Response to ESSA Proposed Regulations

August 1, 2016

Ms. Meredith Miller
U.S. Department of Education
400 Maryland Avenue, SW, Room 3C106
Washington, DC 20202-2800

Docket ID: ED-2016-OESE-0032

Dear Ms. Miller:

We write on behalf of the 6.2 million public school students in California to comment on the U.S. Department of Education’s (ED) Notice of Proposed Rulemaking (NPRM) on accountability and state plans under the Elementary and Secondary Education Act (ESEA) as amended by the Every Student Succeeds Act (ESSA). California appreciates the opportunities ESSA provides to improve supports for our students and their families and we look forward to working with ED during this rulemaking and planning period. It is in this vein that we submit these comments, which are not intended to reflect the entirety of our concerns with the proposed regulations, but rather to illustrate where they impede progress toward ESSA’s overall goal: to provide states with maximum flexibility while ensuring a focus on improving performance, equity and access, and improvement for all students.

By way of context for California’s comments, in 2013, the state embarked on a significant overhaul of how it provided resources to districts and created a framework for a multiple measures accountability system focused on eight state priority areas. At the heart of this fundamental change is increasing local control and flexibility while emphasizing equity, continuous improvement, and support. Under the state’s Local Control Funding Formula (LCFF), local educational agencies (LEAs) receive base funding for each student they serve with additional funding provided for each high needs student – defined as low income students, English learners (ELs), and foster youth.

Additionally, LEAs must engage in strategic planning to adopt and annually update three-year Local Control and Accountability Plans (LCAPs) that focus on how they will meet each of the eight state priorities and more effectively serve high needs students. The State Board of Education (SBE) is currently developing the LCFF Evaluation Rubrics, which will support the accountability processes that are taking place at the local level through the LCAP by providing information to all LEAs and schools about performance on a concise set of indicators across the LCFF priority areas. These elements provide the foundation for a single accountability and continuous improvement system based on the principles of California’s locally-driven funding formula.

The architecture of this single, coherent accountability and continuous improvement system has emerged after significant engagement with stakeholders, including teachers, administrators, school leaders, parents, students, community groups, equity groups, and the business community, over the last few years. Reporting performance on multiple indicators reflects a holistic understanding of what contributes to a quality education for all students and student groups. It allows educators and policymakers to identify more precisely where focused or more intensive support is needed. And it promotes equity and continuous improvement by focusing on disparities among student groups across all indicators, which supports local decision-makers and stakeholders in prioritizing improvement efforts.

ESSA provides an exciting opportunity for California to have a single, comprehensive accountability system based on performance, equity, and improvement that would meet both state and federal requirements. Unfortunately, we believe that the proposed regulations, if adopted without changes, will derail the significant progress being made in our state towards creating a single, aligned system.

We outline below California’s most significant concerns about the proposed regulations, the basis for those concerns, and alternate regulatory language for your consideration. 

A Single Summative Rating Undermines Equity by Masking Disparities within Indicators and Undercuts the Value of a Multiple Measures System

The proposed regulations go beyond ESSA by requiring that a state’s system of meaningful differentiation assign a single summative rating to each school based on all of the required indicators.

§200.18(b)(4)

 “A State must define annual meaningful differentiation in a manner that . . . [r]esults in a single rating from among at least three distinct rating categories for each school, based on a school’s level of performance on each indicator, to describe a school’s summative performance….”

The methodology that the SBE approved at its May 2016 meeting includes five levels of performance. It does not, however, reduce the performance across all state indicators to a single summative rating.

A single rating would severely undercut the value of the multiple measures approach that the state adopted as a key feature of LCFF and would undermine the value of ESSA’s requirement that states include indicators beyond test scores. Reporting performance on indicators separately underscores the broader understanding of what contributes to a positive educational experience for students by focusing on a variety of outcomes and ensuring that disparities among student groups within individual measures are not overlooked.

