[Senate Hearing 114-758]
[From the U.S. Government Publishing Office]
S. H. 114-758
ESSA IMPLEMENTATION IN STATES AND SCHOOL DISTRICTS: PERSPECTIVES FROM
THE U.S. SECRETARY OF EDUCATION
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
ON
EXAMINING EVERY STUDENT SUCCEEDS ACT IMPLEMENTATION IN STATES AND
SCHOOL DISTRICTS, FOCUSING ON PERSPECTIVES FROM THE SECRETARY OF
EDUCATION
__________
APRIL 12, 2016
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky ROBERT P. CASEY, JR., Pennsylvania
SUSAN COLLINS, Maine AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana
David P. Cleary, Republican Staff Director
Lindsey Ward Seidman, Republican Deputy Staff Director
Evan Schatz, Minority Staff Director
John Righter, Minority Deputy Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, APRIL 12, 2016
Page
Committee Members
Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 4
Burr, Hon. Richard, a U.S. Senator from the State of North
Carolina....................................................... 14
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 16
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado....................................................... 18
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 19
Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana... 21
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut.................................................... 23
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 25
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska.... 26
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 28
Witness
King, Hon. John B., Jr., Ph.D., Secretary, Department of
Education...................................................... 6
Prepared Statement........................................... 8
(iii)
ESSA IMPLEMENTATION IN STATES AND SCHOOL DISTRICTS: PERSPECTIVES FROM
THE U.S. SECRETARY OF EDUCATION
----------
TUESDAY, APRIL 12, 2016
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:07 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Lamar
Alexander, chairman of the committee, presiding.
Present: Senators Alexander, Murray, Burr, Murkowski,
Scott, Cassidy, Casey, Franken, Bennet, Whitehouse, Murphy, and
Warren.
Opening Statement of Senator Alexander
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order. Senator Murray
and I will each have an opening statement, and then we'll
introduce our witness. After our witness testimony, Senators
will have 5 minutes of questions.
Welcome, Mr. Secretary. Thank you for being here.
Mr. Secretary, I urged the President to appoint an
Education Secretary because I thought it was important to have
a confirmed Secretary accountable to the U.S. Senate when the
Department was implementing the new law fixing No Child Left
Behind. You've sworn to discharge your duties faithfully--
that's your oath of office--and you've said in hearings here
that you would, ``abide by the letter of the law.'' This
hearing is about whether your employees are doing that or not
doing that.
I don't think I need to rehearse the fact that this bill
passed by a huge margin, 359 to 64 in the House and 85 to 12 in
the Senate. The President signed it and called it a Christmas
miracle. The reason we were able to achieve such unusual
unanimity and consensus is, to put it bluntly, that local
school boards, classroom teachers, and States had gotten tired
of the U.S. Department of Education telling them so much about
what to do.
That wasn't just Republicans complaining or Governors
complaining. You often hear that kind of thing when it comes to
giving responsibility to those closest to the children. This
came from the school superintendents, from the National
Education Association, from the American Federation of
Teachers, from the chief State school officers--almost
everybody involved in education. There hasn't been a broader
coalition in a long time.
They objected to the fact that the Department had become a
national school board, telling Kansas what its academic
standards had to be, telling Tennessee how to fix failing
schools, telling Washington State how to evaluate teachers. The
legislation we passed not only got rid of those things, but we
went further in a remarkable way and have explicit prohibitions
on what a future Secretary might do.
This was all a dramatic change. It's called the biggest
devolution of responsibility for education from the Federal
Government to States in 25 years. It's not worth the paper it's
printed on if it's not implemented properly.
This is the second hearing in what will be at least six
hearings on oversight of the implementation of the new law.
Already, we're seeing disturbing evidence that the Department
of Education is ignoring the law that the 22 members of this
committee worked so hard to craft.
It wasn't easy to pass the law. There were crocodiles
lurking in every corner of the pond. One of those--and I see
Senator Bennet here, and we've had vigorous discussions over
this--was called the issue of comparability. That's a provision
that was put into the law first in 1970 that says that school
districts have to provide at least comparable services with
State and local funding to title I schools and non-title I
schools.
The law also says that school districts, quote, ``shall not
include teacher pay when they measure spending for purposes of
comparability.'' This committee has debated several times
whether or not teacher pay should be excluded. Senator Bennet,
for example, not only felt strongly about this, but he had a
proposal to change it. It wasn't adopted. I felt strongly about
it. I offered an amendment to change it. It was defeated.
Ultimately, we made two decisions about this issue as
reflected in the law we passed last year. First, we chose not
to change the comparability language in the law, so the law
still says teacher pay may not be included in that computation.
Second, we added a reporting requirement that school districts
should report the amount they spend on each student, including
teacher salaries, so that parents and teachers could know what
is being spent and could make their own decisions about what is
fair and what is equitable, rather than the Federal Government
mandating it.
The one thing that the law that the President signed in
December did not do was change the law that says teacher
salaries may not be included when you're computing
comparability. Here's what your department did on April 1. You
tried to do what Congress did not do last year, and you tried
to do it by regulating another separate provision in the law.
In a proposed rulemaking session, here's what you proposed:
forcing districts to include teacher salaries in how they
measure their State and local spending and require that State
and local spending in title I schools be at least equal to the
average spent in non-title I schools.
If that were adopted, your proposal would require a
complete, costly overhaul of almost all the State and local
finance systems in the country, something we did not pass in
the law. It would force teachers to transfer to new schools,
something we did not pass in the law. It would require States
and school districts to move back to the burdensome practice of
detailing every individual cost when the purpose of the law as
expressly written was to relieve some of that burden.
According to the Council of Great City Schools, your
proposed rule would cost $3.9 billion just for their 69 urban
school districts to eliminate the differences in spending
between schools. I'm not interested today in debating whether
it's a good idea or a bad idea to include teacher salaries when
computing comparability. The plain fact is that the law
specifically says the Department on its own cannot do it.
Mr. Secretary, not only is what you're doing against the
law, but the way you're trying to do it is against another
provision in the law. To accomplish your goals on
comparability, you are using the so-called ``supplement not
supplant'' provision that is supposed to keep local school
districts from using Federal title I dollars as a replacement
for State and local dollars in low-income schools.
According to a Politico story published on December 18, the
former Secretary of Education said, ``Candidly, our lawyers are
much smarter than many of the folks who were working on this
bill,''. I don't know whether that means the 22 Senators on the
committee or all the staff sitting behind us. I'm not sure how
smart we are, but we're smart enough to write a law in plain
English, and we're also smart enough to anticipate that your
lawyers would attempt to ignore what we wrote and try to move
around it.
We included specific prohibitions in the so-called
supplement not supplant provision that would prohibit you from
doing the very things you are proposing to do.
Section 1118(b)(4) says,
``Nothing in this section shall be construed to
authorize or permit the Secretary to prescribe the
specific methodology a local educational agency uses to
allocate State and local funds,''
and section 1605 says, ``Nothing in this title shall be
construed to mandate equalized spending.''
Mr. Secretary, I'll have more to say about this in my
question time, and I'm going to ask you about this. I want you
to know and, particularly, those lawyers who think none of us
are very smart up here--I want them to know that 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.
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. If they lose,
I'll encourage them to go to court.
I'm not the only one who can read the law. You're going to
come up against a coalition that's as broad as anything we've
ever had in education of Governors, teachers organizations,
chief State school officers who are tired of your Department
telling them so much about what to do about the 50 million
children and 100,000 public schools. They've already sent you a
letter about that.
Wisconsin Superintendent Tony Evers, a well-respected State
chief school officer and a member of the rulemaking committee,
said last week that congressional intent isn't necessarily
being followed here. The School Superintendents Association
says that the prohibitions in the law, in tandem with Congress'
deliberate act of leaving comparability unchanged, makes a
seemingly tight case against expanding supplement not supplant.
You've testified here that you will abide by the letter of
the law. It's not abiding by the letter of the law to require
local school districts to use teacher salaries and equalize
spending between title I and non-title I schools. It's not
abiding by the letter of the law to use supplement not supplant
provisions to achieve your goals for comparability when
Congress debated this issue and chose to not make any changes
in the law.
I'm making such a point of this today because we're at the
beginning of the implementation of a law that affects, as I
said, 3.4 million teachers and 50 million students in 100,000
public schools. The States are busy working on their plans for
title I money. They have a clear law that changes the direction
of what Federal policy is.
I'm determined to see that the law is implemented the way
we wrote it. It's important at the beginning of this
implementation to make sure that you as well as those who work
for you in the Department understand that. They are not elected
to anything, and you are confirmed by the U.S. Senate to
faithfully execute the laws, and you said you will abide by the
letter of the law in your confirmation proceeding, and I expect
that to be the case.
Senator Murray.
Opening Statement of Senator Murray
Senator Murray. Thank you, Mr. Chairman.
Secretary King, thank you for being here today. This is an
important time for the Department of Education, from expanding
access to pre-K for our youngest learners to helping students
and families with growing college costs, and, of course, as you
are working hard to implement the new K-12 law.
I remember hearing from a parent named Duncan Taylor last
year. His son is in school at Highline Public Schools in
Washington State. He's an active member of the PTA and
volunteers in his son's school that serves students from very
diverse backgrounds. He said he saw up close and personal how
No Child Left Behind wasn't working for teachers and students
in the classroom, and it wasn't working for schools or our
communities.
Here in Congress, on an issue as important as education and
on a law as broken as No Child Left Behind, we were able to
work together, break through the gridlock, and pass the Every
Student Succeeds Act with strong bipartisan support.
As a reminder, here is what our law does: The Every Student
Succeeds Act gives States more flexibility. It also includes
strong Federal guardrails for States as they design their
accountability systems. It preserves the Department's role to
implement and enforce the law's Federal requirements and,
importantly, reduces reliance on high-stakes testing, and it
makes significant new investments to improve and expand access
to preschool for our Nation's youngest learners, to name just a
few provisions in the law.
Reauthorizing this law was not the finish line. It was a
starting point for the Department and for our schools,
districts, and States to begin the hard work of transitioning
away from No Child Left Behind and to turn the page. While the
Department goes through this process and as States develop new
systems and polices, I will be closely monitoring several
issues to make sure our law lives up to its intent to provide
all students with a high-quality education.
The Elementary and Secondary Education Act is, at its
heart, a civil rights law. We know from experience that without
strong accountability, kids from low-income neighborhoods,
students of color, kids with disabilities, and students
learning English too often fall through the cracks. I expect
the Department to use its full authority under the Every
Student Succeeds Act to make sure every student does have
access to a quality education.
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.
That includes things such as ensuring States and districts
take action every year to improve student achievement in any
school that has groups of students who are not achieving
academically.
It includes enforcing the State-level cap on the use of
simplified alternate assessments for students with the most
significant cognitive disabilities and ensuring Individual
Education Program, or IEP, teams have the tools they need to
identify which students with a disability should take that
assessment. I will be taking a close look at any guidance or
regulations from the Department for school interventions and
supports which will be critical to helping low-performing
schools improve.
