The bill is signed, the law is enacted, the debates are a fading memory. Now a new phase of the fight begins. Join Mike Petrilli of the Thomas B. Fordham Institute and three leading education experts for a look at the implementation of the Every Student Succeeds Act. We'll tackle:
  • The big issues the Department of Education will face when issuing regulations
  • How states might think afresh about their accountability systems, teacher evaluations, and interventions in low-performing schools
  • The timeline for the coming two years


Mike Petrilli
Thomas B. Fordham Institute


     Claire Voorhees
     Director, K-12 Reform
     Foundation for Excellence in Education
     Christy Wolfe
     Senior Policy Advisor
     National Alliance for Public Charter Schools
     Noelle M. Ellerson
     Associate Executive Director, Policy and Advocacy
     American Association of School Administrators


Michael:               Hello everybody, I'm Mike Petrilli, the president of the Thomas B. Fordham Institute. Welcome to our webcast on Implementing ESSA or ESSA, is that what we call it now? What to Expect in 2016. We are looking forward to a great hour talking through all kinds of wonky material about the timeline for this bill, what's going to happen next, the regulations, what states might be thinking about. We invite you to follow along with the discussion on Twitter, of course. Send any questions or comments you have to @educationgadfly. That is the Twitter handle for the Thomas B. Fordham Institute. You can also follow the hash tag #ESSA2016.

                                I should say for those of you who are not super familiar with Fordham, we are one of the nation's leading education policy think tanks. We also do on the ground work in the great state of Ohio. In Ohio, for instance, we are thinking through these questions about what this law means for Ohio's accountability system, its teacher evaluation system, its approach to intervening in low performing schools, its charter school sector and much, much else. We are going to be unpacking all of that as it pertains to the schools around the country today.

                                Joining me is a fantastic panel. I am super excited to have some of the smartest education policy analysts in the country with me. Let's start over here to my left is Claire Voorhees, the director of K-12 Reform at the Foundation for Excellence in Education, thanks for being here, Claire. We have got Christy Wolf, the senior policy advisor at the National Alliance for Public Charter Schools. I should also say that Christy served in the George W. Bush administration and was knee-deep in the regulation process last time around, 14 years ago. My goodness, we should put some pictures of us back then.

Christy:                 Yes, a lot of old people in the room.

Michael:               Finally, Noelle Ellerson, the associate executive director for Policy and Advocacy at the American Association of School Administrators, which is the school superintendents' membership organization. I think Noelle may have clocked more time than anybody on the Hill working on this bill and getting it across the finish line. Thanks so much to all of you for being here, for sharing your knowledge and helping everybody understand now what comes next with a special eye towards 2016.

                                Noelle, let's start with you if we can, just explain it to us. What is the timeline? My understanding is the next big thing that happens is the Department of Education has to issue regulations. Is that true and when do we expect that to come out?

Noelle:                 Absolutely, there will be regulations. The statute is clear, but the statute at its most detailed never has enough teeth to fully support implementation to the level that state and local education agencies need that detail. Regulations will start as soon as possible, if not yesterday, in terms of discussion both by the department for determining where they do and don't have the authority to regulate for the topics on which they do and do not have the authority to regulate. We have already been hearing from states and LEAs with inquiries about what topics will we be getting regulations on, how prescriptive will it be? There's going to be negotiated rule-making as it relates to elements in Title I around assessment. We are getting questions from the field about what does that mean? How is that different?

                                I think in terms of timing, there was a meeting at the Department of Education yesterday for some stakeholders where they were talking through and discussing both this bill and they're going to be very transparent and they do want involvement from the stakeholders, which is always good to hear. We would love to see that play out and pan out in that manner. I would not be surprised if we started seeing some substance, even if it's a top line proposal in late February-early March, if not earlier.

                                In terms of reality, you have the holiday recess to get through. You have to go through whatever staffing changes might be coming through. I don't know if you saw the blog post time on what the potential impact for staffing patterns, this is the Department of Education. Regulations will actually be a priority and they should be. This is a significant shift in policy, first time in 15 years and it will be impactful to the schools.

Michael:               Christy, you were there last time around and, of course, a very different law. Why don't you just give us a little bit of an inside scoop, what is it like to do this, to sit down and what makes it in some ways take so long? I remember the Bush administration was criticized so much for taking such a long time with regs. Why is it such a hard process?

Christy:                 There are a lot of factors in play. The funny thing about this is it's playing out the exact time of year where there was a bill signing in January, but the bill had been passed early December, so the wheels were turning. Immediately, what you're trying to do is figure out your exhaustive list of potential issues and figuring out what buckets are going to fall and are they going to fall into negotiator rule-making? One of the earliest decisions we had to make, which I shudder to think about it still, is AYP could have potentially been part of negotiated rule-making and that was an initial decision point that had to be made. Then we said, "No that's not going to be part of negotiator rule-making."

Michael:               Let's just explain that a little bit, negotiated rule-making means what? They put the regs out and then there's some process where they have to negotiate with stakeholders over …?

Christy:                 There's a group of people and the statute is very explicit about who has to be represented and on that panel. Last go around, the people who were part of the rule-making panel were drawn from people who commented on an initial call for comments, "Send us your issues. What are your questions, your concerns?" The department could use that mechanism again. Just send us your initial thoughts on what the bill should be and that will be a way of collecting potential representatives for rule-making. There could be an announcement for regional meetings. That needs to be a part of the comment process. Initially, as part of No Child Left Behind, there were focus groups in five cities throughout the state, so that actually preceded and was another way of drawing potential participants in negotiated rule-making.

                                What you ended up having to do for negotiated rule-making is find under 25 people that ticked all the boxes that had to be ticked according to the statute and there are actually more boxes this time. Last time there were 24 folks, there were six SEA representatives, there were four representing school districts and school boards, four representatives of principals and teachers, two Department of education staffers and then overlaid on top of that were representatives of students, what's known as a two-fer. You're representing the LEA, but you are also a parent with a child in the school so that ticks that box. There was also representative of the business community.

