Members of Congress, education leaders and students applaud after President Obama signed the Every Student Succeeds Act during a ceremony in the Eisenhower Executive Office Building on December 10, 2015 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

Congress last month finally rewrote No Child Left Behind (eight years late) and delivered a new K-12 education law to the country called the Every Student Succeeds Act, or ESSA. The new law js intended to fix some of the most egregious problems with NCLB, and return significant education policy-making power to the states. But there are questions about exactly how much power the states have to change policy, including on accountability systems that have been pushed by the Obama administration for years.

In an effort to learn more about the law, education historian and activist Diane Ravitch asked David P. Cleary, chief of staff to Sen. Lamar Alexander of Tennessee and staff director of the Senate Health Education Labor and Pension Committee, to answer specific questions about ESSA’s provisions to help give direction to the continuing debate about what it actually says. Alexander is the chairman of the Senate education committee, and his efforts were instrumental in the successful effort to write and pass ESSA.

[The successor law to NCLB has, it turns out, problems of its own]

Ravitch has given me permission to publish the questions and answers she is posting on her blog. In an introductory note to Ravitch, Cleary wrote that there are many questions about how the law will be implemented at the federal, state and local levels, and that Alexander plans to hold oversight hearings to monitor implementation. Cleary also wrote:

One of the driving principles behind Chairman Alexander’s efforts to fix No Child Left Behind was to restore to states, school districts, classroom teachers and parents the responsibility for deciding what to do about improving student achievement. This will enable governors, chief state school officers, superintendents, principals, teachers, parents, students, advocates, and the public could grapple with these difficult issues and reach conclusions that work for their state and community.

Most importantly, the new law ends No Child Left Behind’s accountability system and also allows states to move in a different direction, if they choose, from many of the policies of No Child Left Behind and the waivers of the past several years.

In many ways, ESSA is just the beginning of the story because states will now need to figure out what to do with all of this new flexibility and responsibility.

Here are Ravitch’s first, second and third questions, with Cleary’s responses — both short and long answers to each query. More will be published in the coming days. Cleary’s references to “the Secretary” refer to the U.S. secretary of education.

Question 1 from Ravitch’s blog

Q) How will ESSA affect student standardized testing? Most educators and parents believe that there is too much testing and they want less of it. What does ESSA do to reduce testing and the high stakes attached to it?

Cleary’s short answer:

ESSA should significantly affect testing. Through testimony we learned that although the federally required math and reading tests provide valuable information on student learning to teachers, parents, states, and the public, many states and school districts administer many more tests than necessary, largely in part to prepare for the one-time high-stakes tests required under No Child Left Behind. State and school district leaders agree that shorter and fewer tests are needed. For example, we learned that a Fort Myers, Fla., school district gave its students more than 160 tests in preparation for the federal test[s] required under NCLB.

ESSA creates an opportunity for states to reevaluate the amount of tests their students take and how the results of those tests are used. While we kept the federal requirement that students take a total of 17 tests over a their 10 years of schooling from grades three through 12, we eliminated the federal requirement that determined whether a school is succeeding or failing based only, in effect, on federally required tests. We also ended the waiver requirement for teacher evaluation linked to testing.

Moving forward, it will be up to states—as well as and governors, legislators, teachers, parents, and advocates–to decide whether to have more than the 17 federally required tests and how important those tests should be in determining whether schools are succeeding or failing. Additionally, the bill increases state flexibility around testing by allowing states to develop innovative assessment systems, such as competency based systems, in lieu of the existing state tests. ESSA also allows school districts to select a nationally recognized assessment, such as the SAT or ACT, that high schools can administer in lieu of the state math and reading test.

Cleary’s long answer:

The first issue Chairman Alexander tackled in 2015 was the question of overtesting due to No Child Left Behind. Our first hearing on January 21, 2015 looked at this issue and it feels like every conversation was dominated by the view that No Child Left Behind and the teacher evaluation mandate in the waivers created a massive proliferation of testing.

The requirement under NCLB was that states had to conduct annual tests in reading and math in grades three through eight and once in high school, and a science test in each of the grade spans 3-5, 6-8, and 9-12. That resulted in a federal requirement of 17 tests over a student’s 10 years spent in school from grades 3-12.

But the accountability system of NCLB was linked almost solely to the testing requirement. If student test scores didn’t meet federal requirements, federal sanctions were applied to the school in a one-size-fits all approach.

Seeing this issue, Sen. Alexander came to the conclusion that the federal requirement for testing wasn’t necessarily the problem, it was the accountability system that was attached to it.

With that in mind, we decided to focus on reducing the federally determined high stakes attached to the tests—creating an environment where states could reduce the extra tests they were administering and, most importantly, develop their own accountability system to judge whether schools and teachers were succeeding in educating students.

