[Senate Hearing 114-785]
[From the U.S. Government Publishing Office]








                                                        S. Hrg. 114-785

  ESSA IMPLEMENTATION: UPDATE FROM THE U.S. SECRETARY OF EDUCATION ON 
                          PROPOSED REGULATIONS

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                                   ON

  EXAMINING EVERY STUDENT SUCCEEDS ACT IMPLEMENTATION, FOCUSING ON AN 
     UPDATE FROM THE SECRETARY OF EDUCATION ON PROPOSED REGULATIONS

                               __________

                             JUNE 29, 2016

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions







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