In March, the Leadership Conference on Civil and Human
Rights and 54 civil rights organizations sent a letter to the
Department on the importance of accountability and the
authority of the Department to regulate on this and other
critical issues. I want to underscore what they wrote,
particularly about the Department's vital role to make sure
this law,
``includes serious protections for vulnerable
students and creates important leverage for parents,
communities, and advocates to continue their push for
equity and accountability for all students.''
The letter further states that the law is clear. The
Department has the authority and responsibility to issue
regulations and guidance and to provide guidance and technical
assistance for the implementation of the Every Student Succeeds
Act.
And, finally, I will continue to be very focused on the
competitive grant program to expand access to high-quality
preschool. That means the Department of Health and Human
Services should work closely with the Department of Education
so more students get the chance to start kindergarten ready to
learn. It's up to all of us to uphold the legacy and promise in
the Every Student Succeeds Act.
Dr. King, I'm looking forward to hearing from you on the
steps needed to implement the new bipartisan law in a way that
will help provide a quality education to all of our children.
Thank you very much.
The Chairman. Thank you, Senator Murray.
I'm pleased to welcome the United States Secretary of
Education to our hearing today. I'd like to thank him for being
here. He has a busy schedule. I'm pleased to introduce Dr. John
King, Jr., who was confirmed March 14th. Prior to becoming
Secretary, Dr. King served as Commissioner of Education for the
State of New York, overseeing not only the State's elementary
and secondary schools but institutions of higher education and
numerous other educational institutions.
He has also served as a Managing Director for a nonprofit
charter management organization, Uncommon Schools, and as a co-
founder and co-director for curriculum and instruction of
Roxbury, MA, Preparatory Charter School.
Dr. King, welcome.
STATEMENT OF HON. JOHN B. KING, Jr., Ph.D., SECRETARY,
DEPARTMENT OF EDUCATION
Secretary King. Thank you so much. Chairman Alexander,
Ranking Member Murray, and members of the committee, thank you
for inviting me to speak about how the Department of Education
intends to implement the Every Student Succeeds Act. I commend
Congress for passing this law with strong bipartisan support.
The passage of this law is a major accomplishment as we
build on efforts to expand educational excellence and equity in
partnership with States, districts, communities, and educators.
ESSA presents us with a moment of both opportunity and moral
responsibility. The new law reauthorizes the original
Elementary and Secondary Education Act of 1965, which was a
civil rights law that must be viewed in the context of the
Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Responsibility to ensure that implementation of the new law
lives up to its civil rights heritage rests with leaders in
States and with all of us. ESSA advances equity by upholding
critical protections and maintaining dedicated resources for
America's most disadvantaged students. Importantly, the law
maintains expectations, and action will be taken to improve
opportunities for students in schools that chronically
underperform, that do not improve low graduation rates, and
that do not ensure progress for all student groups.
The new law also embodies much of what the Obama
administration has supported over the last 7 years. For the
first time, ESSA enshrines in law high, State-chosen learning
standards that will prepare all students for college and
careers. The law supports local innovation and builds on the
Administration's historic investments in quality preschool.
ESSA also requires that information on student progress is
shared through annual statewide assessments while supporting
State efforts to reduce and improve State and local tests.
Importantly, ESSA builds on work already underway to raise
expectations for students and establish locally tailored
systems for school improvement in States.
The law rightly shifts responsibility for developing
strategies to support the highest-need students and schools to
State and local decisionmakers and away from the one-size-fits-
all mandate of No Child Left Behind. It creates opportunities
for States to reclaim the goal of a rigorous, well-rounded
education for every child.
At the same time, ESSA maintains a crucial Federal role in
constructing guardrails to protect our children's civil rights.
We take that responsibility very seriously. ESSA is an
important and complex law with new pieces related to data
reporting, accountability, support systems and programs. At the
Federal level, our role is supporting States and districts to
improve opportunity for students, investing in research and
scaling what works, ensuring transparency, and providing
safeguards to ensure educational equity.
Ultimately, we all want quality implementation of the law
that builds on the progress of the last decade and supports
States, districts, and schools in helping every student to
succeed.
ESSA implementation will require an incredible amount of
work to know how to best support States, districts, and
educators. We've sought input on areas in need of regulation,
guidance, and technical assistance and received lots of
feedback via our notice in the Federal Register, public
meetings, and ongoing outreach to stakeholders. At the same
time, the Department is engaging in this process with an
understanding that we cannot and, indeed, should not attempt to
provide guidance or regulations for every area of law where
ambiguity exists.
We are prioritizing where our support for implementation is
most needed. For example, we plan to issue guidance in late
summer or early fall on the changes in the law that impacts
some of our most vulnerable students, homeless students,
students in foster care, and English learners, and to encourage
best practices as States and districts make use of some of the
new funding opportunities in the law.
Most recently, the Department engaged in negotiated
rulemaking on assessments and the requirement that Federal
title I funds be used to supplement not supplant State and
local investments in education. The Department has proposed
regulatory text that would support States and districts in
measuring the progress of all students, including our students
with disabilities and English learners, by ensuring that annual
statewide assessments are valid, reliable, fair, and of high
technical quality so that schools can provide good information
on student performance for parents and educators.
The Department also proposed regulatory text that would
support States and districts in measuring the progress of all
students and that would help ensure that title I funds are
truly supplemental while also maintaining district flexibility
to choose their own methodology to allocate State and local
funds. The sessions have been productive, and we hope the final
outcome will be a set of regulations that support high-quality
implementation of the new law and protect equity and
transparency.
In addition, we recently announced that we will begin the
regulatory process on accountability, which would include
components relating to reporting and consolidated State plan
submission and the new title I, part B innovative assessment
demonstration authority. These regulations will respond to some
of the key areas in which the Department received public
comment and on which regulations would serve to support
implementation.
For example, we seek to leverage the consolidated aspect of
State plans to streamline requirements, reduce burden on
States, and encourage them to think comprehensively about
systems and supports across programs. That's the type of
approach that I know I would have found helpful when I was a
State chief.
As we continue to meet with stakeholders to identify other
areas where guidance and technical assistance may be needed, we
look forward to a robust discussion on the new law. Education
is the path to quality and opportunity that is at the heart of
the American dream, and together we can ensure the dream is
within reach for every child.
Thank you. I'm glad to take your questions.
[The prepared statement of Secretary King follows:]
Prepared Statement of Hon. John B. King, Jr., Ph.D.
Thank you Chairman Alexander, Ranking Member Murray, and members of
the committee. I appreciate the invitation to testify today regarding
how we are implementing the Every Student Succeeds Act (ESSA), which
the President signed into law on December 10, 2015.
I have seen and lived the hard work and challenges faced by State
leaders, principals, teachers, and other educators at all levels of our
education system. And I have no greater responsibility than supporting
their efforts to ensure that all children, regardless of where they
live or their background, receive the education they need to succeed in
school and in life.
I want to take a moment to acknowledge the hard work of this
committee in passing this law, and thank you for your work. In an era
when bipartisan successes are too few and far between, you and your
staff worked tirelessly to reauthorize an outdated piece of
legislation, compromising where needed and always keeping the focus on
what was best for kids. That is a great testament to each of you and
particularly to the leadership of Chairman Alexander and Ranking Member
Murray.
My colleagues will tell you that as a former social studies
teacher, I rarely miss an opportunity to put our work in its historical
context. As you all know, the Every Student Succeeds Act reauthorized
the original Elementary and Secondary Education Act (ESEA), which was
signed by President Lyndon Johnson in 1965. From its inception, ESEA
was a civil rights law. It was signed into law following the Civil
Rights Act of 1964, and in the same year as the Voting Rights Act of
1965, by a President who believed that ``full educational opportunity''
should be ``our first national goal.'' ESSA honors the law's civil
rights heritage, and the responsibility to ensure that its
implementation also honors that heritage rests with each State,
district, and school--but also with all of us here.
ESSA advances equity by upholding critical protections for
America's disadvantaged students. The law maintains dedicated resources
and supports for students from low-income families, students with
disabilities, English learners, Native American students, foster and
homeless youth, and migrant and seasonal farmworker children. What's
more, the law maintains the expectation that, in schools where students
chronically underperform, in high schools that have low graduation
rates over extended periods of time, and in schools where groups of
students are not making progress, action will be undertaken to improve
opportunities for students. With ESSA, Congress has reinforced the
Federal commitment to holding our Nation's schools accountable for the
progress of all students, while striking a new, improved Federal-State
partnership that moves away from the one-size fits all approach of No
Child Left Behind (NCLB).
ESSA also reflects many of the priorities that this Administration
has put forward over the last 7 years, moving forward a vision grounded
in equity--to ensure that every young person in America receives an
education that will prepare him or her with the knowledge and skills
needed to succeed in college and future careers. It creates high
expectations for students and for schools, and it invests in local
innovation--including evidence-based and place-based interventions--
consistent with many of our Administration's ideas and priorities. The
law requires that all students in America be taught to high academic
standards and shares vital information about their progress and
performance with educators, families, students, and communities on an
annual basis, through statewide assessments. ESSA also encourages a
smarter approach to testing, moving away from a sole focus on
standardized tests to drive decisions around the quality of schools and
allowing for the use of multiple measures of student learning and
progress--along with other indicators of student success--to make
school accountability decisions. Our Administration is pleased that
ESSA includes provisions consistent with President Obama's principles
around reducing the amount of classroom time spent on standardized
testing, encouraging States to limit the amount of learning time
devoted to these assessments and supporting efforts to audit,
streamline and improve assessments at the State and local level.
In addition, this new law builds on the work already underway in
States to raise expectations for students, develop their own strong
State systems for school improvement, particularly in the lowest-
performing schools and schools with chronically low graduation rates,
and drive opportunity and better outcomes for every child. ESSA
empowers State and local decisionmakers to develop their own strategies
for supporting the students and schools most in need based on evidence,
rather than imposing the top-down approach of NCLB. By providing States
and districts with more flexibility to innovate and implement locally
driven reforms, ESSA moves beyond NCLB in a way that will drive
stronger outcomes for all kids.
The new law builds on and sustains our historic investments in
increasing access to high-quality preschool--one of the most powerful
things we can do to ensure opportunity for students, by giving our
youngest learners a strong start. And it creates an opportunity for
States to reclaim the goal of a well-rounded education for all
students. We have long understood that English Language Arts and Math
test scores alone do not tell us all we need to know about our
students' progress, or their readiness for college and careers. Under
the new law, States have an opportunity to broaden how they consider
what makes a school successful for the 21st century while maintaining
focus on key academic outcomes. That may mean States measuring how
students--all students--are doing in Advanced Placement and
International Baccalaureate courses. It may mean States taking a closer
look at chronic absenteeism, post-secondary enrollment, placement in
remedial college coursework, or school climate as additional measures
of how schools are serving all students.
The possibilities are exciting and expansive, but their real-world
impact for children will depend on implementation. And that is what you
have invited me here today to discuss. So let me speak briefly about
the Federal role in education. Education is, and should remain,
primarily a State and local responsibility. What we do at the Federal
level is support States and districts to improve opportunity for all
students, invest in local innovation, research and scale what works,
ensure transparency, and protect our students' civil rights, providing
guardrails to ensure educational opportunity for all children.