Through testimony we learned that states and school districts were creating and administering dozens or even hundreds of extra tests to ensure that they were on track for all students to perform well on the annual test required by the law and the teacher evaluation mandate in the waivers. This outcome is almost expected because the annual test became almost a death penalty moment for schools—if you didn’t perform according to the plan, you faced severe federal sanctions. NCLB became a “punish your way to success” accountability system.

In ESSA, states have much more freedom to determine whether a school is succeeding or failing. Tests do not have to be the only measure of performance.

A state has to include test results, graduation rates, English proficiency, and another measure of school quality or student success in its accountability system. If a state chooses, it could also include non-academic measures having nothing to do with tests.

But how much each of these indicators count in the accountability systems is up to the states, and the Secretary is prohibited from regulating precise numbers or even ranges of weights in section 1111(e)(1)(B)(iii)(IV) of the new law.

So now states have the flexibility and responsibility to determine how to establish an accountability system. What matters to Tennessee may differ from what matters to Minnesota. Some states may indeed keep all of their tests and the high stakes associated with them, while others will reduce testing and reduce the amount that tests count in accountability systems—but the key with ESSA is that it is entirely up to the states to decide what to do.

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This is Part 2, from Ravitch’s blog:

Q) The stakes attached to testing: Will teachers be evaluated by student standardized test scores, as former Education Secretary Arne Duncan demanded and as the American Statistical Association rejected? Will teachers be fired because of ratings based on test scores?

Cleary’s short answer:

The federal mandate on teacher evaluation linked to test scores, as created in the waivers, is eliminated in ESSA.

States are allowed to use federal funds to continue these programs, if they choose, or completely change their strategy, but they will no longer be required to include these policies as a condition of receiving federal funds. In fact, the Secretary is explicitly prohibited from mandating any aspect of a teacher evaluation system, or mandating a state conduct the evaluation altogether, in section 1111(e)(1)(B)(iii)(IX) and (X), section 2101(e), and section 8401(d)(3) of the new law.

Cleary’s long answer:

Chairman Alexander has been a long advocate of the concept, as he calls it, of “paying teachers more for teaching well.” As governor of Tennessee he created the first teacher evaluation system in the nation, and believes to this day that the “Holy Grail” of education reform is finding fair ways to pay teachers more for teaching well.

But he opposed the idea of creating or continuing a federal mandate and requiring states to follow a Washington-based model of how to establish these types of systems.

Teacher evaluation is complicated work and the last thing local school districts and states need is to send their evaluation system to Washington, D.C., to see if a bureaucrat in Washington thinks they got it right.

ESSA ends the waiver requirements on August 2016 so states or districts that choose to end their teacher evaluation system may. Otherwise, states can make changes to their teacher evaluation systems, or start over and start a new system. The decision is left to states and school districts to work out.

The law does continue a separate, competitive funding program, the Teacher and School Leader Incentive Fund, to allow states, school districts, or non-profits or for-profits in partnership with a state or school district to apply for competitive grants to implement teacher evaluation systems to see if the country can learn more about effective and fair ways of linking student performance to teacher performance.

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This is Question 3 from Ravitch’s blog:

Q) What about the bottom 5 percent of schools by test scores? There is always a bottom 5 percent. Close them and another group will be the bottom 5 percent. What does the law say about the way these schools are treated?

Cleary’s answer:

States are required to identify the lowest performing 5 percent of schools every 3 years, based on the state’s individual accountability system. From there, a state will decide what to do about helping those schools improve. We ended the NCLB model of prescribing one-size-fits all solutions to apply to poorly performing schools, and we ended the requirement that states determine which schools are poorly performing based just on the federally required tests.

ESSA does not require states to close the schools in the 5 percent category, or convert them to charters, or fire the teachers or the principal, or any of the sanctions required under NCLB. States will now have the flexibility to determine what to do about these schools. In fact, the law explicitly prohibits the Secretary from specifying how states identify the bottom 5 percent of schools and any school improvement strategy or activity that a state or school district uses to improve those schools in section 1111(e)(1)(B)(iii)(V) and (VI) of the new law. Some states will choose to keep the existing types of sanctions, others will take entirely different approaches, but the key issue is that it is now for the state—and not Washington, D.C—to decide what to do about these schools that are struggling with improving student achievement.

Additionally, the law does not require that a new bottom 5 percent of schools be identified every 3 years. States determine what schools are identified as the bottom 5 percent, and some of these schools may still be in the bottom 5 percent three years later. All decisions about identification of schools are left up to the states.

There will be more questions and answers in the coming days. Stay tuned.