06.29.16

Alexander: Like Humpty Dumpty, Congress Chose Words in Education Law Carefully and They Mean What They Say

Tells Education Secretary that accountability regulation must follow the law Congress wrote to fix No Child Left Behind

 “I want to make sure than any regulation you propose about accountability is consistent with the words we chose and the intent of the bill the President signed.” 

WASHINGTON, D.C., June 29 –Senate education chairman Lamar Alexander (R-Tenn.) today told Secretary of Education John King that any regulation the department proposes about accountability must be consistent with the words Congress carefully negotiated in writing the law. 

Humpty Dumpty said ‘When I use a word it means just what I choose it to mean – neither more nor less.’ Like Humpty Dumpty, we chose our words carefully,” Alexander said. “We did when we wrote the law fixing No Child Left Behind. The words we used were debated and carefully and deliberately chosen. We meant for the words to mean what they say – nothing more, nothing less.”

At the committee’s fourth oversight hearing on the Every Student Succeeds Act, Alexander raised concerns about provisions concerning state academic standards and federal tests in the department’s accountability regulation, which he said “goes to the heart of the law to fix No Child Left Behind.”

He asked: “Does the proposed rule keep the federal government in the business of setting state academic standards? We changed the law from requiring a state to demonstrate they have adopted challenging standards to saying that all a state had to do was assure the secretary it has adopted those standards. We chose our words carefully. But your proposal in this regulation says that a state must ‘provide evidence at such time and in such manner specified by the Secretary’ that it’s adopted these standards.”

He continued: “Does the proposed accountability rule get the federal government back in the business of deciding which schools are succeeding or failing? It appears to reinstitute the failed No Child Left Behind formula – requiring that math and reading tests be the primary measure for deciding whether schools are succeeding or failing.

“You’ve invented out of whole cloth a so-called summative rating system that’s nowhere in the law that would essentially require all states to come up with an A through F system for all of their schools based primarily on test scores on federally mandated tests in math and reading.”

Alexander said the August 1, which brings the end of waivers under No Child Left Behind, must be “the end of the Mother May I? era.”

Along with the end of the waivers, it’s the end of the standards mandate, the Adequate Yearly Progress mandate, test-based accountability, the school turnaround models, Highly Qualified Teacher requirements, and teacher evaluation mandates.

“Those responsibilities have now been restored to states and local school boards and classroom teachers. Our hope is this new flexibility in the law and unleash a new era of innovation and excellence in student achievement—one that recognizes that the path to higher standards, better teaching and real accountability is classroom by classroom, community by community, and state by state—and not through Washington, D.C.”

Below are the chairman’s remarks:

Thank you for being here today for our fourth oversight hearing on the Every Student Succeeds Act.

You and I have had some debate over the meaning of the words in the law.

When Humpty Dumpty said "When I use a word it means just what I choose it to mean – neither more nor less."

Like Humpty Dumpty, we chose our words carefully. And we did when we wrote the law fixing No Child Left Behind. In 2015, we had 3 hearings, and there were 58 amendments to the Senate bill considered in this Committee. Then, we incorporated 52 member priorities into a substitute, considered 78 amendments during debate on the Senate floor, considered another 9 amendments during our Conference with the House, and finally came to a consensus.

The words we used were debated and carefully and deliberately chosen. We meant for the words to mean what they say – nothing more, nothing less.

That, of course, is our job.

The Constitution settled that a long time ago – an elected Congress chooses the words that make the laws. It is the executive’s job to implement the law in a way that is consistent with the meaning of those words.

Let me give you an example of doing that properly:

When I had your job, in 1992, Congress did something I very much disagreed with – it passed legislation adopting a pilot direct loan program.

I had argued that the Department of Education had no business being a bank for millions of students and there were far too many problems, risks and costs. But Congress disagreed, passed legislation, the president signed it and adopted a direct loan pilot program.

After the president signed the bill, I had about as much time left in my term as you do in yours this year, it was my job to start implementing the law Congress passed with which I disagreed.

So that’s what I did. And I faithfully followed the words. And I asked all the universities if they would like to be a part of the pilot program. And over time about 25 percent did. I implemented the law the way Congress wrote it.

Now let me give you an example of how I think the Secretary of Education should NOT respond when implementing a law Congress has written:

It’s the proposed Supplement not Supplant regulation, which was rejected by a negotiated rulemaking committee.

