ESSA Negotiated Rulemaking Begins

Earlier this week, the U.S. Department of Education’s Negotiated Rulemaking Committee held its first series of meetings to discuss regulation of the Every Student Succeeds Act (ESSA). The negotiated rule making process brings together Federal, State, and Local administrators, teachers, principals, tribal leaders, and civil rights and business community stakeholders to draft and improve the substance of ESSA’s regulations. Members of the National Association for Music Education’s (NAfME) policy team attended this week’s meetings and served as audience observers.

Day 1, ‘Supplement, Not Supplant’

On March 21, the Negotiated Rulemaking Committee for began its series of discussions on Title I regulations with the issue of supplement not supplant.  ESSA maintains the requirement that federal Title I funds must be used for additional supports for the most vulnerable students versus replacing state or local funds.  However, the test for compliance with this rule has changed in two significant ways. First, states and districts are no longer required to demonstrate that individual services are supplemental, effectively eliminating the need to itemize Title I services. Secondly, ESSA combines the two supplement-not-supplant tests for targeted assistance and schoolwide programs into a single test focused on the methodology for allocating state and local funds.  Districts are now asked to show that schools are receiving all state and local funds they would otherwise receive if they were not provided Title I assistance dollars.

The new language raises questions about how these new compliance rules can be implemented effectively.  Specifically, the Committee addressed questions including:

  • How exactly to determine that Title I schools would receive all State and local funds they would otherwise receive without Title I assistance;
  • How to address school-based budgeting systems and weighted student funding systems within the methodology for allocating State and local funds;
  • Whether to create flexibility allowances for very small schools or for different allocations among grade spans;
  • How to help districts meet the two-year compliance requirement when the date of enactment falls in the middle of a school year (i.e. December 10, 2017); and
  • What enforcement and corrective actions should be taken for States that are not in compliance with the requirements.

Day 2-3, Assessments

From March 22-23, the Negotiated Rulemaking Committee moved their conversation to pursue a dialogue on assessments. Most notably, the conversation was concerned about two populations of students:

  • Students with ‘significant cognitive disabilities’;
  • Students who are English language learners.

As part of ESSA, new statutory provisions have been emphasized to promote equity for students with disabilities. Often, these students are not provided with the appropriate accommodations or meaningful opportunities to access the same assessments as their peers. In order to provide better equity for this population of students, the following questions were addressed:

  • Should the regulations provide further clarity and define the term “students with disabilities” in a way to encompass students who receive accommodations from other programs and other acts?
  • Should the regulations address aligning alternate academic achievement standards with the State’s challenging academic content standards?

The new ESSA also provides statutory language that states must ‘make every effort’ to develop assessments in languages other than English present ‘to a significant extent’ in the student population of the State. Questions were raised regarding this statue on:

  • What must a state do to demonstrate it has met the requirement to “make every effort”;
  • What constitutes a language to be present in a “significant extent”;

NAfME Submits Written Comments

NAfME has submitted written comments related to the supplement-not-supplant discussions; these comments emphasized the need for flexibility for districts in determining supplement-not-supplant tests, and for states in monitoring for compliance.  Flexibility is particularly important for music education programs in the context of school-based management models, as it could allow funds to be used in Title I schools either to expand or establish program offerings in well-rounded subjects such as music, without being penalized for existing disparities in curricula.

Next Meeting

The Negotiated Rulemaking Committee will reconvene again from April 6 – 8, 2016. Members of NAfME’s policy team plan to be in attendance and provide further updates as they come.

Shannon Kelly, Director of Advocacy and Policy, and Ronny Lau, Legislative Policy Advisor, Center for Advocacy, Policy, and Constituency Engagement, March 25, 2016. © National Association for Music Education (