Nick Krieger (@nckrieger):
The Every Student Succeeds Act ("ESSA"), Pub.L. 114-95, 129 Stat. 1802, which was signed into law by President Obama on December 10, 2015, requires the states to administer mathematics and reading assessments every year in grades 3 through 8. The ESSA also requires the states to test students in mathematics and reading at least once in grades 9 through 12.
Section 1111(c)(4)(E)(i) of the ESSA purports to mandate 95% participation by public school students on these state assessments. As I have written, there is a typographical error in § 1111(c)(4)(E)(i), and the provision actually refers to a nonexistent statutory subsection. For purposes of this post, however, let's just assume that the 95% participation mandate in § 1111(c)(4)(E)(i) is valid.
One of the major differences between the ESSA and its predecessor statute, the No Child Left Behind Act of 2001, is that the ESSA eliminates several federally mandated corrective measures and school intervention strategies, and returns significant control over the improvement of low-achieving schools to state and local education agencies. To this end, § 1111(e)(1)(B)(iii)(XI) of the ESSA expressly provides that the Secretary of Education may not promulgate any regulations prescribing the manner in which the states take into account or enforce compliance with the 95% participation mandate.
Well, guess what the Secretary of Education has done? Yep, that's right. In May, Secretary of Education John B. King, Jr. announced several proposed amendments to 34 C.F.R. § 200.15 that would (1) order the states to comply with the 95% participation mandate in a uniform manner, (2) require each state to implement one of several punitive reform measures for any school that fails to comply with the 95% participation mandate, and (3) direct any school that does not meet the 95% mandate to adopt an "improvement plan." See 81 Fed. Reg. 34540.
These proposed regulations plainly violate the intent of Congress as unambiguously expressed in the language of § 1111(e)(1)(B)(iii)(XI). Will anyone step forward to stop Secretary King from promulgating these illegal rules? Only time will tell.