Congress is pushing to overturn as early as this week regulations that outline how states must carry out a federal law that holds public schools accountable for serving all students.
The debate comes as Republicans are making a sweeping effort to roll back regulations finalized in the last few months of Barack Obama’s presidency. GOP lawmakers say that in this case they are targeting actions under Obama’s Education Department that contradict legislative intent when the school accountability law was passed in 2015.
“We said to the department, ‘You can’t tell states exactly what to do about fixing low-performing schools. That’s their decision.’ This rule does that,” Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Education Committee, said in a statement last week. “And we said to the department, ‘You can’t tell states exactly how to rate the public schools in your state,’ but this rule does that.”
Democrats say President Trump and Education Secretary Betsy DeVos appear to be giving states too much deference on education issues.
Sen. Patty Murray (Wash.), the ranking Democrat on the Education Committee who helped negotiate the 2015 law, said repealing the regulations would be a “devastating blow to students across the country and would throw state and district planning into chaos at the very moment when they had started to settle into the new law.”
The regulations are meant to outline what states must do to meet their obligations under the Every Student Succeeds Act, the successor to the 2002 No Child Left Behind law. The Republican-led House voted last month to undo the regulations via the Congressional Review Act, which allows lawmakers to veto a rule they don’t like. But the CRA would also prohibit the Trump administration from issuing a rule that is “substantially similar.”
The Senate could vote on the measure as early as this week, and it needs only a simply majority to pass. Republicans are confident that they have that majority, according to a GOP aide. But at least one Republican, Sen. Rob Portman (Ohio), has said he plans to oppose the repeal, saying that the regulations provide important protections for students who have too often been forgotten.
If the bill reaches Trump’s desk, he is expected to sign it, leaving a regulatory void and injecting uncertainty into state efforts to comply with federal law.
The current law is far less prescriptive than its predecessor and leaves states largely in charge of deciding how to evaluate elementary and secondary schools and what to do when they fail. But the law also includes important civil rights guardrails meant to ensure that subgroups of students — such as those with disabilities, or those who are poor — don’t slip through the cracks.
Obama’s regulations sought to provide more detail and clarity than the statutory language. They outline what information must be included on annual school report cards sent to parents and the public, define what it means for a group of students in a school to be “consistently underperforming,” and lay out a timeline for state interventions at struggling schools.
Republicans say the administration went too far, creating some rules that either had no basis in the law or conflicted directly with it.
"We wrote a very specific law saying the states are in charge," said Rep. Todd Rokita (R-Ind.), speaking on the House floor after introducing the resolution to roll back the resolutions. "Here we have a federal agency inserting itself, not just interpreting law, but actually making law and taking us in the exact opposite direction that all of us intended."
A coalition of civil rights advocates and business leaders, including the Leadership Conference on Civil Rights and the U.S. Chamber of Commerce, are urging Congress to leave the regulations in place, saying they provide important clarity and certainty for states.
One of the most-debated parts of the law says that schools must test at least 95 percent of eligible students each year, a provision meant to ensure that schools don’t encourage low performers to stay home on test day as a way to inflate average scores.
The ascent of the opt-out movement, in which parents refuse to allow their children to take standardized tests as a way to protest the emphasis on testing, has created politically charged questions about how states should handle schools that don’t meet the participation requirement.
Both the law and the regulations allow states to decide what to do about those schools — but the regulations specify that the consequence must be severe enough to force schools to come into compliance.
Many Republicans and the nation's largest teachers unions argued that the Obama administration created this requirement to punish schools out of thin air. But civil rights advocates said that without meaningful consequences, the 95 percent rule — critical for ensuring that schools are held accountable for their students' true performance — would be meaningless.
"There will be districts and schools with a strategic incentive not to have certain kids tested," said Gini Pupo-Walker of Conexión Américas, a group that advocates for Latino families in Tennessee and is part of a statewide coalition advocating for educational equity.
Many states are deep into designing school-accountability systems based on the regulations. The first wave of applications are due to the Trump administration on April 3, leaving officials little time to retool their applications if Congress revokes the rules.
Chris Minnich, executive director of the Council of Chief State School Officers, said in the absence of regulations, states will need DeVos to quickly and clearly explain what is expected of them.
"In the end, what's most important is that the secretary be clear with the states about what's next," Minnich said. "States are already planning, they have good plans in place, they're starting to come together – and we can't have this slow them down."
DeVos told states last month that deadlines for submitting applications won't change despite the turmoil. She promised to offer further guidance in the near future. "One of my main priorities as Secretary is to ensure that States and local school districts have clarity during the early implementation of the law," she wrote.
Some state education chiefs welcome the overturning of the rules, saying it will give them more flexibility and would not derail the work already underway. But others said they fear that the rollback opens the door for some states to design lax systems that don't help identify and fix poorly performing schools.
"I certainly hope that states don't have a blank check here," said Mitchell Chester, commissioner of education in Massachusetts.
The two major teachers unions were both critical of the regulations when they were finalized in November, but have since charted different courses. The National Education Association, the largest, has not taken a position on whether Congress should repeal them. But American Federation of Teachers President Randi Weingarten on Thursday urged senators not to overturn the rules, saying that they struck a decent balance between flexibility for states and protections for equity and financial accountability.
Some conservatives also oppose a wholesale rollback, arguing that some provisions actually provide more flexibility to states than the law itself.
Mike Petrilli of the right-leaning Thomas B. Fordham Institute argued that rather than repealing the regulations, Congress should allow DeVos to determine which rules her department will not enforce. Over time, he suggested, the department could officially revise the rules to exclude those that are particularly offensive, without losing the ones that are helpful.
"Senate Republicans have a sledgehammer; Betsy DeVos has a chisel," Petrilli wrote on Fordham's blog. "They should let her use it."