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You wouldn’t know it from cable news, the newspapers, or most of the rest of the national media outlets, but the Every Student Succeeds Act (ESSA) is getting very, very close to replacing No Child Left Behind. The new bill reflects conservative reticence about a strong federal role in education: it gives states considerable flexibility in identifying and improving underperforming schools.

So if you hated No Child Left Behind’s broad goals for student achievement and the attached accountability incentives, I have good news! Most of that is disappearing in ESSA. States are still required to assess students every year, but the law gives them “acres of new running room” to set up their own systems for deciding what to do about the results.

In other words, if the bill passes, states will take over most of the responsibility for ensuring that underserved student populations receive equitable resources and treatment. If you trust your state to prioritize these kids — low-income students, dual language learners, children of color, etc — in a steady, measurable way, you’ll like the bill fine. If — like me — you’re skeptical that most states’ leaders are willing to spend the political capital it takes to keep their systems focused on these children, you’ll wonder how the bill ever got this far.

“This far,” by the way, is pretty far indeed. The House and Senate each passed bills to replace No Child Left Behind and combined them into a single bill in conference committee negotiations just before Thanksgiving. The House passed that bill earlier today. It looks extremely likely that the Senate will follow and President Obama will sign ESSA into law. (Obligatory crow-eating: I was wrong about the bill’s prospects.)

Beyond the law’s general bias towards decentralizing accountability decisions to the state and local level, the law makes a few other important changes relevant to how schools serve dual language learners (DLLs).

1) Funding. The bill would authorize $756 million for Title III (the federal government’s primary investment in DLLs). Is that a lot? While it’s more than Title III has usually received, there are also many more DLLs in the program now than before. There were nearly 4.5 million DLLs receiving Title III services in the 2013–14 school year. If there are around that many DLLs enrolled in 2017, the $756 million would work out to about $166 per student. In 2002, Title III received $664 million to serve around 3.6 million DLLs ($184 per student). So it’s not necessarily a huge boost. Interestingly, ESSA authorizes steady increases of Title III funds until 2020, when they would jump to $885 million. 

In any event, we should remember that authorizing the use of these funds isn’t the same as actually appropriating the money for these students. That’s a separate process. For comparison: No Child Left Behind authorized up to $750 million for Title III when the law went into effect in 2002, but Congress only appropriated that much money once (in 2010). For fiscal year 2015, Title III received $737 million.

2) Accountability Systems. As I noted above, the bill would make big changes here. Title III accountability is gone. Districts would still collect data on DLLs’ growth towards and attainment of English proficiency (i.e. the old Title III accountability metrics), but poor performance on these wouldn’t mean anything for schools or districts’ Title III dollars.

Instead, states would be required to build English proficiency into their Title I accountability systems. The theory is that including these students in a bigger funding stream would get them more attention. NCLB’s Title III accountability provisions have always struggled with of being too mild to force real changes in schools — in part because they’re part of a relatively small funding stream. Remember those Title III numbers I cited above? Title I was a $14.5 billion funding stream in 2015. And Bellwether Education’s Chad Aldeman has suggested that ESSA would, in fact, lead to schools with high numbers of DLLs being identified for improvement at disproportionately high rates (for better or worse).

Now for the other hand. The challenge with this move is to make sure that this relatively small group of students remains prominent enough. These students got their own funding stream and accountability system in NCLB in part because they’ve historically been overlooked in broader efforts to improve educational equity. Recall that Title I dollars are allocated to districts and schools with high numbers of low-income students. Title I funds served 24.1 million children in the 2013–14 school year — more than five times the number of DLLs in Title III programs last year.

So: would the Department of Education really be able to get states to pay extra attention to DLLs in that much bigger Title I context? Remember, the big threat animating ESSA accountability (just as it is NCLB) would be straightforward: “the Secretary may withhold funds…until the Secretary determines that the State has fulfilled those requirements.” Would it be willing (or even able, given the many ways that ESSA limits the Department’s power) to pick fights over states’ accountability systems when DLLs’ performance is the only sticking point? We’ll see.

