For Teachers by a Teacher: "Close Reading" ESSA Proposed Regulations for Section 200.15

If you are new to learning about ESSA and are looking for an overview of the law prior to reading further, I recommend reviewing this resource created by ASCD: Comparison of the No Child Left Behind Act to the Every Student Succeeds Act.

The first section of proposed regulations I'm going to dive into is Section 200.15 and the hot topic of assessment and accountability. To be clear, this section of ESSA (Every Student Succeeds Act) regulations doesn't cover all of the aspects of assessment, but it is the primary section cited with regard to requirements to assess students, the Opt-Out movement, and all the pressures and stresses in between.

On the Federal Register, the proposed regulations for Section 200.15: Participation in Assessments and Annual Measurement of Achievement consist of the following elements:

• Current Statute (the language written and passed by Congress; approved by Obama)
• Current Regulations (prior to ESSA; these are from NCLB's updates to ESEA)
• Proposed Regulations (open for public comment through August 1, 2016)
• Reasons (The Department's explanation of proposed regs; inclusive of legal adjustments to adhere to the updated statute and reasoning for their choice of language and options provided)

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Here are some examples of claims I've seen about Section 200.15:

"Draft regulation 200.15: This would force states to intervene aggressively and/or fail schools in which more than 5% of students chose not to take the state tests. This violates the provision in ESSA recognizing 'a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments.'

"ESSA permits states to pass laws allowing parents to opt their children out of taking the state tests, the draft regulations would require states to harshly punish or label as failing, schools in which more than 5% of students opt out."

Please note, I'm choosing to not cite these quotes for two reasons:

1. These claims were made by education advocates whose intentions and experiences I respect. I do not want to question individuals, but the process of interpretation.
2. My primary concern is not who is critical of the proposed language but how we, collectively as educators and advocates, can increase our capacity to be informed in advocating for effective implementation and strategic adjustments if warranted. It is my opinion that some advocates are viewing proposed regulations as a mandate to impose the status quo, whereas I view them as a protection for students and subgroups who have been disenfranchised and/or dismissed through previous loopholes in the evolution of ESEA.

If I communicate nothing else, I want to stress that I've learned the most when I've referred to the statute text and read the language of proposed regulations, in full, before passing judgment or buying into an article's catchy headline or blogger's claim about ESSA. The reality is that ESSA is complex, at times seemingly contradictory. It is the outcome of bipartisan work and thus certain elements could easily be claimed as a win by both parties based on the ambiguity that allowed for consensus.

So, back to Section 200.15: Participation in Assessments and Annual Measurement of Achievement.

What does the (bipartisan) statute actually prescribe?
Section 1111(c)(4)(E) of the ESEA, as amended by the ESSA, requires each State, for the purpose of school accountability determinations, to measure the achievement of not less than 95 percent of all students, and 95 percent of all students in each subgroup of students, who are enrolled in public schools on the annual statewide assessments in reading/language arts and mathematics required by section 1111(b)(2)(B)(v)(I). The statute further ensures that this requirement is taken into account when determining proficiency on the Academic Achievement indicator by specifying that the denominator used for such calculations must include at least 95 percent of all students and 95 percent of students in each subgroup enrolled in the school. Each State also must provide a clear and understandable explanation of how the participation rate requirement will be factored into its accountability system.

Why does this matter?
In light of the opt-out movement in response to NCLB and concerns about over-testing and misuse of testing results, I totally get that people would be concerned about a Federal requirement to test at least 95% of students, inclusive and representative of all subgroups.

​Here's the thing…. the reason why this is such a big deal is that our country has a history of avoiding testing and/or lowering the bar for students we don't believe in. And while I know I just ended last sentence with a preposition, I also know that many of the students in my city don't know what a preposition is. That's not because they are inferior or incapable of understanding parts of speech; it's because of the implications of systemic inequities and biases. There's a reason that the most staunch advocates for assessing ALL children in public schools who receive Federal funds are Human and Civil Rights Attorneys and Advocates.

As much as I have grumbled about my students taking standardized tests each Spring, I respect that without accountability it's really easy to slip into lowering expectations for children. This absolutely does NOT mean that I think that our current assessment systems are flawless, nor that we are prioritizing all of the right things. But there is a historical justification for the need to legally assert that ALL means ALL (I intend to write more on this soon).

I know that the results of current statewide tests are not always considered valuable for every single student who takes them. However, I am also deeply passionate about the mathematical and statistical limitations of such tests (which I have voiced in countless settings). That said, I cannot be totally against annual standardized assessments, and here's why:

1. They are required by Federal Law.
2. When done well, they inform us about children in need of more.

Please note that I'm not saying more of what; perhaps more support in terms of accommodations or accessibility, or more training for their educators, or more individualized and quality services… no assessment trend alone can tell me what is needed, but I do believe that significant gaps do tell a story and we just need to figure out how to best listen and respond in a meaningful and impactful way.

Also, I can anticipate responses urging that students actually need "less" of something; less testing, less pressure to meet given standards, less time on certain priorities, etc. Although I think the response to that (perhaps hypothetical retort) should be saved for another day, I want to stress that I am not a skill & drill kind of teacher (please check out my class' recent week living and working on a farm).