A summative rating, in contrast, necessarily glosses over differences in performance across indicators and inappropriately draws school leaders, stakeholders, and the public focus on the single rating rather than a more robust reflection of performance demonstrated by the individual indicators. We reach this conclusion having over 15 years’ experience with a single rating where the public paid little attention to the individual components that comprised that single rating. Importantly, reducing a student group’s performance down to a single rating on all indicators could mask serious disparities that should be addressed for that student group, for example, English learners or students with disabilities.

Requiring the reporting of a single summative rating removes states’ flexibility to emphasize a broader view of the multiple measures and student group accountability that are key in ESSA. This view is supported by states beyond California, as illustrated by comments submitted by the Council of Chief State School Officers and the National Governors Association.

There are multiple ways to more effectively differentiate schools and identify the lowest performing five percent that provide a better determination of the schools most in need of support. One approach that is consistent with the SBE’s approved methodology is to differentiate schools based on performance levels across the state indicators. For example, it is possible to identify five percent of schools by initially including any school that is in the lowest performance category on at least one indicator, then selecting the schools that are in the lowest performance category on at least two other indicators, and then proceed to at least three other indicators until identifying five percent of schools. Another approach could be to review schools’ performance in the lowest two performance levels on assessments, then narrow the pool of schools based on performance on another indicator, and repeat this process for all indicators until five percent of the lowest performing schools are identified.

Recommendation: We recommend striking the requirement for a single summative rating in subsection (b)(4) in § 200.18 so that states maintain the flexibility provided in the ESSA statute to determine how to identify the lowest performing schools.

The Timeline for Submitting State Plans and Identifying Schools Is Unrealistic

The proposed regulations move ahead by almost a full year the timetable for the submission of state plans and for states to make initial determinations of schools’ performance. This is inconsistent with Congressional intent to provide an additional year as evidenced by the approval of the Fiscal Year (FY) 2016 omnibus bill in December 2015 that delayed ESSA implementation by a year. Under the proposed regulations, states would receive approval for their State Plans in late summer or early fall of 2017. However, they must begin implementing interventions in the 2017–18 school year. This means that states must identify schools for comprehensive or targeted assistance no later than summer of 2017, possibly before they have finalized their state plans and likely before ED has approved the plans, and begin implementing a statewide system of school-level supports without explicit approval from ED. This would also be after LEAs have adopted their budgets for 2017–18 and after they have adopted their three-year LCAP. Moreover, such an unrealistic timeline would essentially hamper states’ efforts to fully vet the quality and effectiveness of the indicators and improvement strategies and undertake extensive stakeholder engagement, a key component of the new law. This is not fair to states, LEAs, schools, or stakeholders.

The Council of Chief State School Officers, the National Governors Association, and other states have shared this concern in their response letters to ED regarding the proposed regulations.

Recommendation: We recommend revising § 200.19 to replace “2017–18” with “2018–19” to allow states to identify schools for assistance during the 2017–18 school year, based on indicators and school-improvement strategies, consistent with the ESSA statute’s requirement and the FY 2016 omnibus bill. This would allow for states to implement high-quality accountability systems in 2017–18 and use these systems to identify underperforming schools.

The Proposed Regulations’ Approach to Assigning Weights is Unduly Restrictive

The proposed regulations are significantly more prescriptive than the statute in describing how states must satisfy the requirement to assign “much greater weight” to the academic indicators §200.18(d). The proposed regulatory definition focuses on how the weighting affects a school’s identification for comprehensive support (bottom five percent) or targeted support. Specifically, the proposed regulations provide that the additional K–12 indicator(s) that a state uses cannot “change the identity of schools that would otherwise be identified” unless a school is making “significant progress” on at least one of the academic indicators—test scores, graduation rate, additional K–8 academic indicator, and EL progress. As a result, the additional K–12 indicator(s) can serve only as a downward ratchet for identification purposes and cannot be the marginal difference that keeps a school from being identified.