3) Accountability Consequences. I’ve broken this out separately to emphasize that ESSA would leave considerable distance between states’ designs of their accountability systems and what is actually required of districts and schools that are identified. As I put it in a recent column,

Each state’s accountability system must incorporate students’ math and reading achievement, though states have considerable sway in determining how much weight these two measures have. States may also incorporate other measures in determining whether schools are succeeding, such as attendance, student engagement, school climate measures, teacher engagement, participation in extracurriculars, and so on…Schools that finish in the bottom 5 percent of their particular system for no more than three years must be identified for improvement. Same goes for dropout factories (schools with a graduation rate below 67 percent)…Schools with any subgroup of students performing as poorly for a state-determined number of years (1? 4? 13? 25?) as the bottom 5 percent of schools are also identified as in need of improvement. The subgroups include African-American, Hispanic, [DLL], low-income, and/or Asian-American and Pacific Islander students.

There’s lots of wiggle room in here. States would define how “the lowest-performing 5 percent of schools” are to be identified. They would have considerable say in determining how long schools must underperform before being identified as needing improvement.

Perhaps even more importantly, though, when a school is identified, there would be even more flexibility. ESSA would require an identified school’s district to design its own “evidence-based interventions” in conjunction with community stakeholders, based on a needs assessment conducted at the school level. The improvement plan would be approved at the school, district, and state level.

Evidence-based policies and local involvement are good things. Still, there are (at least) two big challenges for this approach to accountability. First: “evidence-based” is meaningless language as far as education policymaking goes. Most new policy ideas are contested turf, where the research backing is mixed (and usually remains that way for a long, long time). There’s evidence to support experimenting with basically anything — and state education agencies will be exceedingly unlikely to pick a fight with districts over an alleged lack of evidence for whatever new thing they’d like to try.

Second: “evidence-based” ideas that are dramatic enough to turn around chronically-failing schools are almost always deeply challenging to current school and district actors. But local generation and approval frequently generates improvement plans that are insufficiently aggressive to change these schools’ trajectories. ESSA requires states to do something “more rigorous” with schools that aren’t improving after four years of locally-driven improvements, but doesn’t specify much. Under NCLB, persistent local failures result in federally-driven changes to how schools operate. Even though NCLB’s mandates for struggling schools are big and unwieldy, they have the virtue of putting considerable external pressure on dysfunctional local education environments.

Here’s what I think this means for DLLs in struggling schools: under NCLB, their schools also generated improvement plans. But local options in designing these plans were: 1) narrowed by NCLB’s rules, and 2) backstopped by federal pressure (if the school failed to improve after five years of turnaround efforts, NCLB required major overhauls). Under ESSA, DLLs will have to count on local and, in the most persistently-struggling schools, state leadership. In other words, they’ll have much more flexibility than NCLB’s relatively limited options. And how they use that flexibility will make all the difference as far as DLLs are concerned. 

This gets back to my assessment at the beginning: DLL stakeholders who generally trust their local leaders to prioritize DLLs’ needs should be excited about this bill. DLL stakeholders who don’t trust their local leaders but believe that their states can be counted on to move aggressively to put pressure on schools that aren’t serving DLLs well…should be satisfied by this bill (with some reservations). DLL stakeholders who worry that their local leaders won’t make tough decisions to improve how schools serve these kids, and also don’t trust their states to force those leaders’ hands — should be worried. 

4) Data (and Accountability Again). In NCLB, DLLs who reach English proficiency leave the subgroup and are monitored for two years as former-DLLs. Under ESSA, states would be able to include the performance of recently-reclassified DLLs in the EL subgroup for the purposes of state accountability for up to four years after reclassification.

Presumably this is a decision that states would have to make and hold constant across districts and schools. If states allow variability on which recently-reclassified students are included in the DLL subgroup, it would be much easier to hide DLLs’ achievement by shuffling them into or out of the EL subgroup depending on their assessment performance. This is precisely the sort of chicanery that worries folks (like me) who think that states should have limited flexibility on how they measure and report achievement data for underserved students.

There are other changes — we’ll be publishing a post later this week on how the new bill changes rules for how schools, districts, and states gather and use assessment data on recently-arrived DLLs’ achievement.

**Note: it’s early days, and we’re still picking through ESSA to make sure that we understand all of its (many) moving pieces. The foregoing is just a down payment on future analysis, and I reserve the right to have gotten some of the details and/or judgment wrong. 


This post is part of New America’s Dual Language Learner National Work Group. Click here for more information on this team’s work. To subscribe to the biweekly newsletter, click here, enter your contact information, and select “Education Policy.”