1. FINALLY TIME FOR ESEA REAUTHORIZATION? RECENT ACTIONS IN CONGRESS Julia Martin, Esq. jmartin@bruman.com Brustein & Manasevit, PLLC Fall Forum 2015 BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 1

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3. WHAT DO YOU MEAN “FINALLY?” BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 3

4. NO CHILD LEFT BEHIND  Passed in 2001  Last reauthorization of the Elementary and Secondary Education Act (ESEA) of 1965 BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 4

5. THEN AND NOW  Then:  Bipartisan support for passage  “Ninety-nine percent pure” (Margaret Spellings)  Now:  “[T]he worst piece of education legislation ever passed by Congress” (Diane Ravitch)  “[A] slow-motion train wreck” (Arne Duncan) BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 5

6. WHY THE ERODING SUPPORT?  Not enough money  Too many regulations  Burdensome reporting/administrative requirements  Increased focus on test preparation: “teaching to the test”  Unreasonable goals: 100% proficiency by 2014  Top-down, one-size-fits-all model BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 6

7. PREVIOUS (FAILED) ATTEMPTS  Chairman Miller’s 2007 draft  Chairman Kline’s piecemeal 2011 reauthorization  Chairman Harkin’s 2011 Draft reauthorization  Attempted 2013 Reauthorization BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 7

8. THE ROAD SO FAR BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 8

9. STARTING OFF  House passed legislation (H.R. 5, the Student Success Act) on July 8 th with vote of 218 – 213  Senate passed legislation (S. 1177, the Every Child Achieves Act) passed Senate July 16 th with vote of 81-17  Pause in debate over August recess…and September…and October BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 9

10. CONTROVERSIAL ISSUES  Title I Portability  Included in House bill  Conservatives wants to include Private schools too  Not part of Senate Bill  Consolidation of Programs  House bill consolidates most Title IV programs into larger block grants to States, districts  Senate bill has consolidated funding stream for some, but preserves many Title IV programs BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 10

11. CONTROVERSIAL ISSUES  Accountability – more of a gray area  Level of involvement of federal government vs. what is left to States  How to ensure accountability?  Title I Formula  House bill would make very small change to prioritize rural districts  Senate bill contains trigger (Burr amendment) that would change title I formula to focus more on poverty if appropriations top $17 billion (unlikely) BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 11

12. CONFERENCE BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 12

13. OPTIONS FOR PASSAGE OF A BILL  If the bill has been passed by one chamber  goes to other chamber to start process anew  If there are similar bills passed but no will/time to conference  legislative “ping pong”  If there are similar bills passed in each house  conference  Members are appointed to work out differences  Issues can only be considered if they appear in one of the bills (conference committee can’t bring in new, additional issues)  New bill must be passed by both chambers to become law  Once bill is report by conferees, no amendments are permitted BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 13

14. CONFERENCE  Committee staff worked out differences between individual provisions over September/October, agreement announced in mid-November  House appointed conferees on 11/17  Republicans: Kline, Foxx, Messer, Roe, Rokita, Thompson, Guthrie, Russell, Grothman, Curbello  Democrats: Scott, Susan Davis, Fudge, Polis, Wilson, Bonamici, Clark  Senate appointed conferees morning of 11/18  Republicans: Alexander, Enzi, Burr, Isakson, Paul, Collins, Murkowski, Hatch, Scott, Kirk, Roberts, Cassidy  Democrats: Murray, Mikulski, Sanders, Casey, Franken, Bennet, Whitehouse, Baldwin, Murphy, Warren  Conference started afternoon of 11/18, concluded less than 24 hours later BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 14

15. CONFERENCE BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED.15 ESEA

16. MESSAGING FROM COMMITTEE LEADERSHIP BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 16  This is a compromise – it’s not what any of them would have designed on their own, but:  Need to update now  This is better than current law  Senate Committee Chairman Lamar Alexander: “I'll take 80% of what I want and save the other 20% for another day.“  Conference passed “framework” with a vote of 39-1

17. WHAT’S IN THE BILL? BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 17

18. THE EVERY STUDENT SUCCEEDS ACT ECAA + SSA = ESSA BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 18

19. THE BASICS  Based on the Senate bill (S. 1177)  Keeps broad outlines/structure of ESEA, i.e.:  States set standards  If schools fall below standards, intervention required  Use of standardized testing, subgroups  Hands over more authority to States, but keeps “strong federal guardrails” BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 19

20. WHAT’S THE STANDARD?  No mandate to adopt “college- and career-ready” standards and assessments  Instead, use “challenging” State-designed standards  Secretary cannot mandate/incentivize specific standards or assessments  Eliminates Adequate Yearly Progress (AYP) or mandate to achieve specific targets  Progress measured against student test scores  Testing in grades 3-8 and once in high school  Disaggregate achievement data by subgroup  Caps alternate assessments at 1% of overall assessments BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 20