We at the Department take that responsibility very seriously. This
is an important and complex law, with a lot of new pieces--new data-
reporting requirements, new opportunities for state-designed
accountability and support systems, new programs. Everyone--from the
parent whose first child just enrolled in pre-school to the district
superintendent--has questions about how this all comes together in
practice. As someone who is a parent of public school children, and who
has been a teacher, a principal, and a State commissioner of education,
I can tell you that the prospect of a new law of this magnitude and
scope is both exciting and daunting. There is an incredible amount of
work to be done at all levels to implement the law.
That is why, since the bill was signed into law, we have been
listening to the many stakeholders who care about implementation--
including civil rights leaders, teacher and principal representatives,
State and school district leaders, parents and many others--to hear
their questions and concerns and identify where regulations, guidance,
or technical assistance might be most needed. We published in the
Federal Register on December 22nd a request for information, broadly
seeking input on areas in title I in need of regulation. And as part of
that notice, we held two regional meetings to seek public input: one on
January 11th in Washington, DC, and one on January 19th in Los Angeles.
In response to our notice, we received hundreds of comments, submitted
on behalf of approximately 1,000 groups and individuals. We heard from
teachers, principals, and other school leaders. We heard from State
chiefs and district superintendents, from parents and students. In
addition, over the past several months, we have held well over 100
meetings with stakeholders from across the education system, including
parents and teachers, school leaders, State officials, and civil rights
groups, to listen to their thoughts and concerns about implementation
of the ESSA.
In general, the comments reflected support for the new law. Many
commenters expressed the need for regulations and guidance from the
Department in order to better understand how to implement the
provisions of the new law by July 2017. Among the most common areas of
interest were: accountability, assessments, school improvement, data
reporting, fiscal requirements, consolidated State plans, and family
engagement. For example, the Leadership Conference on Civil and Human
Rights, along with 36 other civil rights organizations, recommended
that the Department promulgate regulations relating to, the 1 percent
cap on the alternate assessment for students with the most significant
cognitive disabilities (including criteria for a waiver of that cap),
and the inclusion of English learners in content assessments. The
National Education Association requested that the Department regulate
on data requirements relating to compliance with the requirement that
funds under title I, part A be used to supplement, and not to supplant,
State and local funds. The Business Roundtable called on the Department
to ensure that there is regulatory guidance in place to prevent student
achievement gaps from growing and students from exiting high school
ill-equipped to succeed in college and the workplace. Department of
Education staff at all levels are continuing to meet with groups, and
engage in listening sessions across the country, from rural communities
north of Seattle in Washington State to Columbia, SC.
We also are looking across our existing regulations and guidance to
figure out what is still useful and what needs to be updated. We know
that States, districts, and educators are eager to move forward with
implementing the new law, and we want to be responsive to that sense of
urgency. When it comes to building new systems, the 2017-18 school year
is actually not that far away. To that end, on February 4th, we
published a notice announcing our intent to engage in negotiated
rulemaking on assessments under ESEA section 1111(b)(2) relating to
statewide assessments, and the requirement under section 1118(b) of the
ESEA that Title I, Part A funds be used to supplement, and not
supplant, State and local funds. The negotiation sessions began in late
March and will continue through April 19 at the Department of
Education, and are open to the public. The negotiating committee
represents a wide range of constituencies, including parents, State and
district administrators, teachers, principals, other school leaders
(including charter school leaders), paraprofessionals, tribal
leadership, and members of the civil rights and business communities.
The Department has proposed regulatory text that would support States
and districts in measuring the progress of all students, including our
students with disabilities and English Learners, by ensuring that
annual statewide assessments are valid, reliable, fair, and of high
technical quality, so that schools can provide good information on
student performance for parents and educators. The Department's
proposal with regard to ``supplement, not supplant''--based on feedback
from the committee--will help districts ensure that title I funds are
truly supplemental, while also maintaining districts' authority to
choose their own methodology to allocate State and local funds. The
sessions have been productive and we hope that the final outcome will
be a set of regulations--which will also be subject to public notice
and comment before they are final--that support high-quality
implementation of the new law and protect equity and transparency,
particularly for our most vulnerable student populations.
In addition, we recently announced that we will begin the
regulatory process on accountability, which would include components
relating to reporting and consolidated State plan submission and the
new title I, part B innovative assessment demonstration authority. As
part of this process, the Department will put out proposed regulations
for public comment this summer, with a goal of releasing final
regulations by late fall to support full implementation of the law by
2017-18. These regulations will respond to some of the key areas in
which the Department received public comment, and on which regulations
may serve to support implementation. For example, the law allows for
States to submit consolidated State plans, but historically this
exercise has involved submitting various different plans stapled
together. Through regulation, we will seek to leverage the consolidated
aspect of these plans to streamline requirements, reduce burden on
States, and encourage them to think comprehensively about systems and
supports across programs. As a former State chief, I know I would have
found this approach very helpful, and I am glad we will be able to do
this.
We also recognize the need to provide guidance on how States and
local districts may implement the many provisions throughout ESSA. We
are early in this process, as we are still receiving feedback from
across the country and plan to continue to meet with stakeholders in
the coming months to help identify the appropriate areas in which
guidance might be useful.
I want to underscore that the Department is engaging in this
process with an understanding that we cannot, and indeed should not,
attempt to provide guidance or regulations for every area of the law
where ambiguity exists. We are focusing on the things that matter the
most.
Through the rulemaking process, we have directed our attention to
three areas where we believe it is critical to provide clarity to
States, districts, and schools: assessments; accountability; and the
equitable allocation of resources. And I assure you that we will take
seriously and give every consideration to the feedback we receive
through the notice-and-comment period.
Our goal is a renewed Federal-State partnership that will support
local school districts and their schools in their charge of helping
every student succeed. As we announced in December, our Nation's
graduation rate is at a record-high 82 percent, but achievement gaps
persist and too many students complete their schooling without the
knowledge and skills needed for future success. We need to keep the
progress going for all kids, and so we are going to keep the
conversation going--with stakeholders at every level, and with all of
you here. And as we hear from the field, we will continue to identify
opportunities to support our States and districts through regulations,
guidance, and technical assistance where it is most useful.
Ensuring a world-class education for every child is both a
demanding challenge and an urgent imperative for our Nation, our
communities, and our children. I know that members of the committee
share those beliefs--and I look forward to continuing to work with this
committee to ensure that in America, education is, as it must be, the
great equalizer.
Thank you, and I am happy to answer any questions that you have.
The Chairman. Thank you, Dr. King. We'll now have a round
of 5-minute questions. I'll try to stick close to the 5-minutes
and hope others will as well.
Preliminarily, Dr. King, we're talking about title I plans.
Title I are Federal dollars States may apply for, submitting a
plan, and that constitute about 4 percent of all the money that
State and local governments spend on 100,000 public schools.
There's more Federal money than that, but it's not covered by
title I. We're talking about for that amount of money what
instructions you can give.
And, second, I would ask you this. You mentioned guidances
coming out later. You agree, do you not, that guidances are
merely illustrative and are not intended to be legally binding
upon local school districts?
Secretary King. That's right. As we've discussed, guidance
is intended to provide clarity and to provide examples of best
practice. We do not believe guidance has the force of law. It
does often include our interpretation of the law, again, to
provide clarity.
The Chairman. Thank you, Dr. King. Let's talk about
comparability. There is a provision in the Act, as I mentioned
in my opening comments, first put there in 1970 that says
school districts have to provide at least comparable services
with State and local funding to title I schools and non-title I
schools.
The law also says on comparability in Section 1118(c)(2)(b)
for purposes of this subsection in determining that
computation, ``staff salary differentials for years of
employment shall not be included in such determination.'' Do
you agree, yes or no, that the law prohibits requiring local
school districts to use teacher salaries when demonstrating
that they are providing title I schools with at least
comparable services as non-title I schools?
Secretary King. You are referencing the comparability
section as opposed to supplement not supplant section.
The Chairman. That's correct.
Secretary King. Yes, I believe that's an accurate depiction
of the comparability section of the law.
The Chairman. You've had a chance to study the law. In your
opinion, did Congress make any changes in the comparability
section when we reauthorized the law last year?
Secretary King. I don't believe there were changes to the
comparability section. There were changes to supplement not
supplant.
The Chairman. I'm just asking you did we change Section
1118(c)(2)(b), the comparability section?
Secretary King. To the best of my recollection, no.
The Chairman. No, we didn't change it. Your proposal in
April to the negotiated rulemaking committee on a different
subject, supplement not supplant, says a local school district
may determine the methodology it will use to allocate State and
local funds, provided that methodology results in spending of
local funds in a way that's equal to or greater than the
average amount spent per pupil in non-title I schools. You also
say that methodology must provide a basic educational program
as defined under State and local law is used in each title I
school.
Would you agree that that language defines two methods that
local school districts must use?
Secretary King. No. I appreciate you're making a
distinction between comparability and supplement not supplant
and----
The Chairman. Wait a minute. In supplement not supplant, it
says provided that that methodology that the local school
district uses is, one, the average I talk about, and, two, the
basic education program. How can that not be the defining of a
methodology that a local school district uses?
Secretary King. The proposed regulation is careful to
maintain district flexibility with determining the----
The Chairman. Wait a minute, Mr. Secretary. The words are:
provided that methodology is one or two. The question is are
you not defining a methodology when you use the words,
``provided that methodology is X or Y?''
Secretary King. We are not. We are laying out what criteria
are necessary----
The Chairman. You used the words, ``provided that
methodology.'' ``Provided that methodology'' are the words you
use.
Secretary King. Followed by a set of words that describe
the criteria by which that methodology would meet the principle
of supplement not supplant.
The Chairman. Oh, OK. You define the methodology.
Secretary King. We do not.
The Chairman. You do. How can you sit there and say that?
We may not be very smart up here, or at least I may not be. Let
me speak for myself. I can read--provided that methodology does
X, does Y.
You are defining a methodology when in the law--what we put
in the law was that nothing in this section of supplement not
supplant, which has nothing to do with the comparability
section--nothing in this section shall be construed to
authorize or permit the Secretary to prescribe the specific
methodology a local education agency uses or to mandate
equalized spending. In other words, we anticipated that you
were going to try to not follow the law, and we anticipated,
and we wrote in the law that you couldn't use a specific
prohibition to do that.
Secretary King. As indicated, we do not prescribe the
specific methodology--leave the methodology to districts--but
are requiring----
The Chairman. Provided that methodology results in X,
provided that methodology results in Y. How is that not
prescribing a methodology?
Secretary King. Those are criteria by which to evaluate a
methodology that would be determined by a district that would
ensure that the title I dollars are, in fact, supplemental and
not being used for----
The Chairman. Dr. King, do you know how ridiculous the
statement is you just made? If I read you plain English, if I
say A, B, C, and you say it's D, E, F, how can that be?
