Paper due for American National Government class on Every Student Succeeds Act.

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Article

Will Decentralization Affect Educational Inequity? The Every Student Succeeds Act

Anna J. Egalite1, Lance D. Fusarelli1, and Bonnie C. Fusarelli1

Abstract Purpose: In December 2015, President Obama signed the Every Student Succeeds Act, which was a long overdue reauthorization of the Elementary and Secondary Education Act. What is remarkable about this new federal legislation is that it explicitly reverses the decades-long federal effort to more tightly couple the U.S. educational system. While not removing testing requirements, the legislation dramatically reduces the federal role in shaping education policy, returning significant power to the states to design educational systems as they best see fit. The law places sharp limits on the use of federal executive power over education and has the potential to remove the federal government from oversight and accountability over schools, raising questions about the equity implications of this policy change. Research Method: Utilizing public documents, including legislation, speeches by federal officials, analyses by policy organizations, and news accounts, the authors trace the evolution of federal efforts from a more tightly coupled educational system to one with greater state and local flexibility in order to estimate the equity impact of efforts to decentralize governance. Findings: While certain provisions of the Every Student Succeeds Act may reduce inequity and improve educational outcomes for all

1North Carolina State University, Raleigh, NC, USA

Corresponding Author: Anna J. Egalite, Educational Leadership, Policy, and Human Development, North Carolina State University, 2310 Stinson Drive, Poe 608E, Raleigh, NC 27695, USA. Email: [email protected]

735869EAQXXX10.1177/0013161X17735869Educational Administration QuarterlyEgalite et al. research-article2017

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students, rigorous enforcement of the law’s protections will be necessary in order to ensure existing inequities are not exacerbated.

Keywords ESSA, federal education policy, decentralization, governance, equity

With this bill, we reaffirm that fundamentally American ideal—that every child, regardless of race, income, background, the zip code where they live, deserves the chance to make of their lives what they will.

—President Barack Obama, December 10, 2015

On December 10, 2015, President Obama signed the Every Student Succeeds Act (ESSA; P.L. 114-95), replacing the No Child Left Behind Act (NCLB) as the most recent reauthorization of the landmark Elementary and Secondary Education Act (ESEA) of 1965, which provided federal funds to state and local education officials to improve educational opportunities for children from low-income families. In his remarks on signing the legislation, President Obama (2015) stated,

This bill makes long-overdue fixes to the last education law, replacing the one- size-fits-all approach to reform with a commitment to provide every student with a well-rounded education. It creates new partnerships between the states, which will have new flexibility to tailor their improvement plans, and the federal government, which will have the oversight to make sure the plans are sound.

To ensure fair and inclusive state-level educational systems that prepare all children for social and economic success, ESSA keeps NCLB’s require- ment for states to test students in Grades 3 to 8 and once in high school, and continues the federal mandate that school performance be publicly reported by various demographic subgroups. ESSA also requires states to intervene in low-performing schools, although the choices about specific corrective actions are now left to states (Tooley, 2015). However, ESSA sharply reduces the role of the executive branch, specifically limiting the ability of the Secretary of Education to grant waivers requiring states to adopt specific academic standards, assessments, accountability systems, or teacher evalua- tion systems (ESSA, 2015; Rotherham, 2015).

In many ways, the newest reauthorization of this federal education law reinforces previously existing restrictions such as those that prohibit forcing

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states to use a particular test for accountability purposes or prescribing numeric long-term goals or measures of interim progress for student achieve- ment and graduation rates (King, 2016). However, ESSA appears to be a response to redress what some deemed as overreach by the federal govern- ment, specifically by the Obama Administration and the U.S. Secretary of Education (McGuinn, 2016). There are four notable ways in which ESSA places new limits on the use of executive power over education, with implica- tions for equity.

We start with a definition of equity. An equitable community, as we define it, is one that pursues the common good by affirming the identities of con- stituent groups defined by race/ethnicity, gender, national origin, language, sexual orientation, religion, disability, and the intersection of these identities. An equitable community is proactive about encouraging inclusive practices and promoting cooperation between groups.

The first way that ESSA demonstrates the potential to affect equity is its statement that the Secretary of Education cannot use the state plan or waiver process to coerce or provide incentives for states to adopt a particular set of standards, including the Common Core State Standards, and thus dramati- cally diminishes the power of the federal purse. Second, ESSA prohibits the Secretary from specifying any aspect of teacher or school leader evaluations. This includes student performance on standardized tests, which states were required to include in teacher evaluations under NCLB waivers that were granted prior to the law’s reauthorization (U.S. Department of Education [USDOE], 2012). Third, while the federal government will continue to pro- vide oversight of the use of federal funds, ESSA gives states the flexibility to customize their accountability systems (ESSA, 2015). Specifically, states are required to ensure that accountability measures of student and school perfor- mance include non–test score measures but offers wide latitude to states to interpret that rule in a manner that is appropriate for their local context. When evaluating schools, states are permitted to include measures of student engagement or school climate for example, as well as access to and comple- tion of advanced coursework. In this regard, the trend started by NCLB waiv- ers to create more diversity in accountability systems across states continues, although the secretary of education no longer has the ability to supersede state plans.

