Here is a critique of the rules that the Department of Education has proposed to implement regarding the “accountability” provisions of the new Every Student Succeeds Act,  the K-12 education law that Congress passed last December to replace the 2001 No Child Left Behind law.

One of the reasons that Congress passed the ESSA — eight years later than scheduled — was because many in the education world had come to think that the Obama administration had become too prescriptive and heavy-handed in education policy, which traditionally has been left to local and state agencies. The proposed rules include provisions that critics fear will allow some of the biggest problems of NCLB to continue and allow the department to dictate to states what they must do on issues such as standardized testing for “accountability” purposes.

This post looking at the draft rules was written by Monty Neill, executive director of the National Center for Fair and Open Testing, known as FairTest, a nonprofit organization that works to end the misuses of standardized testing and to ensure that evaluation of students, educators and schools is fair, open, valid and educationally sound.

By Monty Neill

While the accountability provisions in the Every Student Succeeds Act (ESSA) are superior to those of No Child Left Behind, the Department of Education’s draft regulations intensify ESSA’s worst aspects and will have the effect of perpetuating some of NCLB’s most damaging practices.

The draft regulations over-emphasize testing, mandate punishments not required in law, and continue federal micro-management. When the department makes decisions that should be set at the state and local level in partnership with local educators, parents, and students, it takes away local voices that ESSA restores. All of this will make it harder for states, districts and schools to recover from the educational damage caused by NLCB – the very damage that led Congress to fundamentally overhaul NCLB’s accountability structure and return authority to the states.

The Education Department must scrap five specific requirements in its draft regulations, as explained below. If it does not, Congress must ensure the administration follows the letter and spirit of the new K-12 education law.

Most egregiously, the department would require states to lower the ranking of any school that does not test 95 percent of its students or to identify it as needing “targeted support.”  No such mandate exists in ESSA. In fact, this provision violates explicit statutory language that ESSA does not override “a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments.” This regulation appears designed primarily to undermine the growing resistance to the overuse and misuse of standardized exams.

Recommendation: The department should simply restate ESSA’s language allowing the right to opt out as well as its requirements that states test 95 percent of students in identified grades and factor low participation rates into their accountability systems. Alternatively, the department could write no regulation at all. In either case, states should decide how to implement this provision.

Second, the department transforms ESSA’s requirement for “meaningful differentiation” among schools into a mandate that states create “at least three distinct levels of school performance” for each indicator. ESSA does require states to identify their lowest performing five percent of schools as well as those in which “subgroups” of students are doing particularly poorly. But neither provision necessitates creation of three or more levels. This proposal serves no educationally useful purpose. Instead, it pressures schools to focus on tests to avoid lower rankings. Performance levels are also another way to attack schools in which large numbers of parents opt out.

Recommendation: The regulations should scrap any reference to performance levels. States are capable of deciding how to identify low-scoring schools. Simply reporting school results establishes ESSA’s “meaningful differentiation.”

Third, the department’s draft regulations mandate states to combine multiple indicators into a single “summative” score for each school. As Rep. John Kline, chair of the House Education Committee, pointed out, no such requirement is included in ESSA. Summative scores are simplistically reductive and opaque. They encourage the sort of flawed school grading schemes promoted by diehard NCLB defenders.

 Recommendation: The department should drop this draft regulation. Instead, it should allow states to decide how to use their indicators to identify schools and whether to report a single score. Even better, it should encourage states to drop their use of levels, which ESSA does not require.

Fourth, DoE proposes that a state’s academic indicators together carry “much greater” weight than its “school quality” (non-academic) indicators. Members of Congress differ as to the intent of the relevant ESSA passage. Some say it simply means more than 50 percent, while others claim it implies much more than 50 percent. The phrase “much greater” is likely to push states to minimize the weight of non-academic factors in order to win plan approval from DOE, especially since the overall tone of the draft regulations emphasizes testing.

 Recommendation: The regulations should state that the academic indicators must count for more than 50% in how a state identifies schools needing support.  

In the preceding instances, the draft regulations also overstep the limits ESSA placed on the department’s ability to control state accountability plans.

Fifth, the department would require states to use 2016-17 data to select schools for “support and improvement” in 2017-18. This leaves states barely a year for implementation, too little time to overhaul accountability systems. It will encourage states to keep using a narrow set of test-based indicators and to select only one additional “non-academic” indicator.

Recommendation: The regulations should allow states to use 2017-18 data to identify schools for 2018-19. This change is entirely consistent with ESSA’s language. 

Lastly, FairTest is concerned that an additional effect of these unwarranted regulations will be to unhelpfully constrain states that choose to participate in ESSA’s “innovative assessment” program.

While ESSA’s accountability provisions are better than NCLB’s, the new law’s continuing mandate to test all students in grades 3-8 every year does little to help children who are suffering from weak schools or class, race and other social inequities. DoE draft regulations would significantly worsen the law.

The Department of Education must scrap the draft regulations identified here. If it does not, Congress must act to rein in DoE’s efforts to violate the letter and spirit of ESSA.

– FairTest submitted its comments to the DoE, which are similar to this blog and available with action recommendations at

– To submit comments on the regulations, go to!docketDetail;D=ED-2016-OESE-0032.