Secretary King. Again, I would characterize it differently.
The question here is a methodology that is district determined
must achieve A and B, and A and B ultimately define supplement
not supplant, which is to ensure that the title I dollars are
used in a way that is supplemental.
The Chairman. The law intended that States would have more
flexibility in local school districts and I'm over my time.
I've already violated my own rule, it looks like. I'll
conclude, and I'll stay for a second round of questions. Thank
you.
Senator Murray.
Senator Murray. Congress deliberately required the
supplement not supplant requirements to go through the
negotiated rulemaking process. This policy really is a critical
fiscal check to make sure that Federal funds are layered on top
of and not in place of State and local funding. Teachers and
principals in Washington State tell me how important Federal
education dollars are to support the State and local resources
in their schools, and we need to make sure that these Federal
dollars continue to support and augment State and local dollars
and don't replace them.
Can you tell us about the feedback that you received from
stakeholders and how this feedback was then incorporated into
the draft regulation?
Secretary King. Yes. Your description is exactly right. As
we gathered feedback through our request for information, what
we heard was a request from civil rights groups, from parents,
from educators for greater clarity on how supplement not
supplant would ensure that the title I dollars are truly
supplemental and not used to backfill.
Also, we heard concern that the prior methodology under No
Child Left Behind was often burdensome and left key
decisionmaking to auditors rather than to educators. This new
methodology reflects the input. This new way of defining what
districts need to do in their methodology reflects the input
that we received from States and districts.
Senator Murray. ESEA is at its heart a civil rights law
with the goal of ensuring that all students receive a quality
education. When the Department began issuing waivers under the
No Child Left Behind requirements, they only required important
interventions in the bottom 5 percent of schools and small
groups of schools with achievement gaps called focus schools,
and because of that, I heard many concerns with that approach.
Under the Every Student Succeeds Act, States must annually
distinguish and ensure there are interventions in any school in
which one or more subgroups of students is consistently
underperforming and require additional interventions for the
worst performing of those schools. Last week, the Department
announced it will release a draft accountability regulation in
the coming months.
Can you tell me how the administration will make sure the
faithful implementation of that provision, and that there are
robust supports for all schools in which subgroups are
struggling?
Secretary King. Yes. We have developed draft regulations
that are now with OMB for final review on accountability with
the goal that reflects the principles in the law, that
standards will be high, that we will ensure the progress of all
subgroups, and that in schools that are struggling there is a
requirement for meaningful action by States and districts. The
regulations would ensure guardrails, again, ensuring
flexibility for States for them to define the precise
interventions that they believe will address the local
conditions that are behind the underperformance.
Senator Murray. This new law does turn over more
decisionmaking power to States and districts, making
collaboration even more important than ever. In my home State
of Washington, many are already taking steps to make sure that
their voices are heard in this implementation process. I've
said before, I believe all States must invite all stakeholders
in to engage in this process, including civil rights leaders
and parents.
What steps is the Department taking to make sure that ESSA
prompts frequent, deliberate collaboration among all the
stakeholders at both the State and local level?
Secretary King. That's really the approach that we've taken
from the outset. We put out a request for information that
resulted in comments from nearly 1,000 individuals and
organizations. We held two public hearings in which we received
over 100 comments. We've held over 100 stakeholder listening
sessions with diverse groups, civil rights groups, parents,
educators around the country, and we'll continue to do so.
In the negotiated rulemaking process, we had over 200
nominations for the negotiated rulemaking process and have a
negotiated rulemaking committee that is diverse and reflects
diversity of stakeholders. We have urged States as they begin
their process of developing State approaches to implementing
the Every Student Succeeds Act--we've encouraged States to make
sure that they have robust stakeholder engagement, and that's
what we're seeing, States beginning the process now of engaging
with a diversity of interests within their State.
Senator Murray. What kind of comments are you hearing back
as you move forward on this process?
Secretary King. Many of the comments are around what areas
require further clarity or guidance. As we've developed--
identified areas for negotiated rulemaking or for regulation or
for guidance, it's been responsive to the feedback that we've
received. We've heard a lot of enthusiasm about the potential
for the new law to advance equity and excellence, but also a
concern that we have to make sure that there are strong Federal
guardrails to protect civil rights.
Senator Murray. Thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Murray.
Senator Burr.
Statement of Senator Burr
Senator Burr. Thank you, Mr. Chairman.
Secretary, welcome. Under the No Child Left Behind Act,
schools have had to itemize the cost of services and programs
to show title I aid was providing supplemental services, but
the ESSA schools don't have to identify those individual costs.
They only have to show fiscal terms that the title I dollars
supplement State and local dollars, and they don't need a
waiver to do so. Districts no longer have to worry about
showing whether each expenditure is a core service or
supplemental for title I purposes.
In the negotiated rule proposal from the Department,
however, you're telling States that actual per-pupil spending
is equal to or greater than in a non-title I receiving State.
In a concept similar to what you're doing, this was an issue on
the Federal level that I tried to fix with the title I-A
formula. I believe before States are told to do something
regarding how they are funding schools equitably, the Federal
Government must exhibit leadership in how we allocate title I-A
funds to eliminate those inequities. This is the whole point of
title I-A.
When Secretary Duncan was first confirmed about 7 years
ago, I asked for the administration's proposal for fixing title
I-A formula inequities, but I've never received one. In the
remaining months of this administration, will you share with me
your proposal on how we might address inequities in title I-A
allocations from the Federal level?
Secretary King. We certainly are prepared to work with you
or your staff to look at this set of questions. I would say in
your question, one important distinction is that the proposal
on supplement not supplant is not going to affect State level
decisions. It's about the district methodology for allocation
of resources within the district.
Senator Burr. Do you agree that Federal funds that were
designed for poor kids are not following the poor kids?
Secretary King. What we see--and one of the reasons why the
supplement not supplant regulation is so important--what we see
is that, in fact, in many districts around the country, more
Federal dollars are being spent in non-title I schools than in
title I schools, and we have to make sure that the resources
are allocated to address the needs of the students most at
risk.
Senator Burr. Isn't the role of Federal Government with
taxpayer designated money for poor kids--isn't our role to make
sure that money follows where those poor kids live?
Secretary King. The focus of the Federal dollars is on
addressing the needs of the students who are most at risk.
Senator Burr. Wasn't title I designed to supplement the
needs of those kids? Today, it doesn't follow the kids. It
stays in districts whether the population grows or decreases.
Why wouldn't the Federal Government set the example of changing
it?
Secretary King. Again, the key is to get the dollars to the
students who are most at risk, and we have to acknowledge that
students who are in schools of concentrated poverty--students
in poverty who are in schools of concentrated poverty are more
at risk as a result. One of the things that the President has
done is propose an initiative called Stronger Together that
would have the goal of----
Senator Burr. We layer and layer and layer programs on, but
we have one right here where the money doesn't follow the
intended pupil, and we're not fixing it. Mr. Secretary, in a
dear colleague's letter from the Department dated January 28,
2016, your staff instructed States that they'd receive formula
funds in accordance with the 2015-16 school year allocations.
Although this guidance appears to only apply to title I
funds and for school improvement activities, for example, I
want to know whether you agree that the fiscal year 2017, which
is almost upon us in October--whether you agree the 14.29
percent annual reduction in title II hold harmless provisions
will begin to take place as required by the Every Student
Succeeds Act for the upcoming fiscal year.
Secretary King. We'll have to followup with your staff on
the title II question. I just want to make sure that we're
talking about an apples to apples comparison on the title II
dollars.
Senator Burr. Let me just refresh your memory. Title II
funding formula changed over a 7-year period. There's a
reduction for some of 14.29 percent, and it takes effect with
fiscal year 2017, which is October 1 of this year.
Secretary King. Again, we'll need to followup with your
team. My experience as a State chief was oftentimes the title
II dollars--there were times when the title II dollars would
carry over from year to year. I just want to make sure we're
having an apples to apples comparison in our conversation.
We'll followup with your team.
Senator Burr. I look forward to that conversation, because
I don't think there's any gray area in how we wrote this and
when the title II formula change starts, and that's October 1.
I thank the chair.
The Chairman. Thank you, Senator Burr.
Senator Casey.
Statement of Senator Casey
Senator Casey. Mr. Chairman, thank you.
Mr. Secretary, good to be with you, and thank you for your
service. I guess you're on the job about a month, and we
appreciate you being here reporting back on the implementation.
I wanted to focus your attention on students with
disabilities and, in particular, the 1 percent cap on
alternative assessment, which is a technical issue, but I think
it's easy for most folks to understand what we're trying to do.
We're trying to make sure as many students with disabilities
stay on track and graduate with a regular diploma. It's as
simple as that. We've made a lot of progress in terms of over a
number of years scores going up for students with disabilities,
graduation rates getting better, and being able to codify, to
put into the law the 1 percent policy is good progress.
I was noting in some of the data that if you look at both
math scores and reading scores for students with disabilities,
they're up, and I thought, maybe even more significantly,
students with disabilities are increasingly completing high
school and moving on to post-secondary programs. In about a
decade, we went from 68 percent of students with learning
disabilities receiving a regular high school diploma, compared
to just 57--I'm sorry--57 percent a decade ago, 68 percent now,
which is good progress on that metric.
Also, the dropout rate, fortunately, over about a decade is
going in the right direction, meaning instead of a dropout rate
of 35 percent in 2002, in 2011, the latest year we have some
data, it's down to 19. So good progress.
I guess my--I have basically two questions for you. As you
go through this implementation process, what can both the
Department as well as States and districts do to ensure that we
continue to make progress?
Secretary King. One of the keys to the continued progress
for students with disabilities is ensuring that to the greatest
extent possible with appropriate accommodations, students with
disabilities have access to the general education curriculum.
The assessment requirement, the 1 percent cap on alternative
assessment, is an important element in ensuring that students
have access to the general education curriculum.
As we work with the negotiated rulemaking committee, one of
the key elements in the discussion is ensuring that the 1
percent cap is meaningfully enforced and that to the extent
that States are able to get a waiver from the 1 percent cap, it
is not having the effect of taking students who could succeed
in a general education curriculum with appropriate
accommodations and denying them those opportunities. Much of
the feedback we received around the 1 percent cap was from the
disability rights community, expressing appreciation that there
would be a requirement for States to be very careful when
excluding students from access to the general education
curriculum and the general education assessments.
Senator Casey. I guess the value here or the goal is to
make sure that every student that has the capability has the
opportunity to both access the general curriculum and then
finally to graduate with a diploma. Just maybe one more
question on this. Generally, and even if you have specific
examples--generally, what has the disability community been
saying to you in this process?
Secretary King. Like many other constituency groups, there
is a sense of enthusiasm about the new law and the potential
for the new flexibility and a concern that there need to be
good guardrails in place to ensure that resources reach the
students who are most in need; to ensure that students with
disabilities have access to the general education curriculum;
that students with disabilities have access to the full range
of experiences that constitute a well-rounded education; that
students with disabilities have access to science and social
studies; that students with disabilities have access, where
appropriate, to advanced course work, again, with appropriate
accommodations. We're very mindful of ensuring that our
implementation helps States protect the rights and interests of
students with disabilities.
