Feb 15

What will House resolutions of disapproval mean for ESSA implementation?

By Ellen Fern, Managing Director at Washington Partners

On Tuesday, February 7, the House of Representatives voted to overturn Obama administration regulations regarding accountability under the Every Student Succeeds Act (ESSA) as well as regulations relating to teacher-preparation programs.

H.J.Res.57, which would overturn regulations regarding accountability under ESSA, passed by a vote of 234-190. A few more Democratic members signed on to pass the resolution overturning teacher-preparation regulations, H.J.Res. 58, by a vote of 240 – 181. Both regulations were subject to the Congressional Review Act (CRA), which allows lawmakers to overturn regulations from the previous administration within a certain period of time. 

The CRA has never been used on education regulations, so if the regulations are overturned via a similar vote in the Senate, it is unclear how the Department of Education would proceed as far as issuing guidance or new regulations. If the regulations are overturned, the Department will be barred from issuing “substantially similar” regulations on these two issues before lawmakers reauthorize the Every Student Succeeds Act and the Higher Education Act, respectively. At the very least, if the accountability regulations are overturned, the deadlines of April 3 or September 8 for states to submit ESSA plans for Education Department approval, with implementation to start in the 2018–19 school year, would most likely disappear, too. 

In remarks on Tuesday before the House vote, Rep. Todd Rokita (R-Ind.), Chairman of the House Subcommittee on Early Childhood, Elementary, and Secondary Education, said he wanted to overturn the ESSA rules because they ran counter to the spirit of the law itself, which he said is designed to give state and district leaders more power. And he said getting rid of the rules would not impede states from shifting to ESSA, which will kick in for the 2017-18 school year, as they see fit. Both the National Governors Association (NGA) and the School Administrators Association (AASA) have supported the overturning of these regulations.

Critics of this resolution, including the NAACP Legal Defense and Education Fund, noted that this would affect the work states have already done to form new accountability systems. On the House floor Tuesday, Rep. Jared Polis (D-Colo.), Ranking Member of the House Subcommittee on Early Childhood, Elementary, and Secondary Education, said ditching the ESSA rules would be damaging and disruptive, not liberating, particularly for states that have worked for over a year to shift to the law. And he stressed that the Education Secretary’s hands would be tied as far as new regulations, noting “This resolution would undo all of that state-level work … creating mass chaos and uncertainty in public education, and destroy the civil rights safeguards that Republicans and Democrats worked so diligently to put in the Every Student Succeeds Act.”

Weighing in somewhere in the middle, Council of Chief State School Officers (CCSSO) Executive Director Chris Minnich said state leaders, who have already started meeting with stakeholders and writing their implementation plans, are less concerned with the politics of overturning the regulations than the basic question of what they should do next. It’s vital that states get clarity from the Department of Education once Congress acts, Minnich said: “Whatever the politics around the regulations are, states have to actually do a job, and they have to respond to this law.”

The Senate has not yet issued a similar resolution under the CRA to overturn the regulations; however, as they are in Executive Session this week, they likely would not be able to move a resolution until next week or later. The Afterschool Alliance will continue to track the developments of the CRA closely as more information becomes available.