The statute does not include this level of detail. It provides only that a state’s system of meaningful differentiation must: (1) give “substantial weight” to test scores, graduation rate, the additional K-8 academic indicator, and EL progress and (2) provide, “in the aggregate, much greater weight” to these indicators than to the additional indicator(s) selected by the state, including the state-determined school quality indicators. ESEA/ESSA, § 1111(c)(4)(C)(ii). In the absence of the specific regulatory definition, states would therefore have substantial discretion in developing methodologies that give the academic indicators “much greater weight” than the additional indicator(s).

Under the SBE’s approved methodology, California could satisfy the federal requirement by giving each state indicator equal weight within the system of meaningful differentiation. For example, three out of the four indicators applicable to each grade span that the SBE has approved are “academic indicators” under ESSA. So giving each indicator equal weight would, at a minimum, assign 75 percent of the total weight to the academic indicators, which is consistent with the common-sense understanding of “much greater weight.”

The proposed regulation would undermine California’s straight-forward approach, because it is possible that a 25 percent weight given to a non-academic indicator (such as suspension rates) could take a school (or individual student group for purposes of targeted support) out of the bottom five percent classification. The proposed method for assigning weights renders the additional indicator(s) effectively meaningless for purpose of determining where to focus improvement efforts, which further undermines the multiple measures focus in the ESSA statute.

Recommendation: We recommend striking § 200.18(d) for the proposed regulations, to ensure that the final regulations do not prescribe too narrowly the discretion of states to weight indicators when determining schools in need of additional support in a manner consistent with the statute.

The Proposed Regulations Create Problems for Alternative Schools

The proposed regulations interpret ESSA’s requirement for the state plan to describe “a state accountability system,” ESSA, §1111(c)(1), to mean that the state must establish a “single statewide accountability system” that is “the same accountability system the State uses to annually meaningfully differentiate all public schools in the state,” §200.12(b)(4) (emphasis added), and uses the same indicators for all schools, §200.18(b).

This narrow interpretation would create problems for states, like California, that have a significant number of alternative schools that receive Title I funding. Alternative schools are designed to meet the needs of at-risk student populations, and include schools that serve students who are in custody in the juvenile court system or enrolled in drop-out recovery programs and continuation schools. These schools help students who are credit deficient make up credits and work toward graduation. Such schools often serve students for limited durations (which may or may not include the window for administering assessments), and, therefore, generally do not enroll students for their entire high school career.

Accordingly, some indicators that are appropriate measures of performance for comprehensive high schools cannot accurately measure the quality of educational programs at alternative schools. For example, many California alternative schools exist specifically to serve students who are behind on credits, and thus are unlikely to graduate within four years. Universally applying a four-year cohort graduation rate would result in the identification for comprehensive support of a significant number of alternative schools due to their program characteristics and without any regard to the achievements their students make during the time they are enrolled in such schools.

Data simulations completed earlier this year revealed that a significant number of alternative schools would be identified for comprehensive support if California were to apply a uniform set of indicators to all schools. This would limit resources available to support school improvement efforts at comprehensive high schools that are struggling based on indicators that accurately measure the quality of their program. This conflicts with ESSA’s stated goal to identify the schools where support is most needed, as the support system would effectively focus on only one type of school because the indicators used to measure performance would not apply meaningfully to that school type.

To address this concern, the SBE approved a methodology for calculating LEA- and school-level performance that assumes the subsequent adoption of a system that more effectively addresses the needs of alternative schools. California intends to approve a different, but equally robust system, which will include indicators that are more appropriate for alternative schools (e.g., replacing four-year cohort graduation rate with an extended year). California also intends to include a proportionate share of alternative schools identified under this separate approach within the five percent of schools identified for comprehensive support.

Recommendation: We recommend that the proposed regulations be revised to specify that states have flexibility to establish a single statewide accountability system with components that effectively measure and support alternative schools.

Proficiency on Assessments Is Too Narrowly Defined

ESSA in §1111(c)(4)(B)(i)(I) requires states to use an indicator of academic achievement that “measures proficiency on the statewide assessments in reading/language arts and mathematics.” The proposed regulations (§ 200.14) add a definition for “proficient” that requires that the academic achievement indicator “equally measure grade-level proficiency on the reading/language arts and mathematics assessments.” We are concerned that this definition is not only too narrow and resembles California’s old paradigm of accountability, but more importantly, forces all states to only emphasize a particular point of achievement. Conversely, California’s new system of continuous improvement looks across all achievement levels in all schools in the state. This proposal would also undoubtedly incentivize LEAs and schools to focus only on those students whose achievement falls near the proficiency cut scores instead of encouraging improvement among all students.

