Senate HELP Committee Hearing on ESSA Implementation

The Senate Health, Education, Labor, and Pensions (HELP) Committee, chaired by Senator Alexander (R-TN) held a hearing to discuss newly appointed Secretary King’s plans for how the U.S. Department of Education (the Department) intends to implement the Every Student Succeeds Act (ESSA) through rulemaking, guidance, and technical assistance on April 12. The hearing was mainly focused on the current areas of ESSA that are currently in the negotiated rulemaking process, including the supplement not supplant provisions in Title I, accountability for subgroups of students, and the authority of the Department to enforce these provisions. Unlike the Secretary’s confirmation hearing, Senators drilled down on specific issues with ESSA implementation and staunchly expressed their concerns: Republicans about the Department going too far with regulations; and Democrats about the Department’s regulatory and enforcement authority to uphold the law. The Secretary also offered a regulation timeline: early spring summer — accountability regulations out for public comment; fall — regulations on state plans and innovative assessments out for comment; and possible regulations on homeless and foster care students, and ELLs. He indicated his main goal with as having all regulations completed by the end of the year.

Witness List:

  • Dr. John King, Secretary, Department of Education

Opening Statements

Chairman Alexander (R-TN) opened the hearing by explaining that the Senate HELP Committee acted fast to confirm Secretary King’s nomination because it felt it was important to have an appointed secretary to implement ESSA according to the intent of Congress. He added that, “it was equally important for accountability purposes” when the Department was not implementing ESSA according to law or Congressional intent. The Chairman said that Congress succeeded in passing the historic ESSA because schools, local districts, and local school boards were tired of Washington telling them what to do when it comes to education. Alexander expressed frustration that the Department was already undoing what Congress accomplished by ignoring the law and issuing regulations that do not comply with ESSA––just 4 short months after the law was enacted. Specifically and most egregiously, Alexander complained that “the comparability regulations attempted by the Department do not coincide with the intent of the law and would be very costly to school districts” and said these proposed regulations are expressly against the law.

Ranking Member Murray’s (D-WA) opening remarks were brief, but in them she said “the new law must include serious protections for underserved students” and made very clear that the Department does in fact have the “authority and responsibility to implement the law and issue guidance and regulations.”


Secretary King’s Testimony

Secretary King acknowledged the hard work of Congress to enact a new and improved education law that strikes a balance between upholding the federal commitment to upholding the civil rights aspects of ESEA while moving away from a one-size-fits all governmental approach. In his written testimony, he highlights in detail the improvements ESSA makes to the education system, including setting high expectations for students and schools, investing in state and local innovation, and encouraging smarter approaches to testing and accountability. In his opening remarks, he said that ESSA advances equity by maintaining dedicated resources that improve low performing schools and includes provisions for schools that done ensure progress for all student groups. He also repeated several times that ESSA includes the necessary federal guardrails to uphold the civil rights aspects of the law.

As for the Department and its role in ESSA implementation, he stated the role is to support states and local districts, ensure transparency, and provide the safeguards through regulations that provide equity to all students. King said that the Department plans to issue guidance in the summer or fall that pertain to the most vulnerable students and will ensure that states and districts are using the federal funding opportunities to supplement, not supplant, investments in education. However, King stated that: “The Department is engaging in this process with an understanding that we cannot, and indeed should not, attempt to provide guidance or regulations for every area of the law where ambiguity exists. We are focusing on the things that matter the most.” The areas the Department has expressly stated are priorities include assessments; accountability; and the equitable allocation of resources. In closing his remarks, Secretary King assured Congress that the Department “will continue to identify opportunities to support our states and districts through regulations, guidance, and technical assistance where it is most useful.”


Question and Answer Portion of the Hearing

Supplement, not supplant, provisions and the comparability provision

By far, the most contentious part of the hearing was the discussion around the supplement, not supplant, provisions in ESSA, which require state and local districts to invest funds in education that supplement the federal investment rather than using federal funds to replace those investments. Chairman Alexander brought up this issue in his opening remarks but drilled down specifically by asking King about the Department’s proposed rule that would require states to include teacher salaries in their assessments of state and local education spending. Alexander explained that Congress specifically prohibited this requirement in ESSA and chastised King for trying to slip it into the supplement, not supplant, draft regulations, saying that he was explicitly sidestepping the intent of the law. Secretary King attempted to explain multiple times that the comparability language included in the draft regulations was meant to clarify the supplement and supplant provisions, and ensure districts are investing in education. This answer was completely unsatisfactory to Alexander who expressly told the Secretary that in addition to attaching appropriations riders to block the regulations from taking effect, he also plans to “use every power of Congress to implement the law the way it was written by Congress.”