Michael:               My son, Nico, would love to participate. I'm just saying people listening out there the department if you're looking for that box. That guy, he is very well informed.

Christy:                 Even through very exhaustive thorough vetting processes and figuring out how to make sure all of those groups were represented, the department was still sued and it took several years to get that resolved. That was in a simpler process.

Michael:               The first you have to decide what has to be negotiated? If it does not have to be negotiated does that mean it can be fast tracked?

Christy:                 Under NCLB, the negotiated rule-making deadline was six months so that had to go first. Technically, this time the statute does not even require negotiated rule-making. You could send it, write a comment period to the Congress. They have 15 days. I think there will be a lot of process involved in negotiated rule-making this time, but not necessarily a lot of controversial substantive issues proven wrong tremendously by that. It seems, especially there are not currently regs on the issue of "supplement not supplant," which it has to be part of that. The department may decide to be minimalist on that and it's hard to imagine a group with 24 stakeholders walking to dive in on "supplement not supplant" clients.

Michael:               We are so in the weeds, unwonkify here. Christy's Twitter handle is @Edwonkmom so that's appropriate here. Let's say one of the big issues people look towards is under the accountability system as we will get to, these different components have to each count in a substantial way and then the academic stuff has to count much more. Are those the sort of things where the question is will they regulate around those terms? To me, substantial has got to be at least 15%. This is the kind of stuff they are going to be sitting down and discussing right now?

Christy:                 That would be part of the accountability discussion and not so much part of the assessment discussion. I think to a certain extent what you are trying to do in though regulating process is make and reorganize the statute in a way that's simple as possible, clear as possible for stakeholders to understand. There's a good bit of it that's just repeating the statute. I think the accountability regs will provide opportunities for buyback clarification, but only in as much is necessary is what you want to see. If there's guidance, the states in terms of how they need to put together their application, like a range, maybe that's for better for guidance.

Michael:               But we're not combining necessarily? Let's talk about this a little bit, Claire. Congress was very clear that they want, especially the Republicans, they wanted to tie the hands of the next education secretary. They worried over the last seven years there's been way too much executive overreach, at least that has been the perception. I happen to agree with it. They tried to write all kinds of language about what the secretary can and cannot do and try and make it clear that look, if states come up with solutions to accountability or anything else that meet the letter of the law, the secretary is supposed to approve it. Then you said, "Why do I even need to regulate? What's the point?" Tell us how to watch for this as this plays out. Do you expect this administration to respect the limits placed on it, try to push against it? What do you think is going to happen?

Claire:                   I will say that John King and his team have an enviable task ahead of them. On the one hand as you point out, the letter of the law has some quite distinct and unprecedented restriction on what they can do. An example is they cannot in rulemaking add a requirement in accountability that is outside the scope of the law. They cannot prescribe goals or assessment standards. There are lots of restrictions like that.

                                On the other hand, in creating those restrictions and in other pieces, there's also a lot of lack clarity in the law. It's not a perfect law. There's a lot of language. It's not clear, for example, when do states first have to identify schools? What are some of the requirements around subgroup accountability? What does much greater meaning when it comes to the fact that it says in the law that the academic indicators have to count to a much greater extent than your non-academic ones? These sorts of things, they have to. They have a constitutional responsibility to explain to states what these things mean.

                                We, at the foundation, hope they look to states for some of these answers and they look at what's working under the waivers and use that as a starting point. For example, the way some states are using a subgroup consisting of the bottom 25% of students. If that's an effective mechanism, we would love for states to be able to continue to do that. We hope that's a starting point, but there will be some areas of contention I think around some of these areas.

Michael:               Let's say there are certain things states want to know, could we do this or that? One it way is for the department to give an answer yes or no and to regulate on. Another one is just not give an answer and basically the assumption is if it doesn't violate the letter of the law, then it's OK. Noelle, tell us what you are thinking about this? What do you expect to see?

Noelle:                 This is something we have been hearing a lot about from superintendents even before ESSA was passed. This is something that comes up in Rick's book "The Cage Bus and Leadership" where sometimes you will have a superintendent or a principal who are told when they go to the higher level, whether it's the principals or the superintendent or the superintendent to the state, trying to implement a policy where they believe they have the autonomy to do so and they are told no. They are looking for the verification, "Show me in the contract where it says you can tell me no. Show me in the law where it tells me I am not allowed to do this."

                                We have to be diligent to not set up a scenario that's too prescriptive and it would behoove as it would behoove both state and local education agencies and the federal government as well, in this interim period while we are waiting for regulations and in the interim year of 2016-2017 before ESSA is in full effect, look at what are you absolutely required to do? Where are the areas where you still have questions? In particular, where are the areas where you had questions that you find answers that you don't think were the right ones or that have changed that would be critical to what you think would be successful? The next iteration of this page K-12 ESEA.

                                That's what we are going to be looking at and clarifying for our superintendents, as they try to take advantage of this opportunity. It's the first time in 15 years they are going to be able to demonstrate what they can do in the accountability and assessment arena absent of federal overreach and we are telling them about all the expanded flexibility and authority they are going to have. But with that comes expanded responsibility and they have one shot to get this right. Having this transparency and clarity about what they can and can't do and how it aligns with their mission and getting it right from the get-go is going to be critical to whatever successes they can experience.

Michael:               I want to nail this down and maybe using an example would help. We are going to get more into detail in this and in a minute. The State Accountability Systems are supposed to have these four different categories of indicators and each of those is supposed to count for a "substantial amount." Let's say the department decides there's four of them so substantial, so each one has to account for at least 20%, I'm just making this up. Let's say a state out there does not like that answer.