Fourth, ESSA defers to state and local authorities to design school inter- ventions and supports for low-performing schools, which are defined as the bottom 5% of schools, schools in which student subgroups perform poorly, and schools in which more than one third of students fail to graduate. This represents a departure from the process under NCLB waivers, when the USDOE specified a narrow choice of school turnaround models (T. Dee, 2012). Under ESSA, states are required to develop and implement a support

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and improvement plan but the federal government cannot mandate exactly how states should intervene to turn around their lowest performing schools (ESSA, 2015), and while local input is encouraged, it is not mandated, further buttressing the state’s role in education policy design and implementation.

According to an OpEd by Robinson (2016), both Republicans and Democrats in Washington believe the USDOE should play a smaller role in education, in turn giving state and by extension local education authorities more power and control. If indeed power and control shift substantially back to the state and local levels, it will reverse three decades of increases in fed- eral control over education (Fusarelli & Fusarelli, 2015). Furthermore, the United States will be an anomaly in the world where most industrialized nations concentrate education policy at the national level in an attempt to increase their international competitiveness in a global economy and to ensure the advantages of education are available to all.

The purposes of this article are twofold: (1) to examine how ESSA might affect state and local education, specifically whether the promise of decentral- ization and devolution of power may reasonably be expected to occur; and (2) to draw on existing research in order to speculate on whether this promised devolution of power will enable state and local education officials to enhance educational quality and equity throughout the system or whether in fact it may create more separate, more unequal schools. We begin by providing a brief history of federal involvement in education, focusing on how ESEA evolved from a program designed to fight poverty to one that quantified school perfor- mance in the context of a high-stakes accountability regime and offered pre- scriptive policy choices for schools labeled underperforming. In particular, we describe federal education policy initiatives of the past several years, speculat- ing on possible outcomes as the new ESSA legislation is implemented and how it might affect equity across the U.S. educational system.

The Federal Role in Education: Cycles of Expansion and Contraction

We begin by detailing the expansion of the federal role in education. Since education is not specifically mentioned in the U.S. Constitution, it is a power reserved to the states under the Tenth Amendment’s Reserved Powers clause. However, since the mid-1960s, legislation that expands the federal govern- ment’s role in education has transformed the education landscape.

In an environment shaped by Brown v. Board of Education of Topeka (1954), the civil rights movement of the 1960s, including the passage of the Civil Rights Act of 1964, and Lyndon B. Johnson’s War on Poverty, a major shift in the federal role occurred with the passage of the landmark ESEA in

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1965. Reflecting the legislation’s antipoverty intent, President Johnson remarked at the signing of the bill, “By passing this bill, we bridge the gap between helplessness and hope for more than 5 million educationally deprived children” (Johnson, 1965). ESEA accomplished two primary goals: distribut- ing money to students in poverty through the vehicle of Title 1 and directing grants to state education agencies to build capacity, resulting in a steady growth in federal involvement in education.

Continuing the trend started by ESEA, mayors, governors, state legisla- tors, U.S. Secretaries of Education, and presidents played a more active role in shaping education policy at the local level throughout the latter half of the twentieth century. A judicial push in the 1970s (e.g., see Mills v. Board of Education of District of Columbia, 1972; PARC v. Commonwealth of Pennsylvania, 1972) and early federal action including the passage of the 1973 Rehabilitation Act and the establishment of the Bureau of Education for the Handicapped, set the scene for the Educating All Handicapped Children Act of 1975, later renamed the Individuals with Disabilities Education Act.

Federal intervention in education continued to escalate throughout the 1980s, with the publication of A Nation at Risk in 1983, which accelerated the movement toward test-based accountability systems. In 1988, George H. W. Bush ran as the “education president” and convened a National Education Summit in 1989 at which the nation’s 50 governors committed “to reorient the education system and to marshal widespread support for the needed reforms” (Bush, 1989). In the 1990s, under the banner of systemic reform, states attempted to induce organizational change by more tightly coupling key inputs, throughputs, and processes to improve the educational system (Fusarelli & Fusarelli, 2003). Such changes included implementation of more rigorous performance-based standards, high-stakes testing, and development of comprehensive accountability systems (Rowan & Miskel, 1999).

With the passage of NCLB in 2002, the federal government became increasingly involved in the nuts and bolts of schooling even at the local level by implementing a series of top-down command and control measures such as performance reporting and outcomes-based assessments. In practice, NCLB dramatically expanded the federal role in education policymaking by conditioning the receipt of Title I funds on student achievement outcomes (Manna, 2010). Schools were required to demonstrate that they were making adequate yearly progress based on the percentage of students who were pro- ficient on state assessments of Math and English Language Arts. Schools were assigned performance ratings based on overall proficiency rates on these tests, as well as proficiency rates for various categorical subgroups, defined by student race/ethnicity, eligibility for free or reduced-price lunch, students’ limited English proficiency, and student disability. States were

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permitted to choose their own test, to define proficiency, and to determine the schedule by which proficiency would be reached, up to a national target of 100% proficiency by 2014. Schools that failed to make adequate yearly prog- ress were identified for improvement and were subject to a series of cascad- ing sanctions, including offering and paying for supplemental educational services, school takeover, and public school choice (Smith, Roderick, & Degener, 2005). As predicted, over time, the changes associated with this decades-long transformation of the state and federal roles led to a loss of local control, as states and the federal government increased their involvement in education practice and policy (Tyack, 1990; Wirt & Kirst, 1997).

