Scholars reflect on whether ESSA’s regulatory structure promotes or inhibits educational equity.
Over the last sixty years, the federal government has adopted laws aimed at eradicating inequality among students, starting with the Johnson-era Elementary and Secondary Education Act (ESEA). In 2001, ESEA was rewritten and renamed No Child Left Behind (NCLB). NCLB expanded federal oversight over education by mandating standardized test requirements on the premise that measurable goals would improve educational outcomes. It also required states to report student performance by race, disability, English language proficiency, and income level and take action on discrepancies.
NCLB proved unpopular with teachers and parents, leading the U.S. Department of Education to offer time-limited waivers to states. Then in 2015, Congress passed the bipartisan Every Student Succeeds Act (ESSA), which replaced NCLB and narrowed the role of the federal government in setting education policy.
ESSA grants states greater authority and flexibility over K-12 education by shifting some decision-making powers to state and local actors. These powers include state control over when and how to use standardized tests to measure student performance. They also include powers over the establishment of academic standards and the allocation of resources to underperforming and disadvantaged subgroups of students.
Under ESSA, states must submit their established goals, standards, and plans for implementation to the Department of Education, which responds with feedback and, eventually, approval. In this way, the federal government creates accountability measures for states to submit ambitious yet feasible school plans committed to supporting students equitably.
Early data have indicated that many states have not been meeting their equity requirements. Civil rights organizations have expressed worry about whether all states are complying with ESSA and whether state plans adequately meet the needs of students of color, students with disabilities, and English language learners, among others.
The arrival of COVID-19 in spring 2020—ESSA’s final year of implementation before being reauthorized in 2021—brought even greater challenges to states in terms of complying with the federal law. Already struggling to meet the demands of remote learning and widening achievement gaps, the majority of states received waivers of reprieve from ESSA’s state assessment and accountability system requirements.
Then, in January 2022, the Department of Education released a draft FAQ re-establishing school accountability requirements and suggesting how states could improve their educational systems. Some experts have viewed this draft statement with optimism that states and districts will reevaluate their educational systems and prioritize equitable access and opportunity.
In this week’s Saturday Seminar, scholars discuss ESSA and whether the law narrows or widens equity gaps in American public education.
- In a working paper published in the Consortium for Policy Research in Education, Joanne Weiss and Patrick McGuinn of Drew University discuss the evolving role of state education agencies (SEAs), particularly after the passage of ESSA. Weiss and McGuinn explain that ESSA has fewer federal rules, which expands the state role in education. To implement education policy successfully, states must recognize the capacity of SEAs to support local districts, they contend. Accordingly, Weiss and McGuinn argue that states must adequately fund SEAs and that SEAs need to adapt by reorganizing and prioritizing their functions. They further note that, although SEA leaders have unprecedented authority to enact change, they are constrained by the policy demands of diverse districts, school boards, and state leaders.
- In a recent paper, Chris Chambers Goodman of Pepperdine Caruso School of Law outlines several factors that distinguish ESSA from its predecessor, NCLB. Goodman reports that, under ESSA, processes for resource allocation, academic standards, and accountability are now subject to the discretion of each state. Goodman notes that some experts argue that this deferential, “hands-off” approach to ensuring education quality undermines past federal efforts to promote equal opportunity for low-income students. Goodman argues that low-income schools are twice as likely to be assigned novice or underqualified teachers, and that this will only increase under ESSA’s “bare minimum” certification requirement, as certification alone is an insufficient quality standard.
- In an article published in the Columbia Law Review, Michael Heise of Cornell Law School analyzes the effect of ESSA on the division of education policymaking authority between federal and state legislators. Heise argues that ESSA shifted policymaking authority back to states and local districts. But he notes that some critics are concerned that the decrease in federal control over education may negatively impact equal educational opportunity. Furthermore, Heise contends that ESSA limits the ability of the federal government to impose consequences on states and districts for student performance, causing some to worry that ESSA may hinder educational equity.
- In an article published in the California Law Review, Derek W. Black of the University of South Carolina School of Law considers whether ESSA successfully promotes educational equality. Black argues that ESSA cuts back on the federal government’s previous role in education and gives wide discretion to the states on reform efforts and accountability measures, permitting them to ignore ESSA’s goals of equality. Black also contends that ESSA weakens equity standards and effectively exempts school expenditures from equity analyses. Rather than increasing federal funding, ESSA merely gives states discretion on how to spend existing funds, providing another pathway that could lead to inequitable outcomes, he argues.
- In an article published in the Mercer Law Review, Christian Sundquist of the University of Pittsburgh School of Law argues that the federal government has abandoned its constitutional responsibility to protect students from racial and class-based disparities. He asserts that ESSA adopts a model of “competitive federalism” so that free market forces can shape public education through competition, consumer choice, and accountability. Sundquist articulates an alternative theory of positive federalism that would instead acknowledge the obligation of the federal government to address, rather than delegitimize, social justice and democratic fairness in schools.
- In a recent paper on equity principles and provisions in state ESSA plans, Yiting Chu of the University of Louisiana Monroe explores how concepts of equity are defined and applied by states. He finds that, in the context of ESSA, most states envision equity to include fair access to educational resources and opportunities. Fewer than half of the state ESSA plans, however, adopted a definition of equity based on fair outcomes. In addition, Chu finds that state ESSA plans generally have continued to measure student achievement goals from NCLB. Ultimately, Chu argues, states may actually be exacerbating educational inequalities by adopting vague policies, using inconsistent definitions of equity, and relying on market forces and testing-based standards.
The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.