How ESSA Regulation Protects Choice and Local Flexibility



By 03/01/2017

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This is the third in a series of three blog posts about how state and local education policy would be affected by the repeal of ESSA regulations that were written during the Obama administration. On Monday, Brandon L. Wright laid out the big picture by describing what Congress is expected to do and what should happen next. On Tuesday, Anne Hyslop looked at some of the unintended consequences of repealing the ESSA regulations, such as eliminating key flexibilities and leaving a murkier understanding of what the law requires. Today, Christy Wolfe looks at the importance of regulatory clarity when it comes to school choice.


As a mom of three children, I’ve learned that structure and a few rules can make life much more enjoyable for everyone, including the kids. Family rules should be clear, simple, and consistently enforced. Structure in a context of empowerment can make all the difference.

ednext-blog-march17-wolfe-essaWhat’s true of families can also be true of the relationship between the federal government and the states. In my eight years working on regulations for the Elementary and Secondary Education Act (ESEA) and the Individuals with Disabilities Education Act at the U.S. Department of Education, I learned that rules and guidance can be as much about protecting freedom, promoting flexibility, and encouraging state-led innovation as they are about ensuring faithful application of federal laws. In fact, one of the most valuable pieces of guidance the federal government can offer to states is to avoid inferring federal mandates where they don’t exist.

Regulatory clarity is especially valuable when it comes to promoting school choice. Secretary Betsy DeVos now has the opportunity to use federal regulations and guidance to create a safe space for states and local authorities that want to maximize the potential for school choice.

Congress can be vague—on purpose

When Congress agrees on any bill language in order to achieve final passage, it doesn’t mean there was agreement on intent. Some language is left deliberately vague because greater specificity would have exposed deep divides in what different sides were trying to achieve in key sections of the law. Other language lacks detail because Congress wanted to leave such details to executive-branch guidance or regulations, including application requirements and issues that depend more on state context.

As a result, there are different kinds of statutory vagueness. Intentional statutory flexibility grants freedom to states—for example, to determine how to use assessment participation rates in their state accountability system. But ambiguous language can be problematic, such as when it leaves states having to decide whether the Every Student Succeeds Act (ESSA) overrides their state charter school teacher credentialing requirements. In the latter case, regulations or guidance can serve as an important guardrail to ensure that states don’t abrogate hard-won school autonomies in the name of ESSA compliance.

Creating a “safe place” for choice and flexibility

Regulations and guidance can create a “safe place” for forward-leaning state and local leaders that want to align their federal funds with their own decisions—and dollars—by which to expand school choice. ESSA offers much flexibility to states, but when faced with nebulous statutory language, state attorneys and program managers aren’t necessarily inclined to sign off on bold new uses of the money that comes from Washington. They often want to see some direct authority in statute or regulations. That’s partly because the same fault lines that prevented agreement on issues in Congress (or the executive branch) often exist in states as well. Vague statutory and regulatory language can impede choice by empowering state decision-makers who are opposed to it. The Trump administration should look at opportunities to “tip the scales” in these state-level debates, by clearly delineating just how expansively the statute can be read.

Secretary DeVos can leverage regulations and guidance to ensure that ESSA is read as expansively and flexibly as possible by doing the following:

1. Spell out flexibility for state educational agencies (SEAs) to contemplate accountability that looks different in urban areas with many charter schools. ESSA’s flexibility coupled with the fact that some cities now have fewer than half their schools within the traditional district can enable state leaders to apply charter-style accountability to district-run schools. Consequently, all public schools in a city could be held accountable via performance contracts held by an independent authorizer. This would, in turn, allow state leaders to give district-run schools charter-like autonomy and create a single citywide accountability system. (See Andy Smarick’s paper on this idea for the National Alliance.)

2. Allow and encourage states to leverage Title I’s 7 percent set-aside for school improvement to replicate and expand high-quality charter schools to serve students otherwise attending low-performing schools (i.e., those identified for comprehensive support and improvement). Without clear permission, local education agencies (LEAs) and SEAs may be hesitant to use school improvement funds to open or expand high-quality schools.