Critics at the state and local levels complained about the unworkable tenets of NCLB, such as the requirement that all students be 100% proficient by 2014. As Hess (2016) observed, “NCLB proved to be remarkably pre- scriptive about how states would measure school performance and what states would do to schools deemed ‘in need of improvement’” (p. 2). As the deadline loomed closer and it was evident they would fail to meet the mark, state and local officials pressed repeatedly for relief from the law. The inau- guration of President Obama presented an opportunity for change and repre- sents the third shift in federal influence on education policy, moving us from a focus on the amelioration of poverty, beyond a focus on measuring school performance, to an era of federal policy prescriptions.

Obama had a well-defined education agenda that he wanted state and local officials to embrace and implement. In the midst of the Great Recession, effectively utilizing the power of the purse through the Race to the Top (RTTT) competitive grant program, the Administration promised additional federal aid in the form of competitive grants to states adopting certain educa- tion reforms aligned with President Obama and U.S. Secretary of Education Arne Duncan’s reform agenda. In order to avoid laying off teachers and mak- ing significant cuts to education budgets, coupled with intense pressure to meet the RTTT proposal submission deadlines that would bring federal money to avoid those layoffs, most states quickly and with unprecedented speed adopted reforms aligned with the Administration’s agenda.

As the Race to the Top funds ran out and as Congress remained deadlocked on reauthorizing NCLB, the Administration sought to solidify the gains made through RTTT by granting waivers from key tenets of the legislation to states if they implemented reforms supported by the Administration (Hess, 2016). While such efforts were welcomed by state and local officials, many in Congress complained that President Obama was essentially legislating through the executive branch—superseding Congress’ authority by granting relief from the law. Many of the waivers granted were “big” waivers—waivers that went well beyond minor adjustments to the law (Saultz, McEachin, &

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Fusarelli, 2016). The language used by the Obama Administration evoked key principles of decentralization: that state and local education officials know best their needs, problems, and how to go about solving them; that change cannot be mandated by Washington; and that overly prescriptive rules and regulations inhibit effective organizational change (Wong, 2015).

While in general agreement with much of this position, Congressional leaders viewed the Obama Administration’s widespread granting of waivers as further evidence of the president’s abuse of executive power. Similar to battles over the Affordable Care Act, Congressional Republicans viewed the president’s actions to gut NCLB as a thinly veiled attempt to legislate through the executive branch. These concerns became significant enough that Congressional leaders were moved after a decade-long stalemate to reautho- rize NCLB via the Every Student Succeeds Act (U.S. Senate Committee on Health, Education, Labor, and Pensions Pressroom, 2013).

In large measure a sharp and pointed rebuke of President Obama and his policies, ESSA severely limits the power of the executive branch over educa- tion; specifically, the power of the secretary of education to grant waivers from the law. Celebrating its passage, Senator Lamar Alexander said, “You had Washington running 80,000 schools in 42 states. We got rid of all that” (Alexander, 2015). Popular support was assured by an unlikely coalition of conservatives and teachers unions, brought together by backlash to the nar- row and prescriptive nature of education policy under the Obama Administration and its perceived federal overreach. The bill had strong bipar- tisan support in both chambers, passing the House by a vote of 359-64 and the Senate by a vote of 85-12. In the course of Obama’s Administration, the United States went from a historically high level of federal involvement in education to one sharply constricted by a single act of Congress, the passage of ESSA. The Administration failed to take into consideration the need for local buy-in and they forced states to move too rapidly, which led to a politi- cal backlash and charges of federal overreach (McGuinn, 2016). Ironically, the Obama Administration’s willingness to circumvent NCLB and govern by executive fiat led to passage of ESSA, which dramatically reduces the federal footprint in education (McGuinn, 2016).

The progression of increasing federal control over education since President George H. W. Bush’s initial, limited efforts to create voluntary national stan- dards had been quite remarkable. In less than three decades, the federal gov- ernment moved from little more than funding a small portion of education, mostly targeted to students most at risk, to encouraging states to adopt higher standards and curriculum, adopt school report cards, and implement high- stakes testing and accountability systems, including mandating annual testing of children in Grades 3 to 8 in reading and math; disaggregating testing by

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student subgroup; and influencing what constitutes a highly qualified teacher (Cross, 2014; DeBray, 2006; McGuinn, 2006). More recent federal efforts such as the promotion of college and career-ready standards, school turn- around models, and expanded school choice were accomplished through the competitive grant program known as Race to the Top and the USDOE’s deci- sion to leverage ESEA flexibility requests to incentivize states to enact a pre- ferred set of education policies in exchange for relief from NCLB’s more onerous requirements (McGuinn, 2012).