​Back to the claims…
There is a narrative circulating that states will be required to harshly punish, intervene, or grade schools that do not meet the 95% threshold.

The reason for the 95% requirement is the historical harm done to subgroups deemed "less than" by a given LEA or SEA, in terms of systemic but not personal trends that resulted in disproportionate groups being diverted from participation in mainstream assessments and, at times, instruction. It is also based on the need for representative and comparable samples from subgroups in order for statistical analyses to be reliable for purposes of analyzing equity and impact.

Further, the proposed regulations do not require only "harsh" and penalizing type actions in response to not meeting the state-wide participation rate requirement. The proposed regulations for 200.15 state that SEAs would be required to take one of the following actions:

1. Assign a lower summative rating to the school, described in proposed § 200.18;
2. Assign the lowest performance level on the State's Academic Achievement indicator, described in proposed §§ 200.14 and 200.18;
3. Identify the school for targeted support and improvement under proposed § 200.19(b)(1); or
4. Another equally rigorous State-determined action, as described in its State plan, that will result in a similar outcome for the school in the system of annual meaningful differentiation under proposed § 200.18 and will lead to improvements in the school's assessment participation rate so that it meets the 95 percent participation requirement.

The proposed regulations further state that, if creating an improvement plan, such a plan must be "developed in partnership with stakeholders, including parents, include one or more strategies to address the reason or reasons for low participation rates in the school and improve participation rates in subsequent years, and be approved and monitored by the LEA."

It's my opinion that this section's proposed regulations have been inaccurately misconstrued by some as being only and absolutely punitive should a state fall below 95% participation in the Federally required annual assessment and measure of academic achievement. The U.S. Department of Education, whom I do not view as infallible or efficacious as one could desire, has openly stated that this requirement (which is a part of statute) should be adhered to for the best interest of its students. This includes potentially revising or replacing a statewide assessment system to meet the demands of its students, families, and stakeholders. For example, in the context of a pervasive Opt-Out movement due to the opinion that an assessment is harmful or invaluable, this requirement would (hopefully) motivate a change based on public input.

In the Reasons section, it reads: "Given the critical importance of assessing all students and subgroups of students as part of providing a strong foundation for each component of a State's accountability system, and in ensuring that parents and educators have information to support all students in meeting the challenging State academic standards, we are especially interested in receiving public comment on additional or different ways than those articulated in the proposed regulations to support States in ensuring that low assessment participation rates are meaningfully addressed as part of the State's accountability system, either as part of annual meaningful differentiation of schools to increase transparency around assessment participation rates or as part of school-level actions to improve such rates."

I cite this because the opportunity for public comment on Federal regulations should, ideally, be constructive. My intention is to challenge the narrative that reading and responding to draft regulations for ESSA should inherently be viewed as a battle between bureaucracy and the best interests of children. I accept that there isn't a perfect answer, but I also believe that moving forward with the statute approved by Congress and caring for the children before us doesn't have to be a mutually exclusive process as we review and respond to proposed regulations.

Now that the school year in Boston has ended, I hope to write and reflect on the opportunities and constraints of ESSA. This isn't just because I was privileged to be involved in one of the nooks and crannies of its regulation drafting opportunities, but because this is the first federal update to ESEA since 2002 and I believe that it's a critical opportunity for educators and the American public to be involved in the future of our education system, the lives of our children, and the potential of our collective impact.

This past year (SY2015-16), I was away from my students more than I'd ever been before, even with the worst illnesses (and my family knows I've had my share of immune system challenges), I had never had so many days away from my students. When I was asked to participate as a member of the ESSA Negotiated Rulemaking Committee to work on draft regulations for Title I, Part A, I felt conflicted about spending more time away from my students and the chance to be involved with a rare but influential policy process.

In an effort to navigate the situation (and let's be honest, my internal conflict), I talked with my students about testing, NCLB, equity, and education policy. Although I'd previously had countless conversations with my students about their variability, growth, the use of different types of assessments, the role of setting goals, and how to be both wary of and resilient despite others' biases and judgements… I had more to learn from them and was heartened and inspired by my students' responses. They immediately related to the need to identify schools that didn't serve all students.

One boy commented, "At my old school, when I struggled they just kicked me out. I wanted to learn and they wouldn't let me back in. Here, you teach me how to deal with my struggles so that I can be included." He added, "When you had me 'take space' the other day I was afraid you weren't going to let me back into the lesson. I came here to learn and I know that's my chance and opportunity." I name that last quote because it shows how imperfect I am; I know that I can still, even inadvertently, negatively influence a child's outlook on what is possible.

I don't know if the proposed regulations for ESSA are the best for our children, but from my work at the local, state, and federal level I've learned that many education policies are in place to protect those who may feel lost, left out, or looked over. I hope that, together, we can review and provide feedback to inform:

1. Regulatory language that is in the best interest of ALL students.
2. Regulatory language that incorporates and encourages feedback from all stakeholders (students, communities, educators, and advocates).
3. Input to our respective agencies around meaningful guidance documents and examples, as well as systems and structures for ongoing meaningful collaboration.