                                One of the indicators, for example, is academic achievement. Maybe they say, "We want growth to account for almost everything. We want the academic achievement the proficiency rates to only have to count 5% or 10%, so we don't like this 20% regulation." How does that get worked out? For example, do we think some states are going to end up suing the Department of Education if they think the department has overstepped these different tripwires that Congress has put in here? Anybody want to take that one?

Noelle:                 I would jump in with I think this is, again, I will echo what my colleague just said. I don't envy the task ahead of Mr. King and his colleagues at the department. I think there is an unspoken or perhaps a very clearly spoken focus within ESSA to pull back the creative interpretations of regulatory authority that happened and in reigning that in, striking the right balance to preserve the regulatory authority and priorities in a manner that you don't open yourself up to a lot of lawsuits. Or if it is a lot of lawsuits, as soon as you have a new administration or the next Congress, what can you do through laws to pull back legislation?

                                Just because you can regulate does not mean you should, especially when you think about what your absolute priorities are. If you go too far, it will be enough you can get enough movement or a swell of movement that it just becomes easier to erase it across the board.

Michael:               What you are saying, for example, on this one, they could choose to not just say anything, just repeat the statute and say, "Each of these indicators has to be a substantial amount, end of story." Then …

Claire:                   Is that better than being back in a scenario where it's more like a waiver world where it's, "You submit an application. Does this work? No. Is 20% OK? No. Is 25% OK?" I think to point out that balance between giving states some breadth, but also getting consistency that we don't know who the next Secretary of Education is. We have an election coming up. Striking that right balance and looking, I think you have to look to the states, "What are you doing right now? How are you waiting your indicators right now? What's enough breadth to give you in this space?" If they don't like it, then they will have a couple options. One of which will be a legal one to sue and another one will be waivers.

                                I know waivers have become a bad word, but they are not to the extent now since you in this new law you are not allowed to put too many contingency on the waiver that it would just be a simple up or down vote "Can we waive this provision, yes or no?" That will be an option for states if they are not what happy with what comes out of regulation.

Noelle:                 I think some of the buckets you see in Title IV because that's now a block grant in large part and you see a blend of things that it must be "at least than," as well "it cannot be more than." In blending those with those broad buckets you do allow and empower the receiving agencies more autonomy. You have to spend at least 20% on well-rounded. You have to spend at least 20% on student climate-school climate and school safety. You can spend no more than 15% on devices and you can spend no more than 60% on the curriculum and supports that help those devices actually be learning tools. You have that nice blend that has a lot of authority or flexibility at the local level, but does identify where their priorities are.

Christy:                 Hopefully that won't fall even in the regulations scope because traditionally it has been Title I and so Title IV shouldn't even be appearing …

Noelle:                 But as a model for the blend.

Michael:               Folks, we got some great people following along on Twitter. Please join in, if you got a question, you don't need to hold it until the end. Again, send it to @educationgadfly or the #ESSA2016. Let's nail down the timeline again. We should have a graphic on this. Let me see if I have got this right. First step, the department is probably going to do some of process to gather input, meet with stakeholders, say, "Give us your ideas, your concerns, your questions." They then are going to start putting together some pen to paper, particularly in some things that need to be negotiated.

                                The other stuff may go directly into something that would be a proposed rulemaking. It has to go to the Hill first for 15 days and then what? Then can go to the Federal Register for public comment. Then there's a period of time. The public has to comment on it and then the department looks at those comments and then finalizes the regulations. Is that about right?

Claire:                   Don't forget ONB and Alira …

Christy:                 There's a few other people that have weigh in.

Claire:                   ONB within the White House will play an important role here because they look at policy, but they also look at the law. They will be the ones interpreting has the secretary, one of the people, interpreting has the secretary exceeded his statutory authority on issue X or Y. That's a piece that has not been talked about much, but they will play a role and extend the process.

Michael:               This takes a long time. Is this going to get done before there is a new president in office do you think?

Noelle:                 Even standard comment periods can be as quick as 30 days, 45 days, 60 days. You can set them pretty quickly.

Christy:                 It takes a long time to take the comments and organize them an actually do a thorough response. We have been frustrated on a few points in terms of the detail at which the department has actually responded to comments. That's a time-consuming process to do it well. The Title I accountability regs in 2002 were done just in time in December. That was also counting officially through regional meetings and other processes, the official comments. It would be very tight.

                                I think if they want to regulate outside of the negotiated rule-making on accountability, they would have to pick and prioritize. Do low hanging fruit, don't necessarily try to do a comprehensive package now. Even though there were the initial regs in 2002, there were still the 1% reg, the 2% reg, the OA graduation rate … It was eight years, which is probably sending chills down people's spines.

Michael:               Right, you are saying this doesn't have to be done at a certain point. They can come back and have another bite at the apple.

Christy:                 You learn and you get input and it should be an iterative process.

Michael:               A new administration could come in and take a bite at the apple as well. It sounds like Noelle is saying maybe we get it done before a new president. Christy, maybe not so sure, Claire, it will be tight.

Claire:                   They will do their darnedest.

Michael:               In the meantime, the waivers expire in August. Then school starts and what's supposed to happen in the 2016-17 school year, basically, nothing, right? Nothing has to happen from the federal level? Is that correct or not?

Noelle:                 That's what we are telling our superintendents. I have had questions from superintendents and people at our state association level, "Could we go back to or could we hypothetically go back to what we had in place before waivers?" You could, but why would you do a systemic shift like that knowing that 2017-18 is another shift? We are counseling and I think it makes good practice to use that interim year as a soft launch.

                                We talked earlier about how the world can and should start now. Think about the things you are going to have to implement. Think about the things in your waiver or current law construct that you like and want to see through. Think about the things you want to get rid of. What does that transition look like? What are the areas where you think you can get hiccups? Implement those right away and probably try to implement more because you don't foresee those hiccups. It helps with your transition to the 2017-18 school year. It's a strong opportunity for a soft launch.

Michael:               What about on this state stuff? Do they have to continue? I assume they still have to test students? They can't skip testing next year?