Some scholars have argued that the federal government simply followed the lead of innovative states (Mazzoni, 1995), while others asserted that the federal government, especially under the Obama Administration, purposefully used its visibility and the “power of the purse” during a historic economic recession to establish programs such as the Race to the Top initiative to great effect to induce preferred reforms at the state level (Fusarelli & Fusarelli, 2015). Regardless of whether the federal government is tapping innovation or using fiscal coercion to accomplish otherwise prohibited goals, the clear direc- tion in federal education policy from George H. W. Bush to Obama had been a marked effort to more tightly couple the educational system in pursuit of effectiveness and efficiency (Fusarelli & Fusarelli, 2015). Several civil rights organizations believe that equity was also advanced through NCLB’s provi- sions, specifically its requirement to disaggregate student performance data by subgroup. In fact, one of the major concerns of civil rights advocates is that the promise of decentralization offered in ESSA will lead to greater inequity in schooling as states diversify their accountability systems and expand mea- sures of school quality beyond test scores and graduation rates. As the United States enters the next phase of decentralized education policymaking under ESSA, these equity issues deserve special consideration.

ESSA and the Equity Question

While it would be premature to assess whether ESSA will affect educational inequity, the tension is evident by Brown’s (2015) comment in a Washington Post column, which states that the law

attempts to thread the needle between conservatives who want to shrink the federal government’s footprint in education and civil rights advocates who worry that some states, left to their own devices, will obfuscate or ignore the poor performance of schools serving low-income and minority students.

In a March 2016 letter to then-acting Secretary King, members of The Leadership Conference on Civil and Human Rights, representing 54 organi- zations, urged Secretary King to use the power of the USDOE to exercise

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“robust and meaningful federal regulation and oversight” in implementing ESSA and stated their belief that such enforcement is “the only way for states, districts, and schools to be in compliance and consistent with the law’s intent.” The letter went on to state,

Given the long history of state and local decisions shortchanging vulnerable students, the department cannot shirk from its regulatory and enforcement responsibilities to ensure that the implementation of ESSA eliminates, not perpetuates, persistent inequities in our nation’s public education system.

Researchers worry that while some states will undoubtedly use their newly granted freedom to try to improve their educational systems, others may well do the bare minimum, reports Gerson (2016) in a Washington Post OpEd. Darling-Hammond (2007) candidly notes that unless states commit to the goal of equity as a means for transforming American education, this could result in the further marginalization of students of color, students with dis- abilities, and English language learners. While states are still required to identify achievement gaps by subgroups, they are essentially no longer required to follow prescribed remedies; therefore, vastly different responses may occur across states. An essential policy question to consider at this junc- ture, therefore, is what effect the elevation of states’ rights will have on edu- cational equity.

An important consideration is that deference to the states assumes that the key state-level actors are well positioned to make influential educational policy decisions, but personnel and policy churn make it hard to maintain focused efforts to ameliorate persistent educational inequities (Burnette, 2016). Many of the state institutions tasked with selecting, overseeing, and implementing state education policies have been hollowed out by budget cuts in recent years (Burnette, 2016). Turnover among state chief education offi- cers, among school superintendents—whose average tenure is just 3 years in urban areas, according to a survey conducted by the Council of the Great City Schools (2014)—and within state education departments may further under- mine the capacity of state and local education authorities to aggressively ameliorate educational inequities.

Another factor worth considering is a growing determination among states to push back against perceived overreach by the executive branch in educa- tion reform under the Obama Administration, which may accelerate efforts to build capacity at the state level. In a newspaper account, Brown (2016) notes that recent controversy over the negotiated rule-making process of ESSA

has pitted the Education Department and its allies in the civil rights movement, who say they are trying to ensure that children in high-poverty schools get the

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federal aid they are due, against a wide range of opponents—including Republicans, teachers unions and district and state education leaders—who have accused the Obama administration of overreaching its authority and threatening to introduce chaos into district budgets and classrooms nationwide. (p. 1)

These conflicts give us a taste of the upcoming political battles over imple- mentation of ESSA—the writing of rules and regulations to administer the law—and how the outcome of those battles may shape how much power and authority are actually devolved to state and local education officials. Education Secretary Betsy DeVos has already come under fire from Senator Alexander and conservatives for the detailed feedback they have provided on drafts of states’ accountability plans, saying that it constitutes federal over- reach, while civil rights organizations have criticized Secretary DeVos for not being aggressive enough in ensuring states comply with requirements built in to ensure equity.

The empirical evidence assessing the extent to which increased state involvement in local education governance and reform has improved educa- tion is mixed. Researchers contributing to a volume of case studies examin- ing the issue were split—some believed increased state and federal control reduced educational inequity while others thought it made the problem worse (Fusarelli & Cooper, 2009). In a blog post for the journal Education Next, Shuls (2016) commented, “Try as we might, we simply haven’t figured out, in our current public education system, how to deliver on both of these prin- ciples” of local control and equity. The outcome of ESSA will contribute significantly to this debate, as legislators and policymakers struggle to find the ideal mix between centralization and decentralization and strategies that promote equity in addition to providing for the general welfare.