In the Secretary’s defense, Senator Bennet (D-CO), whose failed amendment to ESSA would have done the same thing Secretary King’s proposed regulation would do, said that dealing with the Title I funding issue was problematic in his state. He explained that it the United States is one of 3 countries where the federal government spends more money on their affluent students than those in poverty––and cited the confusion around Title I spending as one of the main reasons. The Secretary again said these provisions are not meant to change the Title I funding structures, but are there to provide clear guardrails to districts about education investments.

Senator Warren (D-MA) also brought up the issue of holding states and districts accountable for investing in education when “billions of federal taxpayer dollars are being spent on education.” She said that she, and many other Senators, “voted in favor of ESSA on the express condition that the Department would uphold and enforce the law” and said federal dollars must provide additional dollars for educational resources, not replace state and local resources. King assured Senator Warren that the Department intends to review and approve state plans, maintain equity and access, and provide clear guidelines to states and districts.


Department of Education’s regulatory and enforcement authority

In addition to the concerns about how the Department will ensure states and local districts are investing their share of dollars in education, many Senators were concerned about how the Department would ensure that the needs of the underserved and the lowest performing students were met. Senator Murphy (D-CT) stated that the Department has the responsibility to enforce the law and said states and locals need technical guidance on how to comply with the broad areas of ESSA that might need regulatory clarification. Secretary King agreed with Sen. Murphy and said that regulations are a way to ensure that there are clear guardrails for states and districts to follow that help them uphold the intent of the law. Later, when Ranking Member Murray asked why is was so critical that the Department have the authority to maintain and enforce ESSA, the Secretary noted the Department’s role in ensuring the law lives up to its original purpose and legacy as a civil rights law.

A couple of Senators asked very specific questions about the Department’s role in implementing certain aspects of ESSA. Senator Franken (D-MN) asked about how the Department plans to tackle the issue of foster youth switching schools, stating “sometimes school is the only constant thing these children have.” Secretary King assured Sen. Franken that he will continue to work with him on the provision to allow foster kids to remain in the schools of their choice, as this issue is personal to the Secretary, and said the Department is working with Health and Human Services to issue guidance on the issue. Senator Whitehouse (D-RI) wanted to know why the Department helped Congress water down provisions in ESSA that streamlined the innovation in schools initiative, which he has championed over the years. According to the Senator, schools that are ready to innovate are often slowed down or stopped by the need to get local board approval, state approval, and then finally federal approval. Secretary King said he was supportive of innovations and mentioned there are plenty of opportunities within ESSA for schools to innovate, including ways to improve schools and curriculums. Lastly on the very individualized questions, Senator Cassidy once again asked how the Department is specifically working with states and local districts to address the needs of students with dyslexia. Much to his chagrin, Secretary King gave what Cassidy said was a “canned and blanket answer” by stating the Department has issued guidance on the area for locals to follow if they so choose.


Technology and Testing Issues

The only mention of testing and technology that came up during the hearing was Senator Murkowski’s (R-AK) concerns regarding Alaska’s recent statewide assessment failures. The Senator explained that the entire state had to stop assessments halfway through the season “due to a series of system and statewide failures and anomalies in multiple districts.” She explained that malfunctions such as skipped questions, no sound on the text to speech applications, and shoddy broadband led to system crashes and unsaved answers. After many student answers went missing and students were forced to take the test multiple times from the beginning, the state cancelled the assessments completely. Senator Murkowski wanted assurances from the Department that the cancelation would not result in penalties to the state and that it would not compel the state to resume testing––as she is concerned with the validity of the results if mandated to resume after total system failure. She noted that Nevada had gone through the same trouble and said she expected her state to be treated fairly. Secretary King said he had already reached out to all of the key stakeholders, including the vendors, and assured Senator Murkowski that the Department will work quickly to resolve the issues. However, he did mention that Nevada quickly did everything it could to resume testing after the errors and encouraged Alaska to do the same.

In his concluding remarks, Alexander asked Secretary King to forecast the scope and timeline for remaining ESSA regulations. King’s timeline included: accountability regulations in the early spring or summer for public comment, regulations on state plans and innovative assessments out for comment in the fall, with the goal of having all regulations completed by the end of the year so states can be ready to complete ESSA implementation next year. In addition he said the Department might issue regulations on homeless and foster care students, and ELLs.

Source: Bernstein Strategy Group