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SEE YOU IN COURT?: Disagreements in Congress Over Implementation of New Education Law

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“While we were writing this law we were deliberate on granting the department the authority to regulate on the law and hold schools and states accountable for education," said U.S. Senator Patty Murray.

In the weeks since the Every Student Succeeds Act (ESSA) was signed into law to replace the No Child Left Behind Act, congressional Republicans, especially Senate Health, Education, Labor, and Pensions (HELP) Committee Chairman Lamar Alexander (R-TN)—a former U.S. Secretary of Education—have warned the U.S. Department of Education (ED) to follow the letter of the law when it begins implementing ESSA.

Last week, during an April 12 Senate HELP Committee hearing on ESSA featuring U.S. Secretary of Education John King, Alexander told King that ED had overstepped its bounds in some of its proposed regulations around the new education law and warned that consequences could be forthcoming if ED continued its current path.

“Already we’re seeing disturbing evidence that the Department of Education is ignoring the law that the twenty-two members of this committee worked so hard to craft,” Alexander said. “I’m smart enough, and I believe there are others too, to use every power we have to make sure the law is implemented the way we wrote it, including our ability to overturn such rules when they become final, and including using the appropriations process. And if you try to force states to follow these regulations that ignore the law, I’ll encourage them to request a hearing, which they have a right to do with the department. And if they lose, I’ll encourage them to go to court.”

In response, HELP Committee Democrats stressed that the new education law gave ED important oversight to ensure educational equity, especially for students who are traditionally underserved, while making sure that the newfound flexibility granted to states was not abused.

“The Every Student Succeeds Act gives states more flexibility, but it also includes strong federal guardrails for states as they design their accountability systems,” said Senator Patty Murray (D-WA), the committee’s highest-ranking Democrat. “While we were writing this law we were deliberate on granting the department the authority to regulate on the law and hold schools and states accountable for education.”

Senator Elizabeth Warren (D-MA) agreed. “I voted or this law on the explicit agreement that the Department of Education would enforce its accountability provisions through meaningful regulations,” she said. “That’s clear in the language of the law, and I think it’s also good policy. When the federal government gives the state billions of taxpayer dollars to improve education for our most vulnerable kids then it’s critical that the Department of Education ensure that those states actually use the money to accomplish those ends. This is one of the conditions on which a lot of senators voted for this law, the condition on which many House Democrats voted for this law, and the condition on which the president of the United States signed this bill into law.”

In a breakfast meeting with reporters the day after the hearing, King “noted that the regulations that irritated Alexander are only a proposal, for a committee of advocates, experts, and educators to consider through a process known as ‘negotiated rulemaking,’” Education Week reports.

Already, ED has held two series of negotiated rulemaking, with the third and final set of meetings scheduled for this week. In advance of those meetings, ED released revised proposed regulations on April 15 relating to assessments and the “supplement not supplant” provision in ESSA that governs the use of Title I funds. If the negotiated rulemaking committee can come to consensus, the agreed-upon regulation will be placed in the Federal Register and made available for public comment by the U.S. Congress and other interested parties. Proposed regulations from the ED on other matters, most notably accountability, are forthcoming.

Video and testimony from the Senate HELP Committee’s April 12 hearing is available at http://1.usa.gov/1WA3uqL.

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