1-aasa-logo.jpg school innovations and achievement

This document is one in a series of reports on key aspects of the Every Student Succeeds Act (ESSA) produced in a partnership between AASA, The School Superintendents Association and School Innovations & Achievement’s Cabinet Report. The full set of resources is available at aasa.org/AASAESSA.aspx.

ESSA: A stunning compromise emerges from Congress

There would have been few in Washington, D.C., in January 2015 believed it was possible that a majority in Congress could support a reauthorization of the nation’s primary education law with President Barack Obama still in office. The track record wasn’t good and with an open presidential campaign looming on the horizon, the notion that a compromise could be found seemed far-fetched.

So it came as no surprise that critics immediately dismissed a proposal from House Republicans to overhaul the Elementary and Secondary Education Act (also known by the name of its following incarnation, the No Child Left Behind Act). The measure would have allowed families of low-income students to take their share of Title I dollars to the school of their choice, including charters. It would have also substantially reduced the amount of federally required testing. Although an unrelated spending dispute caused the House plan to be set aside, it received little support from either Senate leaders or the White House.

But simmering just under the surface was significant support for doing away with many of the most arduous and contentious elements of NCLB. Local school officials and state lawmakers had been pressing Congress for years to revise the federal accountability mandates, especially the unattainable requirement that all students reach proficiency in reading and math by the 2013-14 school year.

Another largely overlooked motivation was the serious umbrage many Congressional leaders took at the introduction of the waiver program that gave relief to states from those same NCLB mandates by the Obama administration two years prior. The action was viewed as an unprecedented bypass of Congress by a president already well-known for pushing the limits of his executive powers. So while the House reauthorization effort failed, the bill ignited some conversations that eventually led to the creation of the Every Student Succeeds Act.

Central to those talks was Lamar Alexander, Tennessee’s senior senator and chair of the Senate’s education committee. A former governor and university president, Alexander was no newcomer to the issues surrounding public education. In fact, as education secretary under George H.W. Bush in the early 1990s, Alexander was a key player in bringing forward a host of new ideas. Among them was a role for the federal government in raising curriculum standards, expanding school choice, increasing graduation rates and rewarding educator excellence.

It is important to note that some of those ideas became central to legislation championed a decade later by Bush’s son, George W. Bush, when he won passage of NCLB in 2001. And it is also more than a bit ironic that Alexander would play such an important role in building new legislation in 2015 that would remove many of those same ideals.

George W. Bush and NCLB

Bush’s home state of Texas had never been a bellwether when it came to progressive education programs. But the state had overtaken a massive upgrade under Gov. Ann Richards.

Perhaps the most important aspect was the introduction of an accountability system that required all schools to test and report scores for each subgroup. When Bush followed as governor, he strengthened the system by putting even

more emphasis on standardized testing and installed a new rating for judging how well schools and districts were performing.

These became pillars of NCLB when Bush was elected president. While there was bipartisan support for the bill, problems began to surface almost immediately. Many states set a low bar for proficiency during the first few years, setting themselves up for almost impossible benchmarks in the future, even for those states that had endeavored to make consistent gains toward the federal performance goals. As time went on, the requirement that all subgroups meet proficiency standards began to wear on even the best schools and districts.

By the time Obama took office, there were clear signs that NCLB had key dysfunctional elements that needed fixing—namely, the fact that 80,000 of the nation’s 100,000 public schools could be labeled as failing under federal law.

Obama and the NCLB waivers

Section 9401 of ESEA gave the Secretary of Education authority to waive federal education requirements “in order to assist them in increasing the quality of instruction for students and improving student academic achievement” (Elementary and Secondary Education Act (ESEA) § 9401, Waivers of Statutory and Regulatory Requirements (b)(1)(B)(i-ii), Pub. L. No. 107-110). Although the power generally applies to statutory or regulatory requirements, there are exceptions, including civil rights protections, prohibitions against using federal funds to supplant nonfederal support or requirements relating to parental participation and involvement, or the equitable participation of private school students and teachers (ESEA §9401 Waivers of Statutory and Regulatory Requirements (c), et.seq., Public Law No: 107-110)

If Obama’s use of that authority broke new ground, administration officials defended its use, given the circumstances. There was also an ambition to give states, especially those that had adopted the new state standards, an opportunity to build their own accountability models. The U.S. Department of Education then conditioned award of a waiver on four items:


  • Adoption of college- and career-ready standards in reading and language arts and math (the department purposefully did not specifically advocate adoption of the Common Core State Standards, which by 2011 had already become a political lightning rod in many states).
  • Develop and implement differentiated accountability and support systems. The goals had to be ambitious and could include different targets for schools and districts that performed differently.
  • Define and establish teacher and principal evaluation systems. The review had to use multiple measures, including “student achievement growth data.”
  • Evaluate and remove duplicative and burdensome reporting requirements (U.S. Department of Education, 2012).

While Congressional leaders fumed over the program, state and local school boards quickly jumped onboard. The program became official in August 2011 and all but eight states were operating under waivers by 2013.


Perhaps not surprisingly, the first element of NCLB that was dropped was the proficiency mandates. According to an October 2012 survey conducted by the Center on Education Policy, a D.C.-based think tank, nearly all of the waiver states dropped the ambitious goal of NCLB that all students become proficient in reading and math by 2014. This created new tensions with the administration vowing to maintain a line in the sand.

“This is not a pass on accountability,” said Melody Barnes, former director of the president’s domestic policy council. “There will be a high bar for states seeking flexibility within the law.”

But shortly after the waiver program got underway, researchers from the nonpartisan think tank New America found that a large percentage of the schools that had been identified for Program Improvement under NCLB were no longer in the “failing category.”

Indeed, out of a pool of 20,000 schools in 16 states, more than 65 percent were taken off interventions. In 10 states, the majority of schools were no longer identified as failing.

Opt-out and teacher evaluations

Testing has always been a hot-button issue with parents. “Too much, too often” has been a complaint registered in almost every district in the nation, especially when the testing is the result of a federal requirement.

New concerns about overtesting began to surface in 2014 in Florida, New Jersey and New York. The opt-out movement had become so strong, in fact, that federal officials began warning states of possible sanctions if too many students failed to take annual assessments.

Meanwhile, teacher groups were increasingly challenging the administration’s goals to link educator employment decisions with student test scores. Teacher unions argued that linking test scores with employment decisions was unfair, given the myriad social and economic influences on families and students well before they reach the classroom. That position didn’t get much traction until the unions reframed the question in terms of testing.

Instead of fighting the evaluation tool itself, teachers in New York, either by design or by fortune, began urging parents to opt out of standardized testing altogether. The combination of the two overlapping interests gave another new impetus to Congress to scrap NCLB altogether.

Compromise and ESSA

It was against this backdrop that the two leaders of the Senate education committee, Republican Lamar Alexander and Democrat Patty Murray of Washington, began informal conversations about a bipartisan education bill.

Within a few weeks, there were clear signs of compromise. Republicans gave up demands that would allow federal dollars for low-income children to follow them to any school they transferred to and Democrats gave in on state authority over school accountability. Even the White House made a key concession by agreeing to reduce the amount of testing.

After passing out of both houses of Congress in the summer, the Every Student Succeeds Act was signed into law by President Obama on December 10, 2015.