Christy:                 Yes, the school improvement has to continue. You can't stop interventions that were launched under …

Claire:                   Any school that's identified at the end of this year will be served as such through that next year.

Michael:               It's not that the low performing schools are suddenly off the hook for year? You have to maintain, keep going forward with those interventions. Choice, supplemental services, all that goes away right away?

Christy:                 The 20% set aside, it's gone.

Claire:                   On July 31.

Noelle:                 We think about it as you have to keep the construct, but you don't necessarily have to ratchet up to the next level in terms of consequences or interventions, but you don't get to drop off in your provisions of services for those needy populations.

Michael:               You can see why there's a lot of lawyers that are going to be involved in this process. This is getting so complicated, so hard, my head is starting to hurt already.

Christy:                 It does coincide nicely, if you want to look at some silver lining, with state transitions to assessments. They are still trying to figure out how to balance work? How do we design a new accountability system based on these new achievement requirements and standards?

Michael:               Noelle, you are telling your members at the local level to start working on various implementation things. That makes sense. Probably at the state level, too, they can start thinking about, "We get to redesign our accountability system. What do you want that to look like?" Though they cannot finalize that until the regs are out, they can at least start that process. What else can happen immediately? It strikes me that teacher evaluation not part of the bill. Can states started to dismantle or dramatically change those evaluation systems, basically right away?

Christy:                 In my view, yes. As of August 1, 2016, the waivers expire and it will be up to the state to decide how it wants to tweak, strengthen or weaken its state accountability.

Michael:               Or jettison.

Christy:                 … Or its teacher evaluation system. It will be an interesting process to watch, given the political makeup of states. I think also it will be interesting to see, think about when you release angst around teacher evaluations in those states that decide to do that, what does that do to the current angst around, for example, Common Core or around testing in general? When you pull that string what other things will unravel or be strengthened when that piece of the puzzle that's been so contentious is released or at least becomes owned by the state?

Michael:               Let me hammer this just a little bit. For state legislatures, assuming that legislators are going to get involved in some of this and I don't know, maybe in some states they will and some states they won't. But let's say in a state where they would want to get involved in redesigning the state accountability system for schools, the rating system, they can't do that yet, this spring because they don't have the final regs, they don't have final rules. What they can do is they can have a debate in the legislature about the teacher evaluation system and making get rid of it, they can change it. If we are looking at what's going to be the big debate this spring in the states, it seems to me it's probably going to be around teacher evaluations, at least at the political level, fair?

Noelle:                 I would agree. Related to that, one of the questions we are getting from our state affiliates are those who in particular, their waivers are in some sort of flux or consideration or there may have been a letter issued before ESSA was signed in the law saying, "You need to do this if you want your waiver extended for the 2016-17 school year." Well, waivers now expire on 2016-17 and the states have a letter from the Department of Education saying, "You need to implement this around teacher evaluation."

                                Well if that's at odds with what your state legislature wants you to do, but you now have waivers that expire, what is the role there? We're talking about how we can have a more harmonious relationship between … What the Department of Education continues to prioritize because it's something they focused on and the reality is there is no more federal leverage for that.

                                Looking at what this final semester of ESSA, known as No Child Left Behind looks like and what opportunity is there for transition between what is required in waivers in law now from the federal level and what is going to be coming under ESSA? There could be an opportunity for smoothing transition, which can be very collaborative between the feds and the state and the local and we are looking at that.

Claire:                   On this issue, we are giving states three main pieces of advice right now because we are getting the same questions you are from the governor's offices and legislatures and state departments of education and that is first we have already covered, but don't overreact right now. This legislative session is too soon to dismantle or recreate your next accountability system. The Fed's gave you an 18 month transition for a reason, try to be thoughtful, look at the numbers, look at the data, see what's working, what's not working as Noelle touched on. The second is there are some …

Michael:               Can I interject. It is not too soon to dismantle a dumb teacher evaluation system if that is what you happen to have in your state. In fact, there's never been a better time. I'm sorry, go ahead.

Claire:                   Yes, they will be playing some defense and offense around teacher evaluations I'm sure. The second piece, though, is on some discrete issues where I think you could make some big progress we have identified. One is school interventions. It's pretty clear that states will have a tremendous and districts will have a tremendous amount of freedom around … This thing is the most difficult thing to do in all of education, which is to turn around failing schools. States should start to think every player at the state level should start to think now, "What do we want to be in our tool box? How do we start? Our turnaround toolbox is it a recovering school district? Is it reconstitution? Is it attracting charters in the right way? That to us is a big piece that states can get started on right now because it's unlikely there will be any restrictions there given the way the law is written.

                                The second piece is on one of the more exciting. We forget to talk about the opportunities here. There is a $1.6 billion block grant and states and districts are going to have a lot of control over and starting to think and lay the groundwork for where you want to spend those funds and whether it's going to go more toward …  There's some restrictions on it, but more towards digital learning, more towards a K-3 reading. How are you going to use that? That's something that states can definitely start to do right now.

Michael:               Good, let's keep on this theme about what states can be thinking about. You mentioned interventions for low performing schools. The SIG program, School Improvement Grants Program, goes away, but there is this very similar set aside from Title I where it states and districts can use up to 7% of the money to do interventions in low performing schools. What do you guys expect? I'm curious, Christy or Noelle, what you guys are seeing on there? Is there any talk about either in the district world or the charter world what might be new and different to this round? Even though the states have more flexibility, are they going to keep doing what they have been doing under the waivers? What do you think?

Noelle:                 I think the easiest place to start will be to keep doing what they have been doing that they like or find to be working. I think the work lies in how can they pull out or remove what they have found to be unsuccessful or what do they need to add in to strengthen what they have found to be unsuccessful and what would the elements or models of turnaround that weren't allowed under current law that they have long wanted to put in? We are thinking about school improvement and turnaround models more as a laundry list or a checklist or an à la carte approach. It's about having them have the discussions were drawn on the discussions they have already had to identify the factors they want to build in.

