Adam Fernandez with MALDEF made a comment to round out the final day. Fernandez gave a legal and historical perspective on accommodations for English learners and the relationship of ESSA regulations to other laws such as the Individual with Disabilities Education Act (IDEA).

Committee members will receive draft summary of the Committee’s work for the first session for their review. Once the Committee members have approved the draft summary it will become a public document.

The committee will convene for its second set of sessions on April 6-8.


Subcommittee Members (as noted above)*

  • Rita Pin Ahrens, District of Columbia
  • Kerri Briggs, Exxon Mobile, Texas
  • Regina Goings, Clark County School District, Nevada
  • Ron Hager, National Disability Rights Network, District of Columbia
  • Leslie Harper, Leech Lake Band of Ojibwe, Minnesota
  • Liz King, The Leadership Conference on Civil & Human Rights, District of Columbia
  • Lisa Mack, Ohio PTA, Ohio
  • Aaron Payment, Sault St. Marie Tribe, Michigan
  • Mary Cathryn Ricker, St. Paul Public Schools/American Federation of Teachers, Minnesota

*The Subcommittee’s first conference call is scheduled for March 30.