3. Support the use of Title I funds to turn around schools that feed into or out of struggling schools, not just low-performing schools. Make it clear that strategies can integrate targeted support schools that feed in or out of schools identified for comprehensive support and improvement. The comment and responses section of the Obama Administration’s final ESSA accountability rules indicated this would be possible.

4. Encourage states to implement Direct Student Services (DSS). Direct Student Services is an optional, 3 percent state-level set-aside in Title I that awards funds to LEAs to provide innovation to students. There is a lot of potential in this broad authority, should states choose to take advantage of it. Chiefs for Change has already done great work generating ideas for DSS’s potential. Secretary DeVos could capitalize on those ideas and actively encourage the use of DSS, while providing guidance that illustrates potential best practices and clarifies any ambiguous statutory language. She could shape DSS into a program that fosters choice in a variety of ways:

• Providing specific guidance on how states can integrate and align their DSS program with their use of the Title I set-aside for school improvement.

• Encouraging innovative strategies, such as micro-charter schools to provide school choice and access to courses not readily available district-wide. Micro-charters are schools where individuals or an organization receive a charter to open a very small school to test out new ideas on a smaller, less risky scale. With micro-chartering, one or more classrooms or individual teachers could receive a charter to provide course access to students beyond the walls of a particular school—or to incubate new charter school models on a small scale before growing them.

• Requiring LEAs to be transparent and report the benefits they are furnishing to individual students, so DSS isn’t simply a windfall for district bureaucracies.

• Clarifying a state’s responsibilities with respect to the high-quality tutoring provided through DSS.

5. Weighted student funding pilot. The Flexibility for Equitable Student Funding pilot gives districts that use student-based budgeting new freedom to allocate Title I and Title II dollars to schools along with state and local dollars. Allocating funds based on the number and characteristics of students that attend a school, instead of more typical methods of district-based budgeting and funding personnel, has the potential to facilitate public school choice by helping to ensure district schools of choice receive equitable funding. Secretary DeVos should use her authority to simplify the application process for districts wanting to take advantage of this pilot. Guidance to states can help remove any state imposed accounting roadblocks that might further deter districts from participating in this pilot

6. Issue comprehensive ESSA school choice guidance. A comprehensive choice and ESSA guidance package could connect the dots for SEAs and LEAs on all the authorities in the statute that could be integrated into a comprehensive vision for school choice, and describe how they can work together: Title I, DSS, Equitable Student Funding Pilot, Magnet Schools Assistance Program, Charter Schools Grants, and the Student Support and Academic Enrichment (SSAE) grant. In addition, guidance can address how to transfer funds between programs to support choice, using the “transferability” authority.

7. Streamline and update Charter Schools Program guidance. Current Charter Schools Program guidance needs to be revised to be consistent with ESSA. It should also take advantage of flexibility in the statute, such as new freedom for schools receiving federal aid to implement weighted lotteries, as well as language encouraging states to request waivers to tailor the program to their state.

8. Ensure that ESSA isn’t used to undercut state charter school laws. For example, clear guidance or regulations are necessary to ensure that states don’t use the federal “teacher effectiveness” definition requirements to layer on teacher evaluation requirements that are not otherwise in state laws.

9. Revisit certain ESSA accountability regulations—if they aren’t repealed by Congress. The National Alliance for Public Charter Schools has identified specific issues in the accountability rules that would potentially hamstring charter schools through additional regulation, such as new reporting requirements.

While the Secretary has the authority to rewrite or not enforce troublesome provisions in the accountability rules, Congress may short-circuit that process and repeal the rules outright. A repeal, however, could make it more complicated to implement choice-friendly regulations, given the restrictions the Congressional Review Act would place on future ESSA rulemaking. I believe, however, that much of what I’ve outlined here could still be accomplished via guidance if regulations are not possible.

While the Department has already spilled a lot of ink describing how to use ESSA funds, there is very little guidance for SEAs and LEAs that may want to take advantage of flexibility in the statute to use those funds to advance school choice. Proactive choice regulations and/or guidance will give states and districts the legal assurance they need to innovate and to provide more options to their families.

— Christy Wolfe

Christy Wolfe is the senior policy adviser for the National Alliance for Public Charter Schools.

This post originally appeared in Flypaper.




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