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Behind Closed Doors: How the Feds Control Your Kids’ Education

The Department of Education convened a 24-member committee to negotiate rules for the Every Student Succeeds Act, which affects all students.

Beginning March 21, the U.S. Department of Education convened a 24-member committee to negotiate rules for the Every Student Succeeds Act, which passed in December and replaces the No Child Left Behind Act. This is the latest version of the Elementary and Secondary Education Act, the most comprehensive piece of federal legislation on education ever—it affects every schoolchild in the country.

The 24-member committee is comprised of representatives from stakeholder groups including state administrators and boards of education, local administrators and boards of education, parents, students, teachers, school principals, charter schools, paraprofessionals, the civil rights community and the business community. Tribes are represented by Aaron Payment, chairman of the Sault Ste. Marie Tribe, and Leslie Harper, Leech Lake Band of Ojibwe. Here is an explanation of what the Negotiated Rulemaking Committee is doing and why it’s important.

Testing and Title I Rules on the Table

The committee is working on negotiated rulemaking for only two aspects of ESSA—assessments, or testing, and something called “supplement not supplant,” a principle that concerns how Title I funds are used. Title I provides federal funds to boost educational opportunities for at-risk (read poor, minority, non-English-speaking and disabled) kids. The regulations, which are not laws but will have the force of law, are intended to make sure the funds are actually used for the benefit of those children.

ESSA Regs on Testing

ESSA keeps the same testing schedule as NCLB, but gives states the freedom to choose, within certain parameters, which tests to use. The assessment regulations will define those parameters and specify matters such as which kids will be allowed to take alternate tests and when tests must be given in languages other than English.

“Supplement Not Supplant”

Right from the beginning, Title I funds were meant to add to a school or school district’s resources for educating at-risk children, not to take the place of funds that states and local school districts should be providing for them in the first place. One sticky question is how should school districts be required to show that these are supplemental funds. The Department of Education has suggested one concept—schools would have to show that they are spending the same amount on Title I kids as they are on non-Title I kids before they count in Title I dollars. But even that seemingly simple idea can be complicated. For example, should teacher salaries be part of that equation, given that schools with a lot of low-income and/or minority kids usually get less experienced, and therefore lower-paid, teachers?

Getting “supplement not supplant” right is extremely important for American Indian/Alaska Native kids, given that they often attend schools with a high percentage of low-income students, they are overrepresented in special education and there are often high rates of abuse and neglect in their communities. All too often in the past non-Title I kids and schools have gotten the most benefit from Title I funding.

Public Comment

On April 1, the department released draft regulations, and negotiators met again from April 6 to April 8. The committee could not reach consensus on Title I regs, so it will meet for a third time April 18-19. If they can agree, the department will release their regulations for comment; if not, the department will draft its own regulations and release those for comment.

Either way, the public—parents, students, teachers, school administrators and others—will have a brief opportunity to review the regulators and offer comments and suggestions. The critical step here is to check the department’s website (scroll down to Negotiated Rulemaking) frequently to be able to access the draft regs as soon as they are published.

And Behind Door Number Two: Senate Committee on Indian Affairs

On April 6, the Senate Committee on Indian Affairs held a hearing on four education bills that would affect AI/AN children, two of which are more than a little controversial.

The Native American Education Opportunity Act introduced by Sen. John McCain, R-Arizona, would permit parents of AI/AN children attending BIE schools to apply to use 90 percent of the dollars BIE spends on each kid to send him or her to a different school or to pay for tutoring or online programs.

Courtesy Senate Committee on Indian Affairs

Sen. John McCain, R-Arizona, vigorously defended his proposed Native American Education Opportunity Act, saying that 50 percent of students in BIE schools did not graduate and BIE students’ test scores trailed far behind national averages.

DOI Acting Assistant Secretary – Indian Affairs Lawrence Roberts, Oneida Tribe of Indians of Wisconsin, expressed strong reservations about this proposal, saying that it would take money away from current BIE-supported, tribally-operated schools, which are already underfunded, and impact BIE per-pupil expenditures.

Roberts also pointed out that not every kid will get into a private school, despite implications by McCain and Ariz. State Rep. Carlyle Begay, who backed similar state legislation that passed last year, that St. Michael’s Indian School—a top-notch Catholic college prep school in Arizona—was the alternative to BIE schools.

National Indian Education Association President Patricia Whitefoot, Acoma Pueblo, said the legislation could negatively affect self-determination within the education system because it would take money away from schools operated by tribes and give it to states. Further, the schools children transferred to would not be required to consult with tribes.

Her thoughts elicited a disparaging response from McCain, who said he was not surprised by her comments since he had never seen organizations such as hers support giving families another opportunity.

Courtesy Senate Committee on Indian Affairs

National Indian Education Association President Patricia Whitefoot told the Senate Committee on Indian Affairs that she believed the proposed Native American Education Opportunity Act would impinge on tribal self-determination because it would take money away from tribes that ran BIE-funded schools and transfer it to states.

RELATED: Feds Don’t Know How Bad BIE Schools Are; McCain Offers Solution

The RAISE Act

Legislation introduced by SCIA Chairman John Barrasso, R-Wyoming, that would create an independent Indian Education Agency to oversee the BIE also met with reservations from Roberts, who said it was important to note that not every BIE school was underperforming and some were outpacing public schools. He also said it could take a long time to set up the independent agency Barrasso was proposing. Whitefoot asked how the Reforming American Indian Standards of Education Act of 2016 (RAISE Act) would align with the reorganization BIE has already undertaken and how tribes would be involved in the new agency’s work.

Opening Door Number Two

You can watch the hearing here, read the testimony that has been presented and write to your Congressional delegation or members of the SCIA to make your views known.