States and the Trump Administration Should Stay the Course with ED’s Accountability Regulations
December 19, 2016 05:05 pm
Within the last three weeks, the U.S. Department of Education (ED) issued the long-awaited final regulations to implement the accountability provisions of the Every Student Succeeds Act (ESSA). The question on everyone’s mind is with the Trump administration taking the helm in just a matter of weeks, do these regulations really matter?
The short answer is no one really knows.
The slightly longer answer—it’s in everyone’s interest for these regulations to matter. Here’s why.
ED’s final accountability regulations represent wins for everyone. For example, they provide certainty, stability, and the extended implementation timeline states requested. Back in July, the Council of Chief State School Officers and many other organizations called on ED to push out the implementation timeline. ED’s initial timeline was overly aggressive and, for many states, would not have provided sufficient time to consult meaningfully with parents, teachers, civil rights organizations, and others in the development of their plans. The time constraints also might have resulted in the implementation of policies that did not align with ESSA or ED’s interpretation of the law, complicating the transition to a new system that is complicated enough on its own.
ED listened. The final regulation allows states to submit their consolidated state plans by April 3, 2017, or September 18, 2017, slightly later than the March 2017 or July 2017 deadlines originally proposed. The regulation also extends the timeline states have for identifying schools for support until School Year 2018–19 or 2019–20, depending on the reason for identification.
The final accountability regulation grants states greater flexibility on more than just the timeline, though. ED also modified its initial requirement for all schools to receive a summative score and simplified the definition of a school with a “consistently underperforming” subgroup of students. The regulation provides flexibility in other areas of policy as well. (For additional information on these and other provisions in the accountability regulation, see the Alliance’s fact sheet.)
The regulation gives states the certainty and flexibility they need to move forward with ESSA implementation. For states and other parties that agree, it would be wise to ensure that their congressional delegations and the incoming administration know their views on this matter because several of the scenarios being discussed in Washington, DC, regarding the regulation’s fate could result in uncertainty, confusion, and delays in ESSA implementation. Here are a few of the possible paths forward for the regulation:
1. Congressional Review Act: The U.S. Congress could use fast-track procedures under the Congressional Review Act (CRA) to rescind the regulation. The CRA allows Congress to nullify a regulation within sixty legislative days of the date the regulation is published in the Federal Register by passing a “joint resolution of disapproval,” which requires a simple majority (e.g., 51 out of 100 senators) to pass.
If the new administration wants to reissue the regulation, it would have to do so using the same lengthy process required under the Administrative Procedure Act that the Obama administration had to use, including issuing a formal notice in the Federal Register and providing a comment period—unless the new administration could justify a waiver of notice and comment based on time constraints. Actually, the process for reissuing a regulation could be more complicated than the development of the initial one because the CRA bars issuance of another regulation “substantially similar” to the rescinded regulation absent a new legislative authorization. This prohibition has not been interpreted by any court or any other authority, so it’s unclear what impact this could have on the process.
2. The incoming Trump administration could amend, rescind, or replace the accountability regulation. Doing so would delay the implementation of ESSA considerably and cause even more uncertainty as the new administration develops its ESSA policy. It would be challenging for the incoming administration to issue a new regulation in a timely manner, not only because of the legal procedures involved, but because the administration would need to make policy decisions on details of the law despite the fact that the administration still will be hiring key personnel during the first few months of 2017.
3. The incoming Trump administration could pause or delay the implementation of the regulation by providing notice in the federal register. It could avoid a comment period with a good cause justification (typically based on timing needs). The new administration could then move forward with ESSA implementation through policy letters and nonregulatory guidance, leaving interpretation of the law to state and local education agencies. However, specific provisions in ESSA call upon ED to develop parameters or criteria for implementation. These provisions could constitute rules that would be subject to the rulemaking process under the General Education Provisions Act and Administrative Procedure Act.
4. The Trump administration could keep the regulation, but do little to enforce it.
Rescission of the regulation likely would result in extreme confusion and could significantly disrupt state and local efforts to implement the law. Even if the Trump administration cited limited time for states to submit their plans as a justification to waive rulemaking, that determination and the rescission action may be subject to court challenge. Moreover, if the regulation is nullified, the key victory states achieved in the current regulation—delayed implementation of the law until SY 2018–19—would be called into question. ESSA’s statutory language calls for the accountability portion of the law to take effect beginning with SY 2017–18, a timeline that states and ED are ill prepared to implement. Finally, implementing ESSA without the clarity provided by a regulation could put states and districts at increased risk for lawsuits, something that civil rights groups may be very willing to attempt under the next administration and something states and districts certainly would rather avoid.
Transitions are complicated. Uncertainty is to be expected, though with this transition we can expect more uncertainty than usual. The Obama administration’s accountability regulation may not be perfect, but it provides the pathway and timeline for implementation that states and others have been seeking. These regulations may go unenforced, but that doesn’t mean they shouldn’t be implemented. States can foster certainty, stability, and equity by staying the course.
Phillip Lovell is vice president of policy development and government relations at the Alliance for Excellent Education.