Senator Casey. I appreciate that. We've learned over a
number of years--both families and advocates have taught us
that students with disabilities have a lot of ability. We've
just got to give them the tools and resources to succeed. Thank
you for your work on this.
Secretary King. Thank you.
The Chairman. Thank you, Senator Casey.
Senator Bennet.
Statement of Senator Bennet
Senator Bennet. Thank you, Mr. Chairman. Thank you very
much for holding this hearing and for your efforts on the bill.
I did not succeed in changing the comparability provision.
The Chairman. Nor did I.
Senator Bennet. Secretary King, I wanted to ask you some
questions about this supplement versus supplant, understanding
that, as you said, this is a civil rights law. It's the only
reason the Federal Government should have any involvement, it
seems to me, in education.
I remember when I was superintendent of the Denver Public
Schools, the most miserable--actually, that's overstating it--
one of the most miserable experiences that I had and the people
that worked for me had was the experience of Federal
bureaucrats and Federal auditors, who were not experts,
deciding whether or not this service was provided in this title
I school and paid for, or this service provided in this non-
title I school, and making a judgment that had nothing to do
with the academic experience of children, but was just about
following not even the law, but the rules of the Department of
Education to determine whether or not we were supplementing or
supplanting our Federal money, in other words, whether we were
using it incrementally or whether we were filling gaps.
The reality is, unfortunately--Senator Burr is right. We
are one of three countries, as I understand it, among all
industrialized countries, that spend more money on wealthy kids
than we do on poor kids. That's not mostly a function of what
we do. It's a function of the inequities that exist in the
property tax system that we use to fund schools in America.
Even with respect to title I, a recent study from the
Center for American Progress said that 4.5 million students
attending schools, title I schools, in the same districts with
non-title I schools are actually having less money spent on
their education than more affluent kids, which makes no sense.
It's exactly the opposite.
I wonder if you could talk first about the existing
framework, the existing experience, and then talk from a
pragmatic point of view what you're trying to achieve with the
proposed rule.
Secretary King. I agree completely about the challenges
with the old system under No Child Left Behind where you had
auditors trying to make the decision on whether something was a
new program or not, whether something, because of the law,
might have been changed by the State, whether or not that then
changed the analysis for determining whether the services were
a matter of supplement or of supplant. All of that was quite
burdensome to districts and didn't achieve the intended goal,
which was to ensure that the title I dollars would be
supplemental.
What we've tried to do in this proposed rule--and, again,
it's----
Senator Bennet. I'm sorry to interrupt, but incredibly hard
to do whole school reform because you'd have this auditor
coming in and saying, ``That reading program--no, no, you paid
for that over here. You can't use that over here.''
Secretary King. That's right. That's right. With the
discussion that the negotiated rulemaking committee is having--
and I don't want to get ahead of that discussion, but what
we've proposed in those discussions is a simple approach saying
districts should choose their methodology, but that that
methodology should ensure that at least as much in State and
local spending is taking place in the title I schools as in the
average non-title I schools. The idea there is simply to say we
should try to do what we can to assure the principle of
supplement not supplant, that the title I dollars are
additional.
It doesn't require teacher transfers. What it requires, if
schools are not spending as much State and local funds in their
title I schools as in their non-title I schools, is that
districts ameliorate that allocation, and they can do that in a
variety of ways.
Senator Bennet. I also want to agree with the Chairman
that--or maybe add to what he said about this being a
retrenchment on education. This is probably the biggest
retrenchment on a domestic policy issue that we've had in
modern American history, not just education, but anything else.
I wonder, in that context, what you plan for the Department to
do to help districts implement this new law with fidelity.
I have come to believe over the years that bad
implementation is even worse than bad policy, and I wonder if
you have some thoughts on that, and then I'll stop. I have 10
seconds left.
Secretary King. Our goal is to provide clear guardrails
through the regulations based on the input that we have
received from stakeholders; to provide guidance, particularly
on areas where clarity and examples of best practice will be
helpful, like serving homeless students and students in foster
care and working with English language learners; and to create
communities of practice among States where they can share best
practices with each other. That approach will honor the
commitment to flexibility for States and districts while at the
same time honoring the civil rights legacy of the law.
Senator Bennet. Thank you.
The Chairman. Thank you, Senator Bennet.
Senator Cassidy has suggested that we go on to Senator
Warren.
Statement of Senator Warren
Senator Warren. Thank you, Mr. Chairman.
Secretary King, last month, you received a letter from over
50 civil rights and disability rights organizations
representing children of color, low-income children, English
learners, students with disabilities, LGBT young people, and
other vulnerable student populations, regarding your
responsibilities in enforcing the new education law.
Here are the organizations that represent exactly the kids
who this law is intended to help, and they wrote,
``Given the long history of State and local decisions
shortchanging vulnerable students, the Department
cannot shirk from its responsibility, regulatory and
enforcement responsibility, to ensure that the
implementation of ESSA eliminates, not perpetuates,
persistent inequities in our Nation's public education
system.''
If I can, just briefly, Mr. Secretary, what is the
Department of Education's role in ensuring the accountability
safeguards in the new education law are actually enforced? That
is, once a district announces it has satisfied the law, are you
required just to back out of the room and do nothing more?
Secretary King. No. We take very seriously our
responsibility to set good, clear guardrails in the regulations
and then to review and approve State plans, and to ensure that
those plans are implemented in a way that advances equity and
excellence.
Senator Warren. Excellent. Thank you. The Republicans have
talked about the congressional intent in passing this new law,
and that question is not difficult to answer. The first version
of this legislation back in 1965 was to affirm the Federal role
in protecting civil rights and educational opportunities for
all students, especially our most vulnerable students. That's
been the basis of Federal aid to education from the very
beginning, and it's carried directly forward into this statute.
I voted for this law on the explicit agreement that the
Department of Education would enforce its accountability
provisions through meaningful regulations. That's clear in the
language of the law, and it's also good policy. When the
Federal Government gives the States 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. There is a very
public record about this. The ink is barely dry on that record,
and I trust you'll keep it in mind as you go forward.
The new Elementary and Secondary Education law directs
billions of Federal taxpayer dollars to States to, ``provide
all children significant opportunity to receive a fair,
equitable, and high-quality education.'' To make sure that
happens, Congress wrote into the law critical requirements.
This requirement says that ESEA funds must be used to
supplement not supplant current State and local funds. In other
words, Federal dollars must provide additional resources to
low-income schools and not simply replace existing investments.
We've been talking about that as we've gone along.
Secretary King, can you talk for just a minute about how
the Department is enforcing this critical accountability
provision to ensure that Federal education dollars are truly
providing additional resources in high-poverty schools?
Secretary King. Yes. The challenges, as I've described--the
implementation of supplement not supplant under No Child Left
Behind was not effective in achieving this goal of ensuring
that the Federal dollars are truly supplemental. If we look at
individual districts, you can see a 25 percent, 30 percent, 40
percent, in some cases, additional spending in non-title I
schools than in title I schools, and, in fact, the Federal
dollars were being used essentially to backfill.
Going forward, the new law gives us the opportunity to
create a regulation that requires districts to develop their
own methodology that will ensure that at least as much is spent
in State and local funds in title I schools as is spent in the
average non-title I school. That's what we've proposed to the
negotiated rulemaking committee, and they are working through
that process.
Senator Warren. Let me just be clear on this. Is it
possible for the Department of Education to require States and
districts to work toward specific outcomes, that is, to have
guardrails without mandating specific accounting methods to
achieve those ends?
Secretary King. Exactly right.
Senator Warren. All right. Good. When the Federal
Government gives States 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 help those kids. This was one of the
conditions on which a lot of Senators voted for this law, and
it is something that we are going to stick with.
The Democrats have spent years fighting to make sure that
this reauthorization is about additional dollars, to make sure
that they support all of our teachers and all of our kids to
get a decent education. We just want you to keep that in mind
as you go forward.
Thank you.
The Chairman. Thank you, Senator Warren.
Senator Cassidy.
Statement of Senator Cassidy
Senator Cassidy. Hello, Dr. King. I was listening to your
testimony and the questions as I was in another hearing. You
mentioned in your testimony that you're concerned about
subgroups that would struggle, and that you're looking for
meaningful action required. You used the term, precise
intervention.
You've been here before. One of my interests is dyslexia.
Twenty percent of the population is dyslexic. Perhaps 80
percent of those who are functionally illiterate are dyslexic.
I forget the exact percentage, but something like 60 percent to
80 percent of the inmate population in the Texas penal system
have dyslexia. We know that illiteracy is a major risk factor
for incarceration.
Of course, given that you're interested in the subgroups
that are struggling and what meaningful action is required, I'm
interested in what we're doing, specifically, regarding
dyslexia. As I say that, I've learned when I ask these
questions, I'm given these kind of bromide answers, not
speaking to you, in particular. It's this gauzy, kind of
``we're looking after every child, and we're concerned about
dyslexia as part of this larger group.''
I want to know exactly what we are doing for children with
dyslexia, not as part of a bigger group, but know what has
dyslexia written in the rule. For this 20 percent of the
population and 80 percent of those reading below grade level,
what are we doing for that subgroup that is struggling, what is
the precise intervention, again, to quote your testimony?
Secretary King. As we've discussed, it's an important
question. Currently, States are using IDEA dollars through our
results-driven accountability approach to address reading
programs that are specifically----
Senator Cassidy. Can I interrupt for a second?
Secretary King. Yes.
Senator Cassidy. We had a panel before and I submitted QFRs
and asked, specifically what different people--Governors on
down to superintendents--what each was doing to screen for
dyslexia at grade one and to followup. I didn't get a positive
answer from any of them. Not a single entity that we know of is
screening for a condition which affects 20 percent of the
children at grade one.
Knowing that that is what they're supposed to do and going
back to yours, what meaningful action is being required? What
precise intervention is happening? I'm not seeing that precise
intervention.
Secretary King. This is an area where technical assistance
and professional development are critical. One of the important
things----
Senator Cassidy. Just to continue, if we're going to have
technical assistance, again, I don't mean to be assaultive, but
what is specifically being written for technical assistance
that is meaningful and precise regarding dyslexia to that local
and State entity?
Secretary King. Thanks in part to your leadership, in the
2016 budget, there is funding for a technical assistance center
focused on dyslexia. We are currently developing the request
for proposals for that technical assistance center.
Senator Cassidy. Technically, that is a center of
excellence and that's kind of just putting out information that
would be good if you used it. Unless it's required to be used,
it may end up being the equivalent of shelf ware.
Secretary King. That's fair worry, and that's why, to the
points that Senator Warren made, the accountability
provisions--and Senator Casey--the accountability provisions of
ESSA are so important. We have to make sure that districts and
States take seriously their responsibility----
Senator Cassidy. I've learned that those folks, the
stakeholders, respond to what you say. When I speak to folks
back home, if you say it, that settles it. Boom. I would go
back to where I started. What precisely and meaningfully is
being said by your Department to instruct them to address the
needs of that first grader who may be at risk for lifelong
reading below grade level because they have undiagnosed
dyslexia? What, precisely, are you all asking for?