Specific Provisions With Potential to Affect Equity

The original legislative intent of ESEA was to ensure equal educational opportunity for all children, regardless of family background, student demo- graphics, disability, or English language proficiency. Subsequent reauthori- zations sought to accomplish that goal by centralizing authority to higher levels of government. The result of an uncommon bipartisan compromise, ESSA reverses that trend by devolving federal control to the states. What specific provisions in the latest reauthorization of this landmark federal leg- islation have the potential to advance or inhibit ESEA’s foundational commit- ment to equity?

First, ESSA maintains a focus on underperforming students by requiring states to identify for comprehensive support and improvement the lowest

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performing 5% of all schools and any high schools that fail to graduate one third or more of their students. Having identified those schools most in need of comprehensive support and improvement, states must target resources to them by way of a comprehensive and evidence-based improvement plan. Done right, a school turnaround strategy can help narrow achievement gaps but the exact contours of what the “right approach” looks like remain elusive, which is why states will need to refer to 14 years of practice and research when designing such plans.

State leaders may benefit from reviewing evidence from North Carolina, which suggests that school turnaround efforts should minimize the adminis- trative burden placed on teachers to avoid a reduction in instructional time (Ladd & Heissel, 2016). Evidence from California’s turnaround efforts indi- cates that dramatic turnaround models that bring in new leadership and staff, implement new instructional practices, and rely on outcomes-based teacher evaluation systems are particularly effective (T. Dee, 2012). Furthermore, school turnaround evidence from Massachusetts (Schueler, Goodman, & Deming, 2016) points to the efficacy of intensive small-group instruction and evidence from Los Angeles (Strunk, Marsh, Hashim, Bush-Mecenas, & Weinstein, 2016) serves as a cautionary tale about avoiding policy confusion, which could have a negative influence on implementation. Thus, the research base exists to inform policy and practice, but what approach to adopt and how to fund it remains highly controversial. This suggests that ESSA has the potential to advance equity by offering states a newfound flexibility to learn from experiments in school turnarounds across multiple contexts.

Of note, funding for state efforts to support underperforming schools will no longer come though the stand-alone School Improvement Grant program, which ESSA discontinues by consolidating it with Title I money. Section 1003(b)(1)(A) actually increases the amount of money states can set aside for school improvement from 4% to 7% of Title I funding.

Further bolstering support for low-performing students under ESSA, Title IV, Part A of ESSA authorizes $1.65 billion for Student Support and Academic Enrichment Grants, which can be directed toward dropout prevention efforts. Funds can be used to provide well-rounded educational programming, such as music and the arts, as well as college and career readiness initiatives or they can be directed toward drug and violence prevention or mental health programs, depending on local priorities. Finally, schools in which more than 40% of the population are low-income students may be designated as a “school wide” Title I program. These schools will have greater flexibility over spending and will be permitted to commingle federal funds with state and local resources in order to develop comprehensive plans for ensuring all students meet state standards.

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Second, while NCLB was criticized for focusing attention on those stu- dents who were close to basic proficiency (Booher-Jennings, 2005; Krieg, 2008; Reback, 2008), ESSA grants states the flexibility to choose how heav- ily they want to weight various accountability indicators, which will hope- fully prompt states to consider outcomes for students in the tails of the achievement distribution, not just those who are on the proficiency bubble. This change is responsive to recent empirical evidence of large negative impacts of NCLB on educational attainment outcomes and later life earnings for the lowest-scoring students (see Deming, Cohodes, Jennings, & Jencks, 2016). Specifically, ESSA requires a minimum of four indicators for elemen- tary and middle schools: three academic indicators—such as proficiency on the state test, English-language proficiency, and one other, such as student growth—plus one school-quality indicator, which could be student atten- dance, chronic absenteeism, dropout rates, school climate, arts, or staff reten- tion. High schools must also include graduation rates. It is up to individual states to decide how they want to weight these indicators but all accountabil- ity data have to be disaggregated by subgroup, not just test scores.

An analysis of equity provisions under ESSA conducted by Cook-Harvey, Darling-Hammond, Lam, Mercer, and Roc (2016) suggests the diversifica- tion of accountability indicators could be a promising vehicle for advancing equity, particularly if states develop a dashboard of indicators that permit “schools, districts, and states to identify challenges and solutions to close opportunity gaps” (p. 1), but a pressing question is whether states will use this newfound flexibility in creative ways to implement bold interventions with the potential to improve outcomes for all students or whether political culture and other mediating factors will prompt states to merely demonstrate mini- mal compliance with the federal law (Louis, Thomas, Gordon, & Febey, 2008) and continue with business as usual. As Secretary King noted, “[ESSA] will require vigilance on the part of educators, the civil rights community, and state leaders to ensure that new flexibility helps us to close achievement gaps rather than obscure them” (King, 2016). If history is an indicator, we can expect states to experiment when designing their accountability systems under ESSA. By 2014, for instance, 18 states had taken advantage of NCLB waivers to include multiple measures in their accountability system, beyond student proficiency, graduation rates, or test participation (Polikoff, McEachin, Wrabel, & Duque, 2014). Under ESSA, states may choose to incorporate measures such as disproportionality in discipline data and student climate surveys. Policy analysts will need to pay particularly close attention to new measures that go beyond proficiency and their implications for equity.

