NYSUT is deeply disappointed and troubled with the U.S. Department of Education's draft regulations for the Every Student Succeeds Act (ESSA) and has submitted detailed comments expressing our objections and specific recommendations for changes in the rule making.
As our letter states, we believe several of the proposed regulations do not reflect the intended partnership with states, but instead represent a "top-down, federally driven approach which is both contrary to the President's words and the letter of the ESSA law."
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Docket ID: ED-2016-0ESE-0032
Dr. John B. King, Jr.
Secretary of Education
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202
Dear Secretary King:
The following represents NYSUT's public submission of comments on the draft regulations released by the U.S. Department of Education in June for public comment regarding the Every Student Succeeds Act (ESSA).
ESSA provides significant opportunities to states and school districts by removing the shackles of NCLB and the related waivers. At the bill signing ceremony, the President stated that "this bill [ESSA] makes long-overdue fixes to the last education law, replacing the one-size-fits-all approach to reform with a commitment to provide every student with a well-rounded education. It creates real partnerships between the states, which will have new flexibility to tailor their improvement plans, and the federal government; which will have the oversight to make sure that the plans are sound."
I am concerned that several of the proposed regulations do not reflect this "real partnership between the states" but instead represent a top-down, federally driven approach which is both contrary to the President's words and the letter of the ESSA law.
I expect that USDE will modify the proposed regulations as discussed below to comply with the provisions of ESSA and to allow states to have the appropriate flexibility to ensure that we do not have a one-size-fits-all approach to reform as we move forward with our public education system.
Issue: Implementation timeline.
The ESSA law allows for a 2017-18 pilot year for the new accountability systems that will be developed by states. However, the proposed regulations require that all states begin identifying schools in the 2017-18 school year for support and improvement using 2016-17 school year data. This limits the ability for states to develop a thoughtful, multiple measurement systems that uses any indicators different than the current state-level tests that are available. This compressed timeframe will prevent states from engaging in a thoughtful research-based approach to new accountability systems as required by ESSA.
Recommendation: Section 200.19(d) be amended to allow states to have their accountability systems up and running in 2017-18, and first used to identify schools for the 2018-19 school year.
Issue: Student participation rates.
ESSA provides that although 95 percent student participation on federally required exams is required, it is up to states to decide how low student participation rates will be factored into their accountability system. The proposed regulations require specific, punitive actions be taken by states against schools that do not meet the 95 percent participation rate. The original intent of the mandatory 95 percent participation rate was to ensure that local education agencies did not discourage lower-performing students from taking these federally required tests. This is no longer the source of low student participation rates in New York State schools.
The opt-out movement, which had its genesis during your tenure in New York State, has spread across the country. These parents are opting their young children out of tests which they deem inappropriate. Based on current data, hundreds of schools in New York State would fall below the 95 percent participation rate levels due to parents opting their children out of state exams.
The language of the law is clear: states must determine what actions they wish to take as part of their state accountability system in those schools which have student participation rates of less than 95 percent on federally required exams. Instead of complying with the law, the draft rule proposes to use low participation rates as a cudgel against schools by requiring states to take punitive actions against these respective schools. Further, the draft rule appears to extend the 95 percent requirement to each student subgroup. The practical effect of this proposal would be to penalize schools even if a small handful of parents in certain subgroups opt out their children of federally required tests.
Recommendation: Delete Section 200.15(b)(2) that specifies actions that must be taken against schools that do not meet the 95 percent participation requirement.
Issue: Calculation of graduation rates.
The ESSA law clearly states that a high school must be identified for interventions if its graduation rate is below 67 percent, and allows the graduation rate calculation for each state to include more than a four year cohort. The proposed rule ignores the law and requires that graduation rates must be calculated using only a four year cohort. Further, schools that are successful at supporting struggling students to enable them to meet graduation requirements instead of dropping out after four years should be recognized as achieving a positive outcome rather than being punished.
Recommendation: Section 200.13(b)(2)(ii)ofthe draft regulations should be modified to allow a state to calculate and use a graduation rate beyond four years for the purposes of measuring which high schools fall below the 67% graduation rate level.
Issue: Overly prescriptive requirements for state accountability systems.
The regulations violate the statutory prohibition against setting weights of indicators used in state level accountability system, which will discourage innovation and add additional requirements beyond the authority that the statute provides to the Secretary. ESSA provides an opportunity to move beyond identifying struggling schools based on low test scores, which is a symptom of a problem, to one that provides better information to understand and target the root causes of why a school is struggling. To do this, the accountability system must include in a meaningful way, the indicators of school quality and student success that address conditions of teaching and learning. States should be supported by USDE in their efforts to create innovative accountability system that measure true student learning. Unfortunately, these draft rules will have the opposite effect.
ESSA requires the states to develop an accountability system of meaningful differentiation of schools (Section llll(c)(4)(C)). However, the draft regulations require the states to provide at least three levels of performance for every indicator for every school via the accountability system, a summative accountability rating for each school, and evidence that any measure of school quality or success indicator be supported by research.
Recommendation: Delete section 200.18(d) that goes beyond the statutory authority by creating conditions for how school quality or student success indicators will be weighted. Delete the requirement in proposed section 200. 14 d), that its ''measures of Academic Progress and School Quality or Student Success be supported by research that performance or progress on such measure is likely to increase student achievement or graduation rates" as a requirement that goes beyond the authority granted to the Secretary via the ESSA statute.
Recommendation: Delete the proposed requirement in section 200.18(b)(4) that the accountability system must be used to produce a single summative rating for each school, this is not authorized by the statute, nor conducive to creating innovative accountability systems.
Issue: Lack of flexibility for schools identified for targeted support.
ESSA requires identification of the lowest performing five percent of schools. The draft regulations will also require school identification based on subgroup status, which will have the effect of exceeding the five percent limit as set by ESSA. The draft regulations also call for interim measures that require greater rates of academic improvement for lower achieving student subgroups. ESSA states that USDE should not prescribe the rate of progress of any subgroup of students in meeting state goals.
Recommendation: Delete section 200.19(b)(2), which specifies how schools would be identified for targeted support.
Issue: Defining "ineffective" teachers.
The regulations require states to submit a definition of ineffective teachers. This is a back-door approach to continuing the federal involvement in the teacher evaluation process that was irrefutably rejected by ESSA. The statute directs the Secretary to not "mandate, direct, or control… the development, improvement, or implementation of elements of any teacher, principal, or other school leader evaluation system." As such, the draft rule is contrary to this statute and should not remain as part of the final rulemaking.
Recommendation: Since the statute does not require that states define "ineffective teachers", and there are prohibitions against the Secretary mandating or prescribing anything related to such state definitions. Therefore, Section 299.18(c)(2) should be stricken from the final regulations.
NYSUT concludes that the draft rules as highlighted do not reflect ESSA and the promise of the law. Unfortunately, in several areas the draft rules embrace a test, rank, and punish system of school accountability. This approach was rejected by ESSA and it is my contention that USDE should closely review the language of ESSA and produce regulations consistent with Congressional intent and the letter of the law.
Our members work tirelessly on behalf of their students across New York State. Teachers and school related professionals in classrooms every day dedicate their professional lives to educating all children. The daily actions of these professionals ensure the civil rights of all our children by providing them with the knowledge and skills to become productive members of society. We deserve a new accountability system that will support schools in this critical work.
Sincerely yours,
Karen E. Magee
NYSUT President
KEM/CRF/PA/cmg