Secretary King. We issued guidance and provided a toolkit
last year that addressed dyslexia, specifically, and talked
about strategies that districts and States might employ. The
technical assistance center will add to our capacity there to
support States and districts.
Senator Cassidy. Is there any required meaningful precise
intervention? Or is this among a group of things that you can
do, we think you should do, and atta boy?
Secretary King. It is options that districts might choose.
For example, some districts might choose the Orton-Gillingham
approach, some districts might choose the Wilson approach, but
there's a variety of options that they might----
Senator Cassidy. Their response, with that variety of
options, is it somewhat required that one of the options be
used, or is it ``Listen, if you decide to address, you may go
down one of these paths?''
Secretary King. The challenge is ultimately what's chosen
for any individual student is bound up with the IEP process.
Again, this is a place where support and professional
development for the folks who are involved in those IEP
conversations is so critical.
Senator Cassidy. One more time, is there any requirement on
your part that the district or the State screen a first grader,
because you can detect it at grade one, even kindergarten, and
screen that first grader for being at risk for dyslexia?
Secretary King. There's not a universal screening
requirement. The IEP team would be expected to address the
screening for dyslexia as a part of the assessment of the needs
of a student who is struggling. Again, One of the challenges
here is providing good support and professional development for
folks. This technical assistance center will help, and our
results-driven accountability approach will help, because
States understand that their accountability is not merely for
paper compliance with IDEA, but ensuring meaningful opportunity
and progress for students with disabilities.
Senator Cassidy. Thank you for this back and forth. You've
allowed me to interrupt, and it has furthered the conversation.
I'll end by saying that unless you require this to be addressed
specifically since dyslexia is one of the things we're looking
at. Are you screening, are you intervening at grade one, not at
grade three when it's too late, it's not going to happen. That
is the power of your Department. I thank you.
I yield back.
The Chairman. Thank you, Senator Cassidy.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much, Mr. Chairman.
Welcome, Mr. Secretary. Let me ask, if I can, about my
understanding of this proposed requirement regarding supplement
and supplant that Senator Alexander was discussing. I
understand that when you think about the context of the new law
being a devolution of power back to the States and then you
read language that points a school district or a State in a
specific direction on methodology, those two can look
inconsistent.
Let me tell you how I read them as consistent and just make
sure that it's the same. This is a section that is talking
about the way in which a school district will develop a
methodology. There's a difference between saying the
methodology will be, or the methodology must be, versus what
the language says, which is the methodology must result in.
Essentially, what it must result in is a re-articulation of the
underlying goal of the statute, which is that the Federal
dollars ultimately supplement not supplant.
Am I reading that right, that sort of the key here is that
the language doesn't say the methodology must be X and Y? It
says the methodology must result in, essentially, the goals of
the underlying statute that we all wrote together. Is that
right?
Secretary King. That's exactly right. For example, a
district might take a weighted student funding formula approach
as their methodology, or another district might choose a more
traditional assignment of staffing and services approach. Both
of those approaches would be fine as long as they achieve the
goal of as much State and local spending in the title I school
as in the average non-title I school.
Senator Murphy. You'll expect to see different
methodologies being used.
Secretary King. That's exactly right.
Senator Murphy. Second, just some questions about the
accountability regulations that are right now pending before
OMB. Obviously, a large number of us were very involved in the
construction of that part of the statute, and, of course, these
guardrails are fairly wide in terms of what States can do to
build accountability systems.
States have to set a goal for performance of schools and
subgroups. They have to track whether schools and subgroups are
meeting those goals, and then if they aren't, then they have to
provide interventions. It's up to the schools as to what their
goals are and then what those interventions are.
There clearly would be a point at which a school district
is in violation of those requirements. I would suggest--this is
just me talking--that if a school was failing, and they just
changed the name of the school, that would not likely be an
intervention that would comply with the statute. To me,
regulations are also a means by which we help school districts
understand how to comply with a law that is relatively broad in
its requirements as to how school districts go about building
accountability systems.
I just wanted you to speak for a moment on the--when
regulations are done right, it's actually helpful to school
districts so that they won't get surprised by an enforcement
action on the back end, because you still retain not only
authority but responsibility to enforce this law. So as to not
be capricious in the enforcement, you want to give some school
districts, certainly on accountability sections where the
guardrails are wide, some idea ahead of time as to how they
stay in compliance with the underlying law.
Secretary King. That's exactly right. Those are the
principles that are behind our development of the
accountability regulations, if you imagine a high school that's
struggling because they have a significant number of English
learners who are performing poorly. A good thing about ESSA is
there's flexibility for them to develop a tailored, targeted
strategy that responds to their need to acquire English
language proficiency that leverages their native language in a
thoughtful way.
At the end of the day, the district and State have to
ensure that there's actual progress. If years go by, and
graduation rates don't improve, academic outcomes don't
improve, there's got to be evidence that the State and district
are changing the strategy to get better outcomes, and the
regulations are a way to ensure that there are clear guardrails
for States as they do that work.
Senator Murphy. I just think it's important for all of us
to remember that you still retain the enforcement
responsibility. If the Department believes that a State or a
school district isn't in compliance with the statute we wrote,
it's up to you to come in and provide a remedy. Thus, the
regulations are not just a way that the Federal Government
tells a State what to do. It's a way to give some predictive
ability for States to know when they might run afoul of the
law.
Thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Senator Whitehouse.
Statement of Senator Whitehouse
Senator Whitehouse. Thank you, Chairman.
Secretary King, welcome. You're not really there yet, but
this is kind of a preview of coming attractions. I don't know
that the supplement versus supplant conversation really takes
us to it. In the education bill, I worked very hard on an
innovation schools initiative.
I worked very hard in Rhode Island for many months bringing
together all the different players who were usually in touch
with their national organizations as well to make sure they
weren't getting out of line with teachers, with principals,
with school departments, with reform groups, with everybody. I
worked very closely with the Chairman as well, and we were able
to get a pretty robust innovation schools piece into the Senate
bill.
The Senate bill then went into conference. I was not in the
conference negotiations. There was a conference vote at the
end, but the work was done with a much smaller group. I can't
speak firsthand to what happened. What I'm told is it was your
organization that wanted that innovation schools piece watered
down dramatically, and it was watered down in the ultimate bill
that was presented to conference for a vote, and I spoke to
that at the time.
In Rhode Island, our new education commissioner, Ken
Wagner, has just announced his effort at what he calls
empowerment schools to try to free up the gaps between the
State bureaucracy that oversees education and the municipal
bureaucracies that oversee education so that there's more room
for student-oriented and locally driven flexibility.
That's kind of on the small scale of what I was trying to
do on the larger scale with the innovation schools, because if
you actually are a school, and you actually want to do
something that is innovative, if you're looking at having to
line up your local school department to get behind it, and then
at the same time line up your State education authority to get
behind it, and then at the same time try to get the Federal
Department of Education signed up, that kills an enormous
amount of innovation in the crib, because you look forward to a
triple decker bureaucratic wrangle that most schools could
never bet they could get through.
This would basically create a tranche through it all, where
if you met certain standards, you could go forward. I can see
why folks within your Department might be suspicious of that,
but I really would urge you to try to look at the fact that we
need this innovation, particularly in the wake of the No Child
Left Behind mess, which by driving everybody into these testing
regimes basically drove non-testable curriculum out of a lot of
the schools where those kids were, frankly, entitled to a
better curriculum, but the program drove it off the agenda
because they were all about making sure their students got
through the tests.
I guess I'm just here--and you're going to hear it from me
over and over again. Please don't continue to back pedal on the
innovation schools agenda. I put a lot of work into it. It was
bipartisan in the Senate. Not one person ever came to me and
said, ``I don't like that. We don't need to do that.'' This was
something that was done in the dark of conference negotiations,
and that's not a great way to build relationships. I have to
tell you that.
I'm just putting the marker down. I really want to see the
innovation schools piece be robust in the way that you develop
it and in the way that your organization develops it, and I'm
going to be very, very concerned if I find that, in fact,
another cut gets taken at it as the regulations get developed
in order to reassert more Federal authority over these schools.
Because you're just not going to get innovation if people are
anxious about what they're going to have to deal with as they
try to sell that innovation program up through the triple
decker of bureaucracy that has been sitting on top of these
schools for so long.
I'll ask you to comment on that.
Secretary King. I just want you to know I very much share
your commitment to innovation. The new law creates a number of
important opportunities as States rethink their accountability
systems. There's an opportunity to broaden the definition of
educational excellence just as you've described to make sure it
includes science and social studies and world languages and
access to advanced course work and socio-emotional learning.
There's an opportunity for States to pursue an innovation
agenda in how they think about interventions in struggling
schools, to think about arts as a strategy to improve
performance in a struggling school, to think about career and
technical education as a strategy to improve performance in
struggling schools.
Senator Whitehouse. I get all that. My point is that when
you say for States to pursue an innovation agenda, that's not
necessarily getting me there. I need to have a system in which
a school can pursue an innovation agenda, because if the
teachers are just sitting there on the receiving end of the
State saying, ``Here's my new innovation agenda''--by the way,
they've been receiving innovation agendas from school
departments for decades now. It's a churn. There's always a new
agenda, and they always have to respond, and they do new
reports, and the local school-based innovation gets stifled by
that, and that's my concern.
Thank you. My time has expired.
The Chairman. Thank you, Senator Whitehouse.
Senator Murkowski.
Statement of Senator Murkowski
Senator Murkowski. Thank you, Senator Alexander.
Welcome. Secretary, the State of Alaska was compelled to
stop the statewide assessments that were underway this year.
Their assessment through the Alaska Measures of Progress began
on March 29, and through a series of failures--first of all,
there were a lot of different anomalies for students throughout
the State. You'd be going down through--question one is there,
question two is there, question three is nowhere. Where is
question three?
These were anomalies that were not just in one district but
in multiple districts. In some, there were, again, the skipped
questions. In some, there was no sound on the text-to-speech
accommodation tool, assorted error messages.
Then we find out that a backhoe severs the provider's or
the vendor's broadband Internet cable that sent the--basically,
the system fails out of Kansas. The cable that delivered the
test to Alaskan students and captured their answers kept
crashing. Every time the system crashes, the students have to
restart the test from the very beginning, meaning that they've
got to answer the same questions over and over again. The
system didn't save their answers.
When you think about the frustration of a student, they
don't like being in the test in the first place. Then when you
try, and things stop and start and stop and start, or are
inconsistent, it is extraordinarily frustrating. What we saw
was uniform testing conditions just were compromised and failed
us.
There was a period on Tuesday when it went down. Thursday,
they were told it was back up. Then we reported that further
widespread anomalies were there. The assessment portal wasn't
functioning. The cable hadn't been fully repaired. Basically,
it was a situation that was just deemed a failure, and our
acting secretary of education made the determination to cancel,
to stop the statewide assessment.