Third, ESSA shines a spotlight on subgroups in ways that have never been required before. Under NCLB waivers, states were permitted to create “super

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subgroups,” which allowed them to combine various subgroups into a single category for accountability purposes but ESSA disallows that practice. Academic achievement outcomes must be disaggregated at the school level by gender, race/ethnicity, economically disadvantaged status, student disabil- ity status, migrant status, and English proficiency status. Furthermore, ESSA requires that states include students’ English-language proficiency in state accountability plans, which has never before been required by the federal government. Only six states currently do this (Martin, Sargrad, & Batel, 2016), which is remarkable given that 9% of U.S. public school students are English language learners (USDOE, 2015).

While the flexibility and transparency provisions outlined thus far offer some promising indicators for ways in which ESSA has the potential to advance equity, the most encouraging changes the new federal law makes in this regard relate to school funding formulas. Title I Part A is the federal gov- ernment’s largest federal investment in elementary and secondary education. The original legislation was written with an antipoverty intent but the opacity of its funding formulas has restricted the effectiveness of this long-standing federal investment (Gordon, 2016; Gordon & Reber, 2015). One way that ESSA might promote equity through Title I funding is by clarifying fiscal compliance issues that have left this program mired in bureaucratic confu- sion. Specifically, the technical details of the “supplement, not supplant” (SNS) requirement of ESEA that ensures states use Title I funds for addi- tional spending, and not as a replacement for existing spending, has proven troublesome for districts to navigate (Junge & Krvaric, 2012). Most districts have hired Title I coordinators to ensure they adhere to the complex state and federal rules governing this regulation but confusion about permissible uses of Title I funds is commonplace (Gordon, 2016). As a result of uncertainty about what spending is technically permissible under this regulation, these coordinators often prioritize spending on “add-on” services such as teacher professional development or after-school programs that are clearly supple- mental but are not necessarily effective at improving student outcomes (Dynarski & Kainz, 2015). ESSA addresses this issue with a new revenue- based supplemental funds test that encourages schools to more effectively use their Title I funds to improve student outcomes (Gordon, 2016; Hess & Eden, 2017). Equity may be advanced under ESSA if these new rules reduce the fear of a federal audit uncovering fiscal noncompliance, giving districts the confidence to pursue bold interventions and to serve as significant leaders of systemic educational reform (Rorrer, Skrla, & Scheurich, 2008).

Another way that ESSA might promote equity is through USDOE regula- tions concerning its comparability requirement. Because Title I funds are allocated to the school district for distribution instead of being allocated

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directly to schools, the comparability requirement is intended to promote equitable distribution of state and local funds across schools within a given district. Nonetheless, many school districts do not divide funds equally to ensure that high-poverty schools get as many dollars per student as schools with more affluent students. In a blog post for the Brookings Institution, Roza (2010) notes that the comparability provision “loophole” requires that teacher salaries are counted as full-time-equivalent positions instead of being mea- sured by salary differentials (ESEA, Section 1118(c)(2)(B)). Because more experienced teachers tend to cluster in more affluent schools (Boyd, Lankford, Loeb, & Wyckoff, 2005; Hanushek, Kain, & Rivkin, 2004; Lankford, Loeb, & Wyckoff, 2002), when school districts allocate funding based on staffing ratios instead of teacher salaries, this often results in wealthier schools receiv- ing more funding than low-income schools (Woodworth, 2013).

ESSA might overcome this inequity through regulations by the USDOE, which has proposed that districts be required to demonstrate comparable spending between schools by counting teacher salary differentials instead of counting full-time-equivalent positions, as reported in Education Week by Ujifusa (2016). Nevertheless, the rapid growth of charter schools, which essentially operate as semiautonomous districts, and thus are not subject to the same requirements for uniform budgeting and personnel decisions as their traditional public school counterparts, may present an even bigger chal- lenge to documenting the “comparable” distribution of resources. Finally, even though the All Children Are Equal Act (HR 2485) never made it out of committee, ESSA provides hope for more equitable funding practices to rural high-poverty schools that have historically been disadvantaged under current Title I funding formulas because their lower student enrollment counts result in the receipt of fewer funds than schools in population-dense urban centers.

It remains to be seen whether such regulations and changes in formulas will be permitted. On one side, House Education and the Workforce Chair John Kline and the Chair of the U.S. Senate Committee on Health, Education, Labor & Pensions Lamar Alexander claim that such regulations go beyond the scope of what the law permits and will require states to complete a costly overhaul of their finance systems (Alexander, 2016). On the other side, for- mer Secretary of Education John B. King Jr. and Senators Elizabeth Warren and Patty Murray assert that the proposed regulations are consistent with the law’s origin as a civil rights piece of legislation. It remains to be seen what these regulations will look like in practice.

Regardless of the outcome of the political battle over proposed regulations described above, ESSA is still expected to spotlight inequities in school spending through its school finance reporting requirements (Roza, 2016). Currently, district accounting practices do not facilitate school-by-school

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spending comparisons but ESSA’s new school-level reporting requirement will highlight systemic inequities in school district funding formulas that regressively send a larger share of state and local funds to more affluent schools, which are more likely to employ higher salaried teachers (Carr, Gray, & Holley, 2007; Roza & Hill, 2004). Once these reports become avail- able in the 2017-2018 school year, districts can anticipate pushback from advocacy groups about why long-standing policies result in lower spending on poor and minority students than on their more affluent peers. Thus, in the same way that NCLB influenced equity in education by shining a spotlight on student outcomes by subgroup, ESSA has the potential to influence equity in education by highlighting disparities in school spending.