Michael:               I'm just curious. Can you give us some examples of some school improvement approaches that have not been allowed to date that your members are excited to try?

Noelle:                 I'm hearkening back to when we … Some of the ones we are looking at, they are always still drawing back to the first original four prescribed models where it relied heavily on prescribing who you had to fire and higher. While that's been lessened, that definitely resonates with them at their core level. Especially, when we look at our small and rural schools, it's about what can they do to get the right people in and then keep them in and get them in front of the kids that need them the most. We have not seen a model. I am interested in what they are able to put forward because if they can put forward something that's something we can then share with their other state affiliates. We would like them to have had that yesterday, too.

Michael:               Christy, do you think if people want to use this to do some interesting things around chartering, is your read of the law that they could use that set aside to do something there?

Christy:                 Yeah, absolutely. There is flexibility in terms of the allocations, the amount that goes to the LEA, but they have a certain window in which to make progress with the schools. What we would like to see is more states taking a comprehensive approach to a district and not just an individual school in and out or a one for one replacement strategy by going in. Where do we need to provide quality seats? Is that going to be a restart school? Do we need to create a new school to serve these students rather than just focusing on one individual school, potentially at the expense of other students around them that are also in failing schools because SIG has been limited in terms of resources in its reach? That's one of the things we are excited about is more comprehensive turnaround strategies to reach more kids.

Claire:                   Building on that, which we'd love to see as well, how do states start attracting CMOs who can do some of this work? We are in the middle of a CMO survey where we're asking CMOs what are the conditions that make you go into or not go into a state? That's something a state can be doing now to be thinking, "how do we increase our turnaround arsenal?" and getting some of these high-performing charters is the way to do it I think.

Mike:                    Claire, let's go back just for a second to what you said about recovery school districts. My understanding again is as long as the money goes to an LEA, you can spend a lot of federal money on something like a recovery school district. If you create a statewide LEA that like in Louisiana or in Tennessee brought in low performing schools, states can use this to create those kinds of entities and do the work through a recovery school district mechanism. Is that your read on it as well?

Claire:                   That is and we're hoping to see that in a number of states. Some states are already well on their way there and may use it to grow what's already working. I know there are states like Georgia that are on the cusp of passing a law and it will be interesting to see how … I think this will be a great way to do that because some of the concern in states has been trying to do this without additional funding and now this law could not new funding, but more freedom to use the funding in that way could really help.

Mike:                    Noelle, go ahead.

Noelle:                 I actually have a point of clarification. I was talking with a different colleague this morning and one of the qualifications that's in the law is competitive funds for federal ER-16 flow through the No Child Left Behind construct. But my read and her read was formula funds flow in the ESSA construct upon signing. Wouldn't that mean for the 2016-17 school year that Title I in state would be that block. When you have the 2016-17 year to start implementing some of these turnarounds payouts, too, correct? That's another area where they might be able to take action this year.

Mike:                    By the way, a quick question on Twitter from Washington state. A state that never got its waiver, so sad and unfair in my opinion. Frankly Washington, it's on you. You never sued Arnie Duncan, which you could have and you didn't so there you go. Can they stop doing SCS and school choice right away? Is that done? They can stop immediately. What do you think?

Noelle:                 We are counseling that it is in effect through this current school year. We have gotten that question a lot, "Can I stop choice? Can I stop SCS? Can I re-grab the 20%?" We are counseling with the things are in law now should go through at least the end of the school year and that full ESSA in 2017-18. The people we represent run systems. To shock your system, to then realign your system there's that continuity to think about, too. I have not gotten an explicit answer, but that's how we are responding to that question.

Mike:                    Not immediately, but maybe next school year you should be able to move away from that.

Claire:                   Hopefully, but the department's guidance is coming out maybe next week will address some of those big …

Mike:                    That's a good question for them to answer and politicsgate12, we know you are watching because I can see you tweeting a great story to look into. How's that going to work out? Let's talk about accountability, my favorite subject. Let's get into the weeds now. This law moves away from AYP, but in some ways provides more prescription than happened under the waivers you might argue.

                                Let's explain how this works. It's fair to say each state accountability system has to have at least four components to it. We were talking about ratings. How are we going to rate schools? How are we going to put a label on a school? Academic achievement; then for elementary schools and middle schools growth or an alternative; for high schools it's graduation rates; Progress in getting English language learners to proficiency and then the fourth is some other indicator of student success or school quality, so far, so good? Each of those components have to count for a substantial amount in the final grade. In the academic stuff, which is basically the first three, have to count much more or …

Christy:                 Much greater.

Mike:                    Much greater than the others, which by the way, I think was added because of an email chain that many of us were on and we can tell that story some other time. First of all let me ask you this, if a state did not want to smoosh all those different grades together and just wanted to keep them separate, "We will have a grade for achievement, a grade for growth, a grade for …" Is your perception do you think they could do that or does this law very much expect states to come up with some kind of summative grade?

Noelle:                 I will speak to this only because I had this explicit question dialogue with a couple states yesterday and I was emailing with who drafted this section. They are referring to something our superintendents call API or the Annual Performance Index, which is the idea that the school performance will be labeled with a single letter grade, even though there might be multiple factors rolling up into it. It was explained to me or the inquiry was are we still bound to this? We are reading, as an affiliate that we are not, but we have some superintendents who are saying that that is the intent or that is actually required.

                                We followed up and the question is that response was while it was the intent, there is no requirement that it has to be a single indicator. That is a school …

Mike:                    A single grade.

Noelle:                 You can have the Buckinson report then differently. There might be some pushback because the idea of a state report card is not as readily digestible and so what does it mean to the average parent that the academic indicator is an 87 and the growth rate is an 89 and the ELO proficiency is a 91? Right now those average 89, but if they have different weights, how is a parent supposed to interpret that? It is not required.

