Repeal without replacement: A bad strategy for kids
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Now that Betsy DeVos has been confirmed as U.S. Secretary of Education, it’s time to turn attention to the issue of governing. Believe it or not, a lot has been going on. Even though it’s been drowned out by the debate over DeVos, the stakes are equally high, particularly when it comes to implementation of the Every Student Succeeds Act (ESSA).

The passage of ESSA in December of 2015 reflected the leadership and bipartisan spirit brought to bear by President Obama and the four principal negotiators: Sens. Lamar AlexanderLamar AlexanderThe Hill's Morning Report - Presented by Alibaba - Democrats return to disappointment on immigration Authorities link ex-Tennessee governor to killing of Jimmy Hoffa associate The Republicans' deep dive into nativism MORE (R-Tenn.) and Patty MurrayPatricia (Patty) Lynn MurrayFaith leaders call on Congress to lead the response to a global pandemic Conservation group says it will only endorse Democrats who support .5T spending plan Support the budget resolution to ensure a critical investment in child care MORE (D-Wash.) and Reps. John Kline (R-Minn.) and Bobby ScottRobert (Bobby) Cortez ScottDemocrats hit crunch time for passing Biden agenda Biden celebrates anniversary of Americans with Disabilities Act Now is the time to end the subminimum wage for people with disabilities MORE (D-Va.). However, with Donald TrumpDonald TrumpTrump takes shot at new GOP candidate in Ohio over Cleveland nickname GOP political operatives indicted over illegal campaign contribution from Russian national in 2016 On The Money — Dems dare GOP to vote for shutdown, default MORE in the White House and a new House Education Committee Chair - Virginia FoxxVirginia Ann FoxxSixth House GOP lawmaker issued K metal detector fine Republicans unveil bill to ban federal funding of critical race theory Biden extends pause on student loan payments to 2022 MORE (R-N.C.) - there are serious questions as to whether ESSA’s bipartisan center can hold. 


While the Senate vote on DeVos yesterday consumed all of the political oxygen, the House passed, on a party-line vote, a resolution under the Congressional Review Act to overturn the ESSA accountability regulation finalized by the Obama administration in November.

The regulation provides clarification of ESSA requirements related to school ratings, timelines for school interventions, student participation in state assessments, and deadlines for submission of state plans.

When the CRA resolution was introduced, Foxx stated: “Even after Congress passed the Every Student Succeeds Act with overwhelming bipartisan support, the [Obama] administration insisted on using rules and regulations to unilaterally push its failed education agenda. These congressional resolutions send a signal that those days are over.” The resolution that the House repealed, however, is far more flexible than previous drafts and there is little, if any, daylight between the statute and the reg. 

One big problem with the CRA resolution is that, as with ObamaCare, the House is proceeding with repeal before they have a replacement. The result is complete uncertainty as to how states should proceed. Under the old regulation, for example, state plans were due to USDOE in either April or September of this year. With the repeal of the regulation, no one now knows when to finalize their state plans or whether they’d even be allowed to submit them, if they’d like to, in time to implement them for the 2017-18 school year. Here, states actually would have had more flexibility to proceed at their own pace under the regulation than they will if it is repealed.

It’s perhaps not surprising that House Republicans have reverted to a partisan stance on education that seems to be as much about undoing the Obama legacy as it is about serious policy differences. Foxx was not the principal who negotiated the final ESSA deal and her views on the federal role in education seem to be clearly to her predecessor’s right.

Alexander’s position is bit more of a puzzle. He put a considerable amount of work into bringing ESSA over the finish line. As someone who has worked on education in and outside of government for virtually the entire length of his professional career, one would expect he’d feel a heightened responsibility to ensure states have utmost certainty as to how to proceed and to keep intact the ESSA bargain he made with Patty Murray and Bobby Scott.

Those are not, however, the signals that Alexander seems to be sending. Last week, the Republican HELP Committee Chair told a gathering of state school board leaders to “assume that the U.S. Department of Education will say yes” to their ESSA plans. "You will have a president and an Education secretary who do not believe in a national school board.”

It’s striking that these comments were made by a member of Congress about an executive branch decision by an at-the-time headless Cabinet-level department. But beyond that faux pas on Constitutional etiquette, could Alexander really mean, literally, that USDOE will “say yes” to each and every state ESSA plan? Did he check with Secretary DeVos before he said it? More important, does she agree with it? Because that statement by Alexander goes well beyond Foxx serving up political red meat on Obama administration overreach. 

Alexander should be given the benefit of the doubt for now, but this is something those concerned should be watching closely as the CRA resolution heads over to the Senate. ESSA’s overarching impact is, indeed, to give states much more latitude on education policy decision-making. But there are important bright-line provisions - provisions in the statute that we thought had already passed the “national school board” test – that can and should be monitored and enforced. Absent that, those who were most reassuring that states and localities would live up to their enormous new responsibilities will be, in effect, undermining the states that want to do just that, and enabling those that would rather not.

Yes, the debate over DeVos’ nomination was, to say the least, heated. There are some tempers that need to cool and some wounds that need to heal. But all the players here are pros with ample experience of getting past all that. As one of her first acts as Secretary, DeVos should make clear that while she plans to proceed on ESSA differently than the prior administration would have preferred, she nonetheless is committed to work in a bipartisan way to enforce the law itself, particularly when it comes to vital protections for historically-disadvantaged students.

Charles Barone is the director of policy at Democrats for Education Reform and Education Reform Now. 

The views expressed by this author are their own and are not the views of The Hill.