We were also told that if Alaska were to resume the
testing, despite all of these previous problems and the impact
that they've had on the reliability of the test results, the
validity of them, that the vender, the provider, AAI, is unable
to make a cached assessment platform work in the State, given
some of the complications and difficulties that we have with
broadband.
This is not a good situation, of course. This is a very
difficult decision that the State of Alaska made because of
just broad system failure. Given all of the problems that we
have seen related to this statewide assessment, can you give me
the assurance, as well as the State of Alaska and our
department of education, that the Department will not force
Alaska's students to resume testing this year?
Secretary King. We're very concerned about how the test
administration has gone in Alaska. Our team has been in touch
with Dr. McCauley, as have I. We've also been in touch with the
folks at the University of Kansas, the vendor that Alaska
selected, to try and get at the issues.
We have, unfortunately, in other States in past years had
issues around technical glitches. The key thing has been that
the States and the vendors have worked together to try to
resolve those as best they can and to ensure that we have an
assessment system that provides good information to parents and
teachers each year about student performance. We're going to
continue to work with Dr. McCauley and the University of Kansas
and try to see the best path forward.
Senator Murkowski. I would not disagree that you need to
try to work through technical glitches, and if I thought these
were just some technical glitches, I might not be so insistent
that we have some degree of discretion from you at the
Department that says this didn't work this year. It has
materially impacted the validity of this year's assessments.
I know that you have had prior situations, most
specifically with the State of Nevada just last year with their
statewide assessment. The Department allowed the State to
cancel that test without penalty. I'm told that Nevada just
received confirmation that there would be no penalty on them
for canceling the test due to the technical difficulties with
it.
I would ask that you look at the situation with Alaska and,
again, give me the assurance that the Department and your
Assistant Secretary Designate Whalen and the Department really
as a whole conduct the same thorough and fair and responsible
review of the Alaska situation, just as you did with Nevada,
and give Alaska the opportunity to provide all data and to
answer all questions in writing before you make any final
decision as to whether you require them to conduct assessment
or if, heaven forbid, you should think that any form of penalty
might be appropriate.
This is a situation, again, where you had a very
unfortunate issue in Kansas with a backhoe taking out the cable
there. We have in Alaska difficulties with broadband access in
the first place. We are not sitting in the same place as
Nebraska or Iowa or wherever. We have some very real
challenges, and we saw that as it started to play out. I would,
again, urge you to look critically at the situation in Alaska,
because it certainly does not appear to me that these are
technical glitches that need to be worked through.
Secretary King. I can assure you we're taking the same
approach here as we took in our work with Nevada, and there
have been some other incidents over the years with States. I
will say one distinction is that Nevada made a variety of
efforts to ensure that where it was possible to administer the
assessment they did so. Again, we're talking with Dr. McCauley
and trying to make sure that we have a thoughtful approach
going forward.
The Chairman. We need to move on.
Senator Murkowski. If you could make sure that my office is
looped into that, I would appreciate it as well.
Secretary King. Absolutely.
Thank you, Mr. Chairman. I appreciate it.
The Chairman. Thank you, Senator Murkowski.
Senator Franken.
Statement of Senator Franken
Senator Franken. Thank you, Mr. Chairman.
I just came from the Energy Committee, which Senator
Murkowski is chair of, and we were talking about workforce
development, and that brings us to STEM, and I want to discuss
that in a minute. First, I want to thank both the Chairman and
the Ranking Member for the leadership they showed in putting
what I call ESSA together. I thought they led a great process,
and I thank them both.
Welcome, Dr. King. I want to talk about implementing a
couple of things that I have in this, so I'll try to do it
fast.
The foster kids. I wrote a provision in this with Senator
Grassley to allow foster kids--and have a mechanism to do it--
to stay in the school that they're in, if they want to, when
they change foster homes. I've gotten to know foster kids, and
foster kids very often will have 10, 11, 12 foster sets of
parents during their youth, during their life.
When they would change foster parents who might live in a
different school district, the result often would be that they
were forced to change schools. This is actually so
counterproductive because, very often, the school they're in is
the only constant in their life. It may be a teacher who is a
mentor, it may be a sport that they're in or an activity
they're in, and, of course, their friends.
What Senator Grassley and I did was put in language saying
if the student chooses to stay in the school, then the school
district and the social welfare agencies in the area have to
find a way to allow that student to do it. They have to do it,
and that may mean paying for the transportation, and they have
to--the school district and the social welfare agencies in the
area have to figure it out.
What I want to make sure is that States are supported as
they implement this new provision. Will you provide strong
guidance in this area by this summer?
Secretary King. Absolutely. This is an important issue to
me, personally. Having lost both of my parents when I was a kid
and moved around between family members, I'm very sensitive to
the challenges that foster kids face and the consequences of
moving between homes and schools frequently.
One of the first guidance documents we've committed to
develop is on issues around foster youth, and we expect this
summer or fall that we'll be able to put that out. We are
working very closely with Health and Human Services on this to
make sure that we stay coordinated on the issues of continuity
in school, on the kinds of supports that schools can provide,
issues around transportation and so forth.
Senator Franken. Thank you. As I said, I just came from the
Energy Committee. We were talking about advanced manufacturing.
We were talking about how desperate we are for workers that are
skilled, especially in science, technology, engineering, and
math. It was so apparent in this exciting hearing we had on
advanced manufacturing that this is something we need.
Nearly all the top 30 fastest growing jobs nationwide
require STEM skills, but we're lagging behind the rest of the
world. That's why I wrote the STEM Master Teacher Corps Act to
recruit topnotch STEM educators and keep them in the classroom.
The program will provide State grants to recruit, recognize,
and reward expert STEM educators. This network of STEM
educators would mentor their peers and participate in
professional development programs while receiving extra pay for
their work. This works. We've seen it work in certain States
that have already done it.
I'm pleased that there's an optional pot of money in ESSA
to create a STEM Master Teacher Corps. The new law says it's up
to the Department of Education to award grants for this
program. I was pleased that the President's fiscal year 2017
budget request includes $10 million for this program.
Secretary King, I just want to make sure that the STEM
Master Teacher Corps is developed as soon as possible. Do you
plan on awarding grants for this program, and, if so, what is
your time table?
Secretary King. We're very hopeful about the President's
budget request and want to work with you to advance that. We've
already begun work with States to think about how they might
implement a STEM Master Teacher Corps with funding or even with
existing dollars, and we're very hopeful that the budget
process will lead to the resources we need to make this program
a reality.
Senator Franken. OK. Thank you.
Mr. Chairman, I see that Senator Scott isn't here. Is he
returning to ask questions?
The Chairman. No.
Senator Franken. I'm the only thing between you and
gaveling this thing?
The Chairman. No. We have some questions. We're going to
have a second round of questions, but if you have another
question----
Senator Franken. Can I ask one more question?
The Chairman. Of course.
Senator Franken. Dr. King, this is about college. The fraud
in predatory lending practices at for-profit schools like
Corinthian College have victimized thousands of students
nationwide. These students now have a lot of debt, a worthless
degree, and on top of that, bad credit. To make matters worse,
the pervasive use of forced arbitration, which is a privatized
justice system that corporations, including many for-profit
schools, rely on when their customers or employees seeks
justice for being mistreated, have prevented students from
holding for-profit schools accountable in court.
An investigation of 27 for-profit schools by this committee
found that 21 of these schools have students sign arbitration
agreements as part of their enrollment process for any dispute
that may arise between the student and the school. These
clauses require that any student who has fallen victim to
fraudulent activity by a for-profit college, including
misrepresenting costs, the transferability of credits, the odds
of obtaining a job or salary prospects, is prevented from
obtaining meaningful redress. The only recourse these students
have is to seek relief from the Department of Education.
Dr. King, knowing what we now know about the widespread
fraud in the for-profit college industry, how are you going to
hold bad actors accountable?
Secretary King. I appreciate that question. In the
negotiated rulemaking process on borrower's defense, we put
forward to the negotiators proposals that would ban the
practice of mandatory arbitration in a variety of contexts.
That negotiated rulemaking process was not successful in
reaching consensus. We are now working on the regulations that
would implement borrower's defense that we'll put out for
public comment.
We also have created a new enforcement unit at the
Department led by a veteran enforcement attorney from the FTC,
and he's building up the capacity of that enforcement unit
because we want to ensure that when students seek higher
education, they get a meaningful education and a meaningful
degree. We know that there are institutions that aren't doing
the right thing. We've taken action against some, and we expect
with this enforcement unit that we'll be able to aggressively
act with respect to others.
Senator Franken. OK.
Thank you for your indulgence, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
Senator Murray, I have a few questions, but you're welcome
to ask any that you would like.
Senator Murray. I just have a few left.
Dr. King, during the ESEA reauthorization process, my
colleagues and I worked hard to make sure that the Department
retained its congressionally mandated authority to interpret
and clarify the new law through regulations. Why is the
authority ED maintains under the new law to clarify statutory
requirements through rulemaking so critical?
Secretary King. It's important to ensuring that the law
actually lives up to its civil rights legacy and advances the
quality of opportunity in the country. We know that in the past
there has been a history of States and districts under-
attending to the needs of English learners, students with
disabilities, students of color, low-income students, homeless
students, foster kids. This new law gives us the opportunity to
have lots of State and local flexibility, but there has to be
guardrails in place to ensure that States and districts protect
students' civil rights.
Senator Murray. So that we know wherever a student lives,
they will have some kind of protection for that.
Secretary King. That's right. The Department is a civil
rights agency with a civil rights responsibility to protect the
students who are most vulnerable.
Senator Murray. I wanted to ask you one more question about
English learners. In Tukwila School District, which is in my
home State, students speak more than 60 languages, and they
face numerous, very unique challenges learning English and
succeeding academically. ESSA makes numerous improvements to
ensure that English learners are supported and that States,
districts, and schools actually now are held accountable for
their performance.
How is the Department planning to support States to make
sure that they are prepared to implement these new requirements
with fidelity?
Secretary King. We think ESSA has many elements that are an
important step forward for English learners, including
incorporating English language proficiency into the
accountability systems, requiring targets for the progress
students will make to English language proficiency,
disaggregating the performance of English learners who have
disabilities and long-term English learners.
We are working with our negotiated rulemaking committee on
the assessment regulations that will address the participation
of English learners and certainly guided in that by the
feedback we have received from parents and civil rights
organizations and educators. We also will put out guidance on
serving the needs of English learners, ensuring that States
have clarity and examples of best practice on how to follow the
new law.
Senator Murray. That's really important, because this is a
new step for them. I appreciate that. Thank you.
Thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Murray.
I just have a few more questions, Dr. King. Senator Murphy
said in his exchange with you that you weren't prescribing a
methodology in the supplement not supplant section we were
discussing. You were merely saying that States and local school
districts could use their own methodology as long as they got
the result that was desired. Is that right?
Secretary King. They can use their own methodology in order
to ensure that they fulfill the principle of supplement not
supplant.