As data about these funding inequities accumulates, it remains important for the education community to apply consistent standards for equity evalua- tion (Berne & Stiefel, 1979) because evidence of disparate impacts will likely force school boards to revise local education policies. While large-scale teacher reassignments might be an unpopular remedy (Weingarten, 2016), other solutions might include reducing class sizes in those schools with lower salaried teachers or concentrating literacy specialists, aides, tutors, counsel- ors, or other support staff in underresourced schools (Roza & Yatsko, 2010). Woodworth (2013) proposes switching to a weighted student funding for- mula, also known as student-based budgeting. Under this approach, the edu- cation funding associated with an individual student is determined based on characteristics such as special education status or family income, which are thought to influence a child’s educational needs. A pilot program under Title I Part F of ESSA will actually allow up to 50 school districts to experiment with student-based budgeting. Termed the “Flexibility for Equitable Per- Pupil Funding” program, participating districts will be able to consolidate federal, state, and local funds in order to implement a weighted student fund- ing system. Schools will receive more funding for children with characteris- tics associated with educational disadvantage, such as students with special educational needs, students for whom English is a second language, or other characteristics chosen by the local education agency.

Finally, ESSA recognizes the decades of research indicating the impor- tance of school leadership. ESSA specifically allows states to create new principal and school leadership academies to help meet the need for effective educators in high-needs schools and ESSA allows Title II funds to be used for principal professional development for specific contexts (such as technology or STEM education). Of some concern is the provision in ESSA that allows Title II funds to be moved to Title I and what impact that might have on local teacher and principal professional development. Also of note is that, after a 4-year phase-in period, 80% of professional development funds under Title II

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will be directed to higher poverty districts. This latter provision has the potential to enhance the quality of education for students in historically low- performing schools.

The Politics of Rulemaking and Enforcement

As noted above, political battles have already erupted over proposed rules and regulations being created to implement ESSA. Secretary DeVos and offi- cials at the USDOE have come under fire from Senators Alexander and Chris Minnich, executive director of the Council of Chief State School Officers, who believe the detailed feedback given to states such as Delaware, where state officials were told the state’s achievement goals were not ambitious enough, exceeds the restricted authority given the USDOE under ESSA (Klein, 2017). Alexander singled out Jason Botel, the acting assistant secre- tary for elementary and secondary education, for criticism, suggesting he had not read the law carefully (Klein, 2017). A particular point of disagreement was Botel’s claim that since “ambitious” is not defined in ESSA, the author- ity to define it for states resides with the Secretary of Education. As a leading sponsor of the law (and whose staff is providing Botel and Secretary DeVos with assistance implementing ESSA), Alexander took umbrage with this assertion, stating, “Not only did we not authorize the Department of Education to define the word ambition, we specifically prohibited it” (Klein, 2017, p. 1). Alexander went on to state forcefully,

We tried to liberate them [states] with this new law, and now we have language coming out from the Department of Education that suggests they better slow down because the department is going to start telling them what to do again, playing “Mother may I?” And I want to stop that before it starts. (Klein, 2017, p. 2)

Already, some states are asking for waivers from the law before it is fully implemented—which is a situation ESSA was explicitly designed to prevent. New Jersey officials are seeking a waiver to enable it to test middle school students in the math course in which they are enrolled rather than the state tests created for each student’s grade. Having been hit hard by the antitesting backlash of the opt out movement, which runs strong in New Jersey, officials want the waiver to “encourage students to take advanced courses and avoid double testing students who chose to do so” (Burnette, 2017, p. 1). New Jersey is not alone in seeking waivers from ESSA. Kentucky officials have requested a waiver from the cap on the students the state gives alternative assessments to in high school. However, these efforts pale in comparison to

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Florida’s expansive waiver request, in which it asks “that it not be required to judge schools based on how well English-learners perform on language pro- ficiency exams or how wide achievement gaps are between poor, black, Latino, and other students and their white peers” (Burnette, 2017, p. 1). Civil rights advocates in Florida oppose the waiver request, asserting that the request “violates the spirit of the civil rights legacy of the law” (Burnette, 2017, p. 1).

When coupled with Secretary DeVos’ decision to review and possibly eliminate approximately 150 rules and regulations covering everything from Title IX to student privacy, as well as nearly 1,700 statements providing pol- icy guidance, and the Administration’s directive to scale back systemic reviews of discrimination complaints, including those involving students with special needs (covered under the Individuals with Disabilities Education Act) and LGBTQ students, it is possible that the equity provisions included in ESSA could be gutted or unenforced.

Limitations

A number of limitations apply to the present analysis of ESSA’s capacity to promote equity. First, we wish to acknowledge that many of the policies dis- cussed here are theoretically color-blind policies that adopt a laissez-faire approach to addressing the interaction of race and inequality. Other scholars have called for the development of more progressive race-conscious approaches to addressing inequality in education that more explicitly interact with the racial, ethnic, linguistic, and cultural complexity of the K-12 public school system (Wells, 2014).