Mike:                    I will make the case for keeping it separate. In Ohio right now, they are expected under the waiver eventually to smoosh their different grades together, but they haven't gotten there yet. Right now, I think it's actually a great system. It's letter grades, so those are easy to understand and it's like a report card. You don't get a report card from your kid and it's just one letter for all subjects. They get an A in math and a B in reading. If you did smoosh it all together, you would actually have less information.

                                In Ohio, you see the grade for academic achievement. It's hugely correlated with demographics. You see a different grade for growth, not at all connected to demographics. Then a couple other things. You see, for example, the Kips School gets a C for academic achievement, but it gets an A for growth. To me that's more information than if you smooshed that together and just gave it a B overall. Again, do we allow for states to do that if that's how they would like to do it?

Claire:                   We found it working with our 18 states that have a rep systems that there is a great power in a single letter grade. Now should states do a better job of explaining what each component means and how that school has performed on growth and proficiency? Yes, but back to what the law requires, I don't read it to require. I think there's room for interpretation here. I wonder if the department will interpret it one way or the other or leave it up to states? I think  it's to meaningfully differentiate schools every year.

Mike:                    Including to then identify which ones are the lowest performing.

Claire:                   … Over what meaningfully differentiate.

Mike:                    Christy, let me ask you. Let's say that the department says, "No, no, no we want to make it clear you have to come out with a single grade." Is that then something they put in a regulation?

Christy:                 I think if they felt strongly about something, they are going to want to put it in a regulation to make sure it's clear and transparent. Then that's shutting the door on innovation and people coming forward with ideas and, "Well, we've never thought of doing it." It's a lot harder to change a reg than it is to go back and rethink or reissue updated guidance. The regulation is for something that there's a bright line. We have gotten comments. There is consensus or we feel this is the right thing to do. Now sometimes you put things out there for comments. The purpose of getting comments and the comments are so strong in the opposite way then it served its purpose of putting out there. I think something like that, it could be something you want to do. If they want to do a bright light, it needs to be in the right place.

Mike:                    Let's assume they end up saying, "Yes, you do have to have a single index or a grade and each component has to count for a substantial amount." What is your take? Do you think they should define what substantial means?

Claire:                   I think states need some clarity. I think they should look to the states for some guidance and they should give them … I'm going to repeat what I said before, some wide breadth on this. I think states need some sort of ballpark guidance on what these terms mean. Otherwise, we are going to have a one-off iterative process of what works and what doesn't. I think if you look at the field … We're doing research right now. If you look at the field, you are probably going to find in waivers there has been a ton of experimentation. What is the ballpark of what states give weight when they give weight to a non-academic indicator? How much weight is it? In most states, I don't think it is 50%. Probably that wouldn't be out of bounds to keep it closer to 20%.

Christy:                 You want the staff of the department to be treating states fairly. That they're getting the same answer from the different staff members that are assigned to them. Only those staff members will know all the nuances of a state. There needs to be clear transparency and confidence all the way down that everyone is getting the same treatment.

Mike:                    But that's the trade-off. If you give clear and consistent answers, then that makes you more fair, but it also might cut off innovation if you haven't anticipated all the ideas somebody is going to come up with.

Noelle:                 That also depends on how you set the answer. When the original question that started this moment of dialogue was should they define substantial? If they define substantial as 85% that's very different than substantial at 35% or 45%, depending on what are the wiggle room. One of the most common phrases

                                I heard on the Hill was we have to thread the needle on this one. It's like I'm going to try to regulate on phrases like "substantial" or "much more." There are things you could do that would put me in a position to be very, very concerned and then there's things you could do that would make me intrigued that you did not go as far as we thought you might go and then have that conversation.

Mike:                    To be clear, my own view is the fairest way to judge schools is with growth and not with academic achievement, so I would want them to be able to count growth for almost everything or a huge part and whether or not the department will allow that will be a question. Another tricky thing, one of these indicators is the progress in getting English language learners to proficient. What strikes me is that should count for quite a bit in schools with a lot of English language learners. It probably should not count that much in schools that only have a handful of English language learners, right? Do you have some kind of sliding scale? Boy that's get complicated.

Noelle:                 In the Title I formula, you have the two weighting in scales that get progressively weighted, depending on how your students fall in the quintiles. You might be able to look at a model like that. The reality is that's our fastest growing student demographic and it serves us well to serve them well. There's a bunch of ways you could get creative around ensuring you're incentivizing states as schools who are still empowered to exercise their expanded authority and flexibility, but incentivize them to ensure they're targeting those resources. There is a significant focus appropriately on English language learners both in this provision and in shifting the accountability to Title I.

Christy:                 Given that the stakes are so different now, I think everyone needs to retrain themselves a little bit in terms of accountability. This is not an AYP system where things happen automatically. There is no timeline. There is a lot more breathing room. The purpose for these rating systems at the federal level, they're different. They're more about information and differentiating and then the stakes are for the very bottom, but they are not triggering anything. People don't have to hyperventilate quite as much.

Mike:                    That's fair. We would like to hyperventilate, but we do and this makes it exciting, high-stakes here. Then there is the fourth indicator, another indicator of student success or school quality. The law mentions a few examples like student or teacher engagement. Here we go. This is going to be probably the one where there is some big, big fights at the state level. I think it's fair to say that the unions would very much like to put some things in there that might be more on the opportunity to learn spectrum.

                                For example, I have the NEA Opportunity Dashboard here. They have a variety of student indicators, many of which we have talked about achievement stuff, but then they have things like students access to fully qualified teachers or to quality professional development for all educators, students access to modern materials and facilities, etc., etc.

                                One question would be do you think the department should allow that sort of stuff into these data accountability systems or does it have a choice? Is it something they can try to guard against these inputs that are more about resources, spending, class sizes, teacher qualifications, not so much about student outcomes?