The Chairman. In defining what we mean in your proposed
rule--and I was listening to what you said, too, as you
described what that role was--would it be accurate to say that
the local education agency, the school district, has to
demonstrate that the combined State and local per-pupil
expenditure, including personnel expenditures at each title I
school, is not less than the average combined State and local
per-pupil expenditures in the non-title I schools? Is that
about right?
Secretary King. State and local funds to title I schools
has to be at least equal to the average non-title I school. An
approach might include looking at staffing and program
provision, but another approach might be a weighted student
funding formula approach.
The Chairman. In any event, it would have to include
teachers and personnel. Right?
Secretary King. It would include the total impact of the
allocation of State and local dollars.
The Chairman. Did you realize that that's precisely the
definition in Senator Bennet's amendment on comparability when
he sought to amend Section 1120, which didn't succeed and which
he acknowledged this morning didn't succeed? The effect of your
proposed rule is to change the comparability law which Congress
did not change.
Secretary King. Again, we're not addressing comparability
here. We're addressing the supplement not supplant.
The Chairman. No, but the effect of it would be. You would
have the same effect as if you were to change the comparability
law, which has not been changed since 1970.
Secretary King. That would depend on the circumstances in a
given district. The key in the district is that the title I
dollars would be genuinely supplemental and not used to
backfill.
The Chairman. But you're saying that in order to do that,
the spending in the title I schools, including teacher
salaries, has got to be not less than the average combined
State and local expenditures in the non-title I schools. That's
comparability. That's what we didn't change.
Secretary King. No. Again, here, because the focus is on
supplement not supplant, the question is whether or not the
total local and State effort is at least equal to the non-title
I school, and a school could address a gap in effort through a
variety of mechanisms. They could add advanced course work.
They could add a preschool program. They could take a number of
strategies. It's not saying that the services need to be the
same. It's saying that the allocation of title I dollars has to
be supplemental.
The Chairman. You're saying the total State and local
effort for the non-title I schools has to be the same as for
the title I schools. Right?
Secretary King. Has to be at least equal to the average
non-title I school, which, again, could result in variety
within a district.
The Chairman. Which, again, is comparability. That's what
comparability is. I sought to change it by introducing an
amendment to do what Senator Burr suggested, allowing Federal
dollars to follow children from low-income families to the
school they attend. That was rejected. Senator Bennet had his
amendment.
The changes in the supplement not supplant law are to some
extent, maybe a large extent, due to recommendations directly
from the Center for American Progress, the Federal Education
Law Group, and the American Enterprise Institute. I'm going to
read you a paragraph, which they said, and ask you to comment
on it.
They said, quote, ``It's important that the proposed
change''--the one that was made, that we made in supplement and
supplant--``would not look at whether the amount of State and
local money a title I school receives is equitable. Given the
significance of the problems caused by the supplement not
supplant test, this issue should be addressed on its own,
separate from other title I fiscal issues. Concerns over equity
can be addressed through title I's comparability requirement.''
What would you say to that?
Secretary King. Part of what they're referencing is the
number of problems that we saw with the supplement not supplant
approach under No Child Left Behind, that, indeed, it was a
burdensome process that did not achieve the desired goal of
ensuring that title I dollars are supplemental. We're not
making a change to comparability. We're making a change to
supplement not supplant to reflect a change in law.
Supplement not supplant is different under ESSA than under
NCLB, and we were asked by a variety of stakeholders to provide
clarity on implementation of supplement not supplant under
ESSA, and that's what we've proposed to the negotiated
rulemakers.
The Chairman. What you've proposed must have the effect of
equal spending of State and local dollars in title I schools as
well as non-title I schools before you get the title I money.
Isn't that correct?
Secretary King. It does not require equal spending. It
requires that the State and local funds in title I schools are
at least what is being spent in State and local funds in the
average non-title I schools. In a given district, you would see
still variety within that district.
The Chairman. That equalizes spending. If you say you've
got to spend at least as much here as the average of here,
that's what we call comparability, isn't it?
Secretary King. No. The decision to use the average non-
title I school means that there would be a variety of spending
levels in the non-title I school.
The Chairman. Section 1605 of the law says nothing in this
title shall be construed to mandate equalized spending per
pupil for State, local educational agency or school. What would
you say to that?
Secretary King. Again, this wouldn't equalize spending.
What it would say is that in the title I school, you've got to
be spending at least as much in State and local resources as is
spent in the average non-title I school. There would be a range
of spending levels within non-title I schools, so you would not
be requiring districts to spend the same in all schools. You
would be ensuring, importantly, that the title I dollars are,
in fact, supplemental and not being used to backfill.
The Chairman. There are plenty of ways to figure that out
without equalizing spending. This sounds to me exactly like the
kind of thing the Department got into with academic standards
with Common Core. You basically said States didn't have to
adopt Common Core, but then you came up with a requirement
that, in effect, required them all to do it, and it produced an
enormous backlash, which was a big part of the passage of this
law.
I would urge you to look carefully at this supplement not
supplant negotiated rulemaking proposal, which is in an early
stage, because, in my view, it violates the unambiguous
prohibitions that were in the law that the President signed in
December related to prescribing State and local funding
methodologies, mandating equalizing spending--you're not
supposed to do that--interfering with State and local programs
of instruction--prohibited from doing that--or controlling the
allocation of State and local resources.
It ignores Congress' intent, which was to not change the
requirements on comparability. It regulates outside the scope
of the supplement not supplant requirement. It would impose
unprecedented burdens on State and local school districts,
requiring an overhaul of almost all the State and local finance
systems, giving districts few options other than forcing the
transfer of teachers to new schools, perhaps in direct conflict
with collective bargaining contracts with teachers'
organizations, and it would require States to move back to the
burdensome practice that we had before. As I mentioned earlier,
according to the Great City Schools Council, it would cost $3.9
billion just for the 69 urban school districts to address State
and local funding disparities, $9 million in the department
alone.
I have only one other question--flexibility for eighth
grade students taking advanced math. One thing we heard about
more than anything else in this reauthorization was over
testing and more flexibility in testing, and we thought we
provided that. The new law permits a State to allow eighth
grade students to take the end of the year test for passing the
advanced math test in place of the eighth grade test.
In other words, if you're an eighth grader, and you can
take algebra 2, you can take that instead of the basic eighth
grade test. That just makes common sense, and, in fact, the
Department's waivers allowed that. You are proposing to add a
new requirement, one that you apparently just made up, which
says a State can be granted this flexibility only if it
demonstrates that it offers all students in the State the
opportunity to be prepared for and to take advanced mathematics
course work in middle school.
Where did that come from? That's not in the law.
Secretary King. This is being discussed by the negotiators.
The key question here is to the extent that opportunities are
to be equitably provided to access advanced course work. We
know, for example, that there are high schools around the
country serving large numbers of low-income students of color
that don't even offer algebra 2 or chemistry. We know that
there are middle schools serving high numbers of low-income
students of color that don't even offer access to the algebra
course.
If you're going to have an assessment system that provides
comparable information about equitable access to opportunity in
schools, you need to ensure that students have that
opportunity. For a school to not offer students access to that
advanced course means that you are then using the assessment
system to, in a sense, reify inequitable access----
The Chairman. Dr. King, if you'll excuse me, if you were a
U.S. Senator on the floor of the Senate, that would be a very
good and persuasive argument, but you're not. We could have
written that into the law, but we didn't. We basically said
that a State may allow an eighth grade student who is taking an
advanced math course to take it and not have to take the test
in the basic course at the same time.
You've come along and said,
``That's an interesting idea, and we think it would
also be good to make all the States and 100,000 public
schools change the way they offer advanced math courses
to include a lot more students.''
That may be a noble aspiration, but it's not in the law.
For adding this requirement to money that constitutes about 4
percent of what State and local governments spend on 100,000
public schools--those decisions ought to be left to the elected
officials, not to people in your Department.
Secretary King. You can't get comparable, valid, reliable
information about student performance if the assessment is only
available to some students and not others. The goal here is to
ensure that the assessment system provides comparable----
The Chairman. You're not in charge of the accountability
system. In fact, the law requires that the result of those
tests be a part of the State's accountability system. What
we're trying to get rid of is you here telling States what to
do with the results of tests. It must have made common sense to
say that if you're an eighth grade student taking an advanced
math course that you can take it and you don't have to also
take the basic eighth grade test, period. The Department
allowed States to do that in the waiver. Why are you making
this up now?
Secretary King. The design of the accountability system--
yes, there is State flexibility around the accountability
system, but the States are to generate comparable information
about the performance of students within any given grade. If
you've got an assessment that's available only to some
students----
The Chairman. Who's going to decide that? Are you going to
decide that?
Secretary King. States would decide how that would work in
their districts.
The Chairman. Why not let them decide it?
Secretary King. We are.
The Chairman. No, you've said in your proposed rule--and I
won't belabor it any further. I hope you'll go back and take a
look at this. You've basically put in a new requirement that
you can only take this flexibility Congress gave if you do what
the Department now wants to legislate, describe that you offer
all students in the State the opportunity to be prepared for
and take advanced mathematics course work in the middle
schools. It's kind of hard to know what that would mean,
anyway.
You were asked by one of the Senators--do you have anything
else to tell us about--you sent proposed regulations to the
Office of Management and Budget last week on accountability
systems, State plans, innovative assessment pilot. When are you
going to make details of those proposals public? What's your
intended timeline for final regulations, and what can you tell
us about other areas of the law that you intend to issue
guidance on and provide technical assistance?
Secretary King. The accountability regulations are now with
OMB for review. We expect later this spring or early summer
that those regulations will be posted for comment. We will
later develop regulations based on the input that we have
received from stakeholders on State plans and on the innovative
assessment pilot. We expect those regulations to be out for
public comment in the fall.
The goal is to have all the regulations in place by the end
of the year so that States are in a position to develop plans
in spring and summer of next year, submit those plans in spring
or summer of next year so that they are ready for full
implementation in September 2017. We've also committed to
develop guidance on services for homeless students, foster care
students, and English learners.
We're continuing to gather feedback and input from
stakeholders, and we'll potentially develop additional guidance
documents based on what States, districts, educators, parents,
civil rights organizations are telling us they need in order to
ensure clarity and have examples of best practice.
The Chairman. Thank you, Dr. King. I hope you'll reflect on
this hearing today. We have many different opinions on this
committee, and we were able to come to a law. Each of us can
speak for ourselves, but for me, it's very clear that we did
not intend that you come up with some clever way to use one
provision, the supplement not supplant provision, to change
another provision, the comparability provision, that we
deliberately did not change because we couldn't agree on how to
change it. We left the law exactly like it is.
I hope you'll take another look at that. Your
responsibility is to faithfully execute the law and abide by
the letter of the law, and I don't think the beginning of those
rule proposals suggest that that's what some of the employees
are doing. We'll look forward to following the implementation
of the law carefully during the rest of the year.
If there are no other questions--let me get my concluding
comments here. The hearing record will remain open for 10
business days. Members may submit additional information and
questions to our witness for the record within the time if they
would like.
Thank you for being here, Dr. King.
The committee will stand adjourned.
[Whereupon, at 11:53 a.m., the hearing was adjourned.]