21. INTERVENTIONS  State-developed accountability systems  School ratings must include academic indicators (grad rates in high schools), measures of school quality  Academic indicators must count “much more” than other indicators  But otherwise ratios largely up to States  Requires 95% participation in tests to be a factor in accountability  But explicitly waivable BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 21

22. INTERVENTIONS  Must design and carry out interventions in:  Lowest-performing 5% of schools  Schools with largest achievement gaps between subgroups (consistently underperforming subgroups for number of years as determined by the State)  High schools with graduation rates lower than 2/3rds  State must reserve 7% of Title I funds (OR FY 2016 reservation + FY 2016 SIG amount) for school improvement activities (subgrants to LEAs), and another 3% for “direct student services”  No requirement for SES, but LEAs may provide choice and transportation (up to 5% of funding) BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 22

23. TITLE I MECHANICS  Rank and Serve  LEA may lower 75% poverty threshold to 50% for high schools  Also keeps 35% discretion  New option to estimate poverty for secondary schools  Schoolwide programs  Maintains 40% threshold  But school below 40% poverty rate may receive a waiver from the State to operate a schoolwide program BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 23

24. FUNDING  Will use existing Title I formula  Amendment in conference will require IES to study formula and possible alternatives  Title II formula will transition through 2020 to focus more on poverty  Allows up to 50 district-level weighted student funding pilots under Title I  Maintains supplement not supplant and maintenance of effort requirements  But tweaks to supplement not supplant BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 24

25. TEACHER QUALITY  Eliminates Highly Qualified Teacher (HQT) requirements  But report cards still must include professional qualifications of teachers  Local plans must address disparities  States have choice of including standardized test scores in evaluations  Title II retains Teacher Incentive Fund, STEM Master Teacher Fund, money for school leader recruitment and support BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 25

26. PROGRAM ELIMINATION/ CONSOLIDATION  What’s out:  School Improvement Grants  Race to the Top  Investing in Innovation  Reading First  Advanced Placement  Physical Education  School Counseling  Education Technology *** this is a PARTIAL list***  What’s in:  New Local Academic Flexible Grant  Charter schools grant  21 st Century  Promise Neighborhoods  Impact Aid  Parent Engagement  Preschool Development Grant  Gifted and Talented  Title III  Migrant Education BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 26

27. CORE  WELL-ROUNDED  Changes “core academic subjects” to “a well-rounded education”  Includes courses, activities, and programming in: BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 27  English, reading or language arts, writing  science, technology, engineering, mathematics,  computer science,  foreign languages,  civics and government,  economics,  arts, music  history, geography,  career and technical education,  health, physical education, and  others as designated by State/LEA

28. SECRETARIAL AUTHORITY  Strictly prohibit Secretary from doing anything to:  Require/incentivize certain standards or assessments  Deny approval of State plans without good reason  Deny approval of waivers without good reason  Set new criteria through regulation or requiring adoption of certain policies in exchange for flexibility  Specify pieces of accountability system (beyond what’s set out in law)  Issue non-regulatory guidance that  provides a “strictly limited or exhaustive list” to illustrate successful implementation, or  that purports to be legally binding BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 28

29. TIMING  States’ waivers will expire on August 1, 2016  But continue supporting “priority” and “focus” schools until new law kicks in  Most formula programs under new law July 1, 2016  Impact Aid under new law October 1, 2016  Title I  Current assessments may remain in place through August 1, 2016  School ratings and interventions start with school year 2017-18  Competitive programs under new law October 1, 2016 BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 29

30. HURDLES BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 30

31. WHAT ARE THE HURDLES AHEAD? BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 31

32. PARTY POLITICS  Limited Democratic opposition  Lack of bipartisan cooperation in drafting?  Concerns about assessments/accountability  Conservative Republican Opposition  Bill doesn’t go far enough in opposing common core  Bill doesn’t do enough to pull back on federal role  Lack of Title I Portability (said House bill didn’t go far enough; wanted to use funds in private schools)  Money for early childhood (too many programs already?) BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 32

33. THE HOUSE’S MATH PROBLEM  Bills need 218 of 435 votes to pass in the House  By the numbers:  Democrats: 188  Republicans: 246  House Freedom Caucus (HFC) Republicans (estimated): 36  Other Republicans: 210  Need majority of Republicans (the Hastert Rule)  But ultimately passes bill 359-64 (all “no” votes conservative Republicans) BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 33

34. THE SENATE’S CALENDAR PROBLEM  To do before the end of the year:  Appropriations (CR expires December 11 th )  Tax extenders bill (December 31 st )  Energy bill  Transportation bill  …and ESEA??? BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 34

35. WHAT DOES THE FUTURE HOLD? BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 35

36. DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client- lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. BRUSTEIN & MANASEVIT, PLLC © 2015. ALL RIGHTS RESERVED. 36