Second, we wish to acknowledge that law and policy interventions alone are often insufficient to address equity issues as they are interpreted and enacted within a local sociopolitical context (Levinson, Sutton, & Winstead, 2009). Therefore, individual schools need to be proactive about infusing equity-focused actions into school practices; generating buy-in from all stakeholders; encouraging critical reflection on current practices and perva- sive assumptions; and training school personnel (Bigelow, 2008). If local school context isn’t considered, an “equity plan” can become an exercise in compliance.

Finally, the policy changes outlined here represent an incomplete account- ing of the actions needed to address the root causes of inequity, including systemic racism, heteronormativity, Christian normativity (Edgell, Gerteis, & Hartmann, 2006; Kamran, 2012), and ableism, for example. Complementary strategies that would address concerns about inequity include policy interven- tions and practices that explicitly address opportunity gaps, as opposed to

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achievement gaps (Milner, 2012); culturally responsive teaching practices (Gay, 2010; Ladson-Billings, 1995); asset-based pedagogies such as culturally sustaining pedagogy (Paris, 2012; Paris & Alim, 2014); universal design for learning (Waitoller & King Thorius, 2016); and efforts that maximize the recruitment and retention of teachers and leaders of color (Achinstein, Ogawa, Sexton, & Freitas, 2010; Ingersoll & May, 2011). For minority students, for example, exposure to more teachers of color can be particularly impactful on a broad range of outcomes, including standardized test scores (T. S. Dee, 2004), likelihood of participation in gifted and talented programs (Grissom & Redding, 2016), and academic perceptions and attitudes such as student reports of feeling cared for and happy in class (Egalite & Kisida, 2017).

Conclusion

ESSA offers a reset in relations between national, state, and local policymak- ers. The bipartisan bill, which President Obama termed a “Christmas mira- cle” (Obama, 2015), represents an opportunity to rethink how to best achieve excellence and equity in education. The transition period poses opportunities and challenges for educational leaders who wish to advance the goals of equity and excellence as states investigate new opportunities for innovation and revise accountability systems to take advantage of the full flexibility ESSA offers.

How will states use their newfound authority? Much of what happens with this new federal legislation will depend on what states make of the opportuni- ties it affords them. Somewhat ironically, much of the legislative language contained in ESSA harkens back to the original language used in Title VI of ESEA, which states that nothing in the Act authorizes the federal government to “exercise any direction, supervision or control” over education. ESSA empowers states in ways that they have not experienced for decades. Recognizing this challenge, Education Secretary John B. King remarked to reporters shortly after the law’s passage in January 2016, “The key will be to make sure states use their new flexibility around accountability and interven- tion systems in ways that are [focused] on equity and opportunity for the highest-need students” (Klein, 2016). In January 2017, the Trump Administration and House and Senate Republicans pushed to further erode the federal role by rejecting the regulatory language proposed by USDOE officials with regard to ESSA implementation. The few federal “guardrails” designed to preserve the focus on equity while scaling back the federal role may be further eroded. Thus, the onus of responsibility for equity will fall primarily to the states.

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State departments of education have traditionally been weak institu- tions but ESSA requires them to take the lead in choosing how to evaluate schools, principals, and teachers and how to target interventions. How effective they will be at these tasks remains to be seen (Fuller & Hollingworth, 2014). States will need time to build expertise around how to design an effective accountability system for their context, how to best target interventions to improve low-performing schools, and which mea- sures of student progress are most helpful. They need time to build capac- ity to design and implement new accountability systems, especially if they are incorporating innovative new measures such as those derived from student or parent surveys (Weiss & McGuinn, 2016). Long term, states will need to continue investments in longitudinal data systems in order to build a knowledge base about what types of interventions work in low- performing schools and they will need help with the human capital demands of building analytic capacity to assess the efficacy of particular resources and interventions.

In theory, there are many provisions in ESSA that might reduce educa- tional inequities, but only if states seize the opportunity that ESSA offers. States will play a decisive role moving forward. It remains to be seen if they have the capacity and willingness to leverage the flexibility offered by ESSA to promote greater equity in schooling.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors received no financial support for the research, authorship, and/or publica- tion of this article.

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Author Biographies

Anna J. Egalite is an assistant professor in the Department of Educational Leadership, Policy, and Human Development at North Carolina State University. Her research focuses on the evaluation of education policies and programs intended to close racial and economic achievement gaps. Her studies have examined school choice policy, school size, the influence of family background on intergenerational economic mobil- ity, and the diversification of the teacher labor force.

Lance D. Fusarelli is a professor in the Department of Educational Leadership, Policy, and Human Development at North Carolina State University. He conducts research on the politics of education, federal education policy, school choice, and school leadership.

Bonnie C. Fusarelli is a professor in the Department of Educational Leadership, Policy, and Human Development at North Carolina State University. Her research focuses on educational leadership and policy, the politics of school improvement, educational equity, and organizational change, with a particular focus on state-level education reform and leadership development for rural schools.