Action Alert! FairTest opposes US Education Department's harmful draft regulations on accountability

Dear Friends,

The U.S. Department of Education (DoE) has drafted regulations for implementing the accountability provisions of the Every Student Succeeds Act (ESSA). The DOE proposals would continue test-and-punish practices imposed by the failed No Child Left Behind (NCLB) law. The draft over-emphasizes standardized exam scores, mandates punitive interventions not required in law, and extends federal micro-management. The draft regulations would also require states to punish schools in which larger numbers of parents refuse to let their children be tested. In addition, when DoE makes decisions that should be set at the state and local level in partnership with local educators, parents, and students, it takes away local voices that ESSA restores. When DoE makes decisions that should be set at the state and local level in partnership with local educators, parents, and students, it takes away local voices that ESSA restores.

You can help push back against these dangerous proposals in two ways:  

First, tell DoE it must drop harmful proposed regulations. You can simply cut and paste the Comment below into DoE’s website at!submitComment;D=ED-2016-OESE-0032-0001 or adapt it into your own words. (The text below is part of FairTest’s submission.) You could emphasize that the draft regulations steal the opportunity ESSA provides for states and districts to control accountability and thereby silences the voice of educators, parents, students and others. 

Second, urge Congress to monitor the regulations. Many Members have expressed concern that DoE is trying to rewrite the new law, not draft appropriate regulations to implement it. Here’s a letter you can easily send to your Senators and Representative asking them to tell leaders of Congress’ education committees to block DoE’s proposals: 

Together, we can stop DoE’s efforts to extend NLCB policies that the American people and Congress have rejected.


Note: DoE website has a character limit; if you add your own comments, you likely will need to cut some of the text below:

You can cut and paste this text into the DoE website:

I support the Comments submitted by FairTest on June 15 (Comment #). Here is a slightly edited version:

While the accountability provision in the Every Student Succeeds Act (ESSA) are superior to those in No Child Left Behind (NCLB), the Department of Education’s (DoE) draft regulations intensify ESSA’s worst aspects and will perpetuate many of NCLB’s most harmful practices. The draft regulations over-emphasize testing, mandate punishments not required in law, and continue federal micro-management. When DoE makes decisions that should be set at the state and local level in partnership with local educators, parents, and students, it takes away local voices that ESSA restores. All this will make it harder for states, districts and schools to recover from the educational damage caused by NLCB – the very damage that led Congress to fundamentally overhaul NCLB’s accountability structure and return authority to the states.

The DoE must remove or thoroughly revise five draft regulations:

DoE draft regulation 200.15 would require states to lower the ranking of any school that does not test 95% of its students or to identify it as needing “targeted support.” No such mandate exists in ESSA. This provision violates statutory language that ESSA does not override “a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments.” This regulation appears designed primarily to undermine resistance to the overuse and misuse of standardized exams.

Recommendation: DoE should simply restate ESSA language allowing the right to opt out as well as its requirements that states test 95% of students in identified grades and factor low participation rates into their accountability systems. Alternatively, DoE could write no regulation at all. In either case, states should decide how to implement this provision.

DoE draft regulation 200.18 transforms ESSA’s requirement for “meaningful differentiation” among schools into a mandate that states create “at least three distinct levels of school performance” for each indicator. ESSA requires states to identify their lowest performing five percent of schools as well as those in which “subgroups” of students are doing particularly poorly. Neither provision necessitates creation of three or more levels. This proposal serves no educationally useful purpose. Several states have indicated they oppose this provision because it obscures rather than enhances their ability to precisely identify problems and misleads the public. This draft regulation would pressure schools to focus on tests to avoid being placed in a lower level. Performance levels are also another way to attack schools in which large numbers of parents opt out, as discussed above.

DoE draft regulation 200.18 also mandates that states combine multiple indicators into a single “summative” score for each school. As Rep. John Kline, chair of the House Education Committee, pointed out, ESSA includes no such requirement. Summative scores are simplistically reductive and opaque. They encourage the flawed school grading schemes promoted by diehard NCLB defenders.

Recommendation: DoE should drop this draft regulation. It should allow states to decide how to use their indicators to identify schools and whether to report a single score. Even better, the DoE should encourage states to drop their use of levels.

DoE draft regulation 200.18 further proposes that a state’s academic indicators together carry “much greater” weight than its “school quality” (non-academic) indicators. Members of Congress differ as to the intent of the relevant ESSA passage. Some say it simply means more than 50%, while others claim it implies much more than 50%. The phrase “much greater” is likely to push states to minimize the weight of non-academic factors in order to win plan approval from DOE, especially since the overall tone of the draft regulations emphasizes testing.

Recommendation: The regulations should state that the academic indicators must count for more than 50% of the weighting in how a state identifies schools needing support.

DoE draft regulation 200.18 also exceeds limits ESSA placed on DoE actions regarding state accountability plans.

DoE draft regulation 200.19 would require states to use 2016-17 data to select schools for “support and improvement” in 2017-18. This leaves states barely a year for implementation, too little time to overhaul accountability systems. It will have the harmful consequence of encouraging states to keep using a narrow set of test-based indicators and to select only one additional “non-academic” indicator.

Recommendation: The regulations should allow states to use 2017-18 data to identify schools for 2018-19. This change is entirely consistent with ESSA’s language.

Lastly, we are concerned that an additional effect of these unwarranted regulations will be to unhelpfully constrain states that choose to participate in ESSA’s “innovative assessment” program.

FairTest also submitted a supplement that elaborates on some of these points and provides language from ESSA and the draft regulations to support the comment and recommendations. The supplement is available at




FairTest-Comment-ESSA-Regulations-main.pdf309.35 KB
FairTest-Comment-on-ESSA-draf-regulations-supplement.pdf431.47 KB