This op-ed is cross-posted from U.S. News and World Report
By Scott Sargrad
Congress would hurt states, schools and students by unilaterally scrapping Every Student Succeeds Act regulations.
Last week, Sen. Lamar Alexander, R-Tenn., introduced a resolution to rescind regulations implementing the Every Student Succeeds Act. While this action is not surprising when Congress and the Trump administration have already scrapped key protections for consumers and the environment, it is a terrible way to govern. Worse, it would cause real harm to states and districts trying to move forward under the law – and most importantly to the 50 million students in our nation’s public schools.
When Congress passed the Every Student Succeeds Act in December 2015, it was obvious to anyone who read the law that regulations were necessary to provide additional clarity to states on how to comply with the law. The hundreds of pages of legislative text, disjointed descriptions of requirements and lack of specificity around key terms did not lend themselves to easy, straightforward interpretation.
To address these concerns, the Obama administration released proposed regulations in May 2016. More than 21,000 people commented on the proposal before it was finalized in November. Everyone from states to school districts to teachers’ unions to civil rights groups voiced appreciation for the final rule.
Of course, three weeks before that final rule was published, there was a presidential election. So it’s reasonable that the new administration would want to reconsider what’s in the regulation. But the Department of Education is entirely able to do that without unnecessary interference from Congress. By invoking the little-used Congressional Review Act and unilaterally striking down the rule, Congress would prevent the department from ever issuing any regulations regarding state plans or accountability systems.
This is a dangerous gambit by Republicans in Congress, especially since many of them have been around long enough to remember the critical flexibility that the George W. Bush administration granted to states through regulations under No Child Left Behind. Several years after the law was passed, the Bush administration gave states the ability to measure student growth instead of only proficiency, and to create “differentiated accountability” systems that didn’t label every school as failing.
What’s more, in trying to use the Congressional Review Act to overturn Every Student Succeeds Act regulations, Congress would effectively be ignoring the 21,000 people that made their voices heard during the original public comment period. Unfortunately, Alexander and his colleagues seem to care more about making a political point of overturning President Barack Obama’s actions than about the voices of their constituents. This destructive approach is particularly galling when Republicans control both houses of Congress and the executive branch. It would be remarkably easy for Secretary of Education Betsy DeVos to revise the final regulations by seeking input from the public and Congress and creating a new compromise rule.
This shouldn’t be a partisan issue. Both Randi Weingarten, the president of the American Federation of Teachers, and Michael Petrilli, president of the conservative Thomas B. Fordham Institute, agree that scrapping the regulation entirely is a bad idea. Of course, Weingarten and Petrilli wouldn’t likely see eye to eye on what the regulation should ultimately include. But they both believe in the need for clear rules to guide implementation in a way that helps students. And the entire point of the public comment process is that the department can consider their ideas – and those of anyone else interested – and incorporate those ideas in a rule.
A number of very smart commentators have already written on the substantive value of the regulations in protecting vulnerable students and ensuring that states and districts meet their responsibilities under the law. But separately from the education policy issues, there is a broader problem with the use of a blunt instrument like the Congressional Review Act and a dangerous precedent with widespread use of this tool.
You can pick your analogy – using a hammer when you need a chisel, wielding a cleaver instead of a scalpel – but the result is the same: broad-based destruction that can’t be repaired instead of precise, surgical adjustments. This is a thoughtless approach to governing that creates confusion and uncertainty across the country and ultimately harms disadvantaged students. Congress needs to let the department do its job and implement common-sense regulations that help states, districts and students.
Scott Sargrad is an Education44 alum and the managing director for K-12 education policy at the Center for American Progress.