The broader description of “proficiency” in statute allows states to take into account all levels of performance and incentivize a focus on all students. Importing a nearly universally criticized aspect of the No Child Left Behind Act into ESSA through a narrower regulatory definition would be counter-productive.

Recommendation: We recommend revising the proposed regulations to track closely to the statutory language around the academic indicator based on assessment and delete the extraneous words that require the academic achievement indicator to “equally measure grade-level proficiency on the reading/language arts and mathematics assessments.” Deleting this from the proposed regulations will avoid an overly narrowly definition of proficiency for purposes of measuring school performance.

Proposed Regulations Go Beyond ESSA Requirements for School Improvement Plans

The proposed regulations go well beyond ESSA’s requirements related to school improvement plans for schools identified for comprehensive or targeted support. Illustrative examples include:

• Requiring LEAs to send notices with specified information to “the parents of each student enrolled” in a school identified for comprehensive or targeted assistance. §200.21(b) and §200.22(b).
• Specifying minimum elements of comprehensive support plans, which goes beyond the statute and that would likely require substantial staff time to complete, reducing the resources available to invest in directly serving students.  It would also add many pages to such plans, making them less accessible for stakeholders. For example:
  • Specifying minimum elements of the school needs assessment, which must be listed in the plan.
  • Describing the performance of every student group on every indicator.
  • Requiring that the analysis of resource inequities summarized in the plan include disproportionate rates of teacher assignments and disparities in per-pupil expenditures. §200.21(d)(4).

Each of these provisions imposes requirements that exceed the statute and are likely to be burdensome and divert resources intended to help needy students to administrative overhead. They will also add considerably to the length (and minimize accessibility for stakeholders) of such plans.

Recommendation: We recommend revising §200.21 and §200.22 to provide flexibility to states around the development of School Improvement Plans by removing requirements that go beyond the plan elements specified in statute.

Requirements for State, LEA, and School Report Cards are Excessive

The proposed regulations also include substantially more detailed requirements than ESSA about the mandated report cards. These requirements would carry significant administrative costs that could instead be invested in services for students. They would also create logistical and practical challenges in areas where California currently does not collect the required information. Several illustrative examples of proposed federal overreach are provided below. Specifically, the proposed regulations would require:

• States to disseminate reports cards by December 31 per § 200.30(e). This is an arbitrary date that is not tied to data reporting or other applicable timelines. This also goes beyond statute, which specifies only that states release the report card annually and affords flexibility for states to determine when the report should card should be released, based on data availability.
• States to specify the number and percentage of recently arrived ELs, but ESSA statute requires reporting only on the number and percentage of ELs achieving English language proficiency.
• The LEA report card to specify that states must develop a single statewide procedure that LEAs must use to calculate per pupil expenditures and school-level expenditures. ESSA requires that the report cards include per-pupil expenditures for each LEA and each school in the State, but the statute doesn’t require that state develop a uniform procedure. Such a requirement is not necessary, would be overly burdensome for LEAs, and would not provide the comparability and transparency that is the stated reason for the proposed regulations. A locally developed methodology that considers the unique circumstances of each LEA would be more appropriate and would allow for better comparisons within the LEA.

Recommendation: We recommend striking language in the proposed regulations addressing state, LEA, and school report cards that impose additional requirements beyond those in statute.

California appreciates the opportunity to provide feedback, as the regulations will have a significant impact on our state’s ongoing work to support LEAs and schools in utilizing a variety of indicators to continuously improve to meet the needs of all their students.

If you have any questions regarding the content of this letter, please contact Debra Brown, Director, Governmental Relations, California Department of Education, by phone at 916-319-0561 or by e-mail at dbrown@cde.ca.gov.

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