It is a very simple provision. It simply says that federal Title I dollars that go to local school districts are not meant to replace state and local dollars for schools.

If you give Title I money to a school, a school district has to show that the school is getting the same amount of state and local dollars it would receive if it didn’t get Title I money.

One witness testified at the last hearing that the law was so clear that there didn’t even need to be a regulation.

But you’ve come up with a proposal that forces school districts to show that they essentially equalized spending of state and local dollars among Title I and non-Title I schools. Although the new law in Section 1605 explicitly prohibits exactly that.

According to the Congressional Research Service, the proposed regulation “appears to go beyond what would be required under a plain language reading of the statute.”

The proposal is so far out of bounds, these are my words, I’m assuming any regulation, if there even needs to be one, will bear no resemblance to the proposal you drafted.

But let’s talk today about the accountability rule the department proposed on May 31.

This goes to the heart of the law to fix No Child Left Behind. In our work, we heard more about testing than any other subject. I even at first proposed we eliminate the federally mandated tests. But the more we got into it,  the problem wasn’t about the 17 federally mandated tests. It was about having  the U.S. Department of Education make all the decisions about what states, districts, and schools must do about tests, which is what we call the accountability system.

The federal government decided math and reading test results would determine whether teachers and schools were succeeding or failing.

And I believe the reason the bill got 85 votes in the Senate was because so many were tired, these were teachers, governors, chief state school officers, got tired of the National School Board telling states so much about what to do with the children in their schools.

So I want to make sure that any regulation you propose about accountability is consistent with the words we chose and the intent of the bill the President signed.

You are receiving comments until August 1. You’ll consider the comments.

I look forward to working with you to continue the discussions we had this week to ensure the regulations comports with the law.

Today I’ll focus on two main concerns – I’ll mention them just briefly.

ONE, does the proposed rule keep the federal government in the business of setting state academic standards?

Senator Roberts asked you about this during your confirmation hearing.

Under the No Child Left Behind the Department in effect mandated, that states adopt the Common Core standards.  38 of the 42 states that received waivers fully adopted Common Core at some point.

The new law repealed that effective mandate in at least 5 different specific prohibitions. There was nothing unequivocal about that.

We also changed the law from requiring a state to demonstrate they have adopted challenging standards to saying that all a state had to do was assure the secretary it has adopted those standards. We chose our words carefully. 

But your proposal in this regulation says that a state must “provide evidence at such time and in such manner specified by the Secretary that” it’s adopted these standards

Wouldn’t this give you the power to reject the standards by rejecting the evidence?

TWO, does the proposed accountability rule get the federal government back in the business of deciding which schools are succeeding or failing?

It appears to reinstitute the failed No Child Left Behind formula – requiring that math and reading tests be the primary measure for deciding whether schools are succeeding or failing.

You’ve invented out of whole cloth a so-called summative rating system that’s nowhere in the law that would essentially require all states to come up with an A through F system for all of their schools based primarily on test scores on federally mandated tests in math and reading.

The whole point of the law was to return to the states whether to do that or not. I know that New York City and Florida had an A through F system, but other states might not want to do it that way.

Senator Murray often talks about the law’s guardrails—and we agreed to place some guardrails in this law on what states must and may not do – but again we choose our words carefully.

They were carefully and vigorously negotiated. And any regulation has to stay within those words.

In fact, the law also includes some very specific guardrails on the Secretary, specific prohibitions.

For the last 15 years, the federal government has gradually become, in effect, a national school board. Congress decided last year to reverse that trend. The president signed that bill.

That should put an end to it.

On August 1, we really come to the end of an era. I call it the end of the “Mother May I?” era. And era when governors and chief state school officers had to come to Washington to get permission to do a number of things about their schools.

Those conditional waivers are gone.

The following mandates are gone from No Child Left Behind:

The Common Core mandate

The Adequate Yearly Progress mandate

Test-Based Accountability

The School Turnaround models

Highly Qualified Teacher requirements

Teacher Evaluation mandates

Those responsibilities have now been restored to states and local school boards and classroom teachers. Our hope is this new flexibility in the law will unleash a new era of innovation and excellence in student achievement—one that recognizes that the path to higher standards, better teaching and real accountability is classroom by classroom, community by community, and state by state—and not through Washington, D.C

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