Claire:                   The law does require that the so-called non-academic indicator, some of which can be academic in nature, be valid, reliable, comparable and statewide. There are certainly to me legal room for the department to place some boundaries there. Again, encourage them to look to the states and look what's in bounds. I would actually hope that states not to force the department to regulate on this by being smart by selecting indicators that are in fact valid and reliable and comparable.

                                I think more generally, states are going to have a huge fight on their hands though. Accountability is under attack in a lot of states. We have some tough legislators out there and we see this as one way that you can weaken an accountability system. On the other hand, maybe it's an opportunity. There are a lot of states that need to do a better job in bringing all stakeholders to the table and get buy-in on their accountability systems. Maybe one way to do that is to bring in some slightly less test-based accountability metrics. To me, you don't have to go … It's not all or nothing. It's not just test scores or something that's completely marshmallow soft, like people were joking about hugs and kisses. There is something in between there. There's parent surveys, parent satisfaction, there's access to a diverse course load, there's remediation rates. Let's get creative and think about how we can make accountability is stronger through this other indicator.

Mike:                    There is a group of districts in California that have had a waiver to allow them to come up with some new approaches to accountability. They're called CORE, the California Office to Reform Education. Let me list some of the things they have come up with and it's interesting. They started with a lot more of the out-of-the-box stuff and I think over time it's been narrowed down to just a few. They have chronic absenteeism as one indicator; student staff and parent culture-climate surveys, like we talked about; suspension or expulsion rates; social and emotional skills; these are probably the ones where people started to get a little bit nervous about whether the metrics are where we need them to be yet and then disproportionality in special education, at least for information only.

                                I'm curious. Do those sorts of things make people more comfortable? I'd be curious in the district world, in the charter world, are there other kinds of indicators people are talking about, getting excited about? Do those sound reasonable?

Claire:                   It's a tough conversation to have because those things, grit and social and emotional skills are obviously, more important than anything, whether they should be measured and put in accountability the system is a very different matter. Recent articles I know have said that even the researchers themselves have admitted some of those measures are not ready for prime time in terms of reliability and validity. Maybe one day we'll get there.

Mike:                    Instead of having test prep, we're going to have grit prep and the student survey prep.

Claire:                   Some of the other ones on there, you can't underestimate the importance. You just have to be scared of the unintended consequences. We have talked about suspension and expulsion rate is a tough one because you created some incentives that could be dangerous for schools to avoid suspensions and expulsions. I think being thoughtful on this and I hope groups like ours can give states some good advice on how to do this. Knowing that a state will have to, the way I read the law, pick one that affects every state and every school and possibly every charter will have to commit to be evaluated on the same non-academic indicator and that's a big deal.

Mike:                    What are you hearing Noelle? What are you guys thinking?

Noelle:                 We think it's a natural progression. We think about how much of No Child Left Behind helped create a high-stakes testing environment over lines. This seems a natural flow when you have an approach to re-authorization that's focused on reducing that high-stakes testing climate. It would make sense that you have a progression towards non-academic indicators. It is something we strongly understand the importance of. You cannot have a successful student until you have a ready child and related to that, you cannot have a successful school until you have a ready school. It's more than just academic factors that go into it.

                                That said, I would agree with everything my colleague just said about how there are some indicators that have more valid and reliable research than others. This is where it falls on state and local education leaders again being responsible in their new flexibility and working with each other to ask other people know and what they have learned in this space and to consider looking at what other states and districts have done. It's a very big opportunity to demonstrate this has a valid role, but we don't want to put the cart before the horse and ask every school in a state as large as California to rely on one non-academic indicator when we talk all the time about how there's not one size fits all. We should keep that mantra in the back of our minds as we think about what the regulations look like.

Mike:                    That's clear in the law that it is supposed to be statewide and it's supposed to apply.  Are there some specific indicators you think folks will look like, like the core district ones. Would those all be ones you think are worth looking at?

Noelle:                 Our members have expressed interest in all of those. The laundry list in the bill itself included a lot of those and a few more and we were very pleased with the list that was in there. We haven't asked our members for additional feedback for areas they felt were not included, but I think once that call goes out, we will likely hear from them.

Mike:                    Christy, charter schools have been held accountable for 25 years for a variety of indicators. That was the idea of a charter was you spell out the results schools would achieve, which was partly test scores, but at least it was supposed to in the original days the other stuff, too. Are there some lessons we can take from charters or charter management organizations about how accountability works in that world?

Christy:                 Yes, but it's one thing to do that on a charter-based level and another thing to translate that into state wide. I think charters themselves are looking at how to differentiate between metrics for new starts and turnaround charters and how to treat them differently, depending on the context of which they are getting started. I think there is language in the charter school title that now is shifting charter renewal requirements that they have to be primarily based on academic indicator now. Whereas now in Title I, you have to bring in the other indicator, in the charter now for renewal, it needs to be primarily based, so there's going to be a shifting potentially …

Mike:                    That's interesting. In some ways make charters teach to the test more.

Christy:                 You almost wonder if they could create an index of the other indicators, instead of having to pick one they could amalgamate a bunch of them or you could give some menu for districts and it would somehow magically be comparable statewide.

Mike:                    That's interesting. I like that idea. That's interesting, very good. Well, we're on the charter front. What else, Christy, should people be looking forward to in terms of charter schools based on this new bill and can any of that get started right away?

Christy:                 I think Noelle mentioned already the competitive grant effective date is not until October 2016, so we are waiting to see what components of the ESSA law will kick in for the 2016 charter school competition. There are significant changes and new flexibilities and definitions, a number of which we'd love to see him right away. There's also the balance you have to achieve with the department being able to get a notice inviting applications out with states having sufficient time to submit them. In fact, one of the flexibilities we have now is that governors and charter support organizations and state charter boards can apply for CSP grants. That's a significant change in the CSP grant. We are still hoping to work that out with the department and it remains to be seen.

Mike:                    By the way, I forgot to mention a few of my favorite non-academic indicators of the other indicators. Percentage of high school graduates. This is for high schools, who vote in the next election. That would be fun. How about the attainment of a second language? Why not? This is a chance to, again, think bigger and broader and bolder about what we want our schools to achieve. Can we get something about civics in there? Just some ideas, throw those ideas out there, reporters that are watching there are lots of things you can report on, all kinds of ideas. We can have fun with this.

                                One question on Twitter about pre-K. We haven't talked about the new pre-K grant. Anybody want to explain that and again, does any of that kick in right away or do we have to wait on regs for that, too? Anybody been tracking that, Noelle?

Noelle:                 We are waiting on the regs.

Christy:                 That's HHS, right? That's a different ball of wax.

Mike:                    Don't forget, if you have a question, you can tweet it to @educationgadfly. That's the Thomas B. Fordham Institute's handle with #ESSA2016. I'm going to be looking for some questions here or else we're going to wrap up pretty soon, so who wants to tell us if you have got a question?

                                Gang, we have talked about a lot. Look, it's clear that people in the department are going to be very busy, as well many of us following this and reporters. Let me ask you a big picture question. There's been a big backlash to testing in other parts of the education reform agenda. Are you hopeful this is going to allow for a reset that will in some ways make reform stronger or are we going to look back and say, "Wow, this was the beginning of the end and the unraveling for education reform." What do you feel about this? Claire, you go first.

Claire:                   I'm hopeful. I am a pessimist, but I'm actually hopeful on this.

Mike:                    You are a pessimist? is that right because is there a group? Is there a club? Is there a pessimist international?

Claire:                   We're meeting in a minute. I think there are actually some good things in the law that could help testing. I don't think anything magically will change because this law has passed, but I'm hopeful over the next 18-24 months that and longer that testing … There's a lot in this law that will let testing evolve in good ways and to become a different more effective tool that hopefully will start to gradually win over, to change the PR campaign a little bit.

                                Four things that come to mind. One is just the end of AYP, so that the consequences are more stake determined. They are not as rote. That will help with the testing piece. The second one is the authority to roll up an assessment. You can now under the law rather than giving us a test at the end of the year, you could in theory if you could do it, which remains to be seen, give multiple tests throughout the year and roll up the results.

                                Then there's the Innovative Assessment pilot. This is an exciting opportunity for states to … It's actually an assessment and accountability pilot to change the way they test and have tests evolve to better support competency-based education into the future. I think as we start to see testing evolve and this law allows for that, that we can hopefully see the opinion of testing change.

Mike:                    I feel like you worked yourself out to an optimistic perspective there at the end. That was good. I like that. What do you think, Noelle?

Noelle:                 One of the questions you had framed up for us, but we didn't fully address was the idea of what happens to Common Core Next? I actually see a bridge between what's in ESSA for testing and what it means for Common Core Next. I think in general, would you hear about the push against the testing, I think the Common Core tests had a lot to do with being the straw that broke the camel's back on that and then there was a lot of backlash for the Common Core standards.

                                I think if anything, ESSA absolutely reduces, will reduce the vitriol around testing. I think by pulling the federal government out and for whatever might be required around their role in the consortium tests, that will slow down that strong conversation, which then gives more room for the standards to stay in place. Everything that was articulated about the state pilot and then there's the language about allowing or encouraging states and localities to do audits of every test they offer.

                                We are also interested in the local high school assessment, which is a strong parallel or partner to the state pilot. The multiple roll up is something we have had a lot of interest in from our affiliates. The room for growth, as opposed to just the one time, all of that is good and a lot of that, again, falls on the people at the state and local level to get it right. It's a huge opportunity to prove everything that they claim will happen when you do these parameters around assessment and I'm looking forward to seeing how it plays out.

Claire:                   I just want to emphasize what Noelle just said. You can now use state grant assessment money to conduct an audit. We would encourage every state to do so. It's a great opportunity. Every state can use federal money if they so choose to identify and get rid of the useless, repetitive, ineffective tests that have been proliferating mostly at the local and school level.

Mike:                    You're one of Noelle's members here for this. Noelle can blame state policy because I would argue that it's in many cases the teacher evaluation systems that have demanded a lot more information about student performance in a variety of subjects and they have responded by adding lots of tests. If that goes away, districts can slow down their testing.

Claire:                   We have all worked together to create this problem.

Noelle:                 It goes back to Rick's book about just looking at why did you give that test? Is it required? Who requires it or are you actually just giving this test because you have done it? That's a different conversation. We were happy partners at both the state and local level in creating this portion of the testing version.

Mike:                    I like by the way that Rick keeps getting a shout out here, love you Rick. Follow him on Twitter. Last question, this one from Twitter from Mark Dinarski wants to know about the funding for research on innovations. How does the panel see the education department and the states using those funds? Is this the successor program to investing in innovations that he is talking about? Yes, what is that and what do you see coming down the pike? Researchers want to know, they want to get their hands on some federal cash, no, just kidding, Mark. Anybody, are you following it?

Claire:                   I haven't followed it as much.

Noelle:                 In terms of research, we have not followed that one. We are following in particular the report that department will have to do on how it serves rural schools and then we're interested in that Title I formula report, but that's not at all …

Mike:                    We will have to get back to you Mark. It sounds like in other good one from politicsk12 or maybe Sarah sparks to look into how does this thing work. We are amazingly at an hour. That just flew by. There is so much to unpack here, but I know I learned a ton. I bet the folks out there did as well, thank you. I would say please join me in thanking our panel, but we don't actually have an audience in front of us, so I will thank you for doing this today and, of course, wish you a happy holidays. Most importantly, enjoy the Star Wars movie. Thanks again to Claire, to Christy and to Noelle. Always tune in at or follow us @educationgadfly to find out what's happening next, tons of content on ESSA and lots else. In the meantime, do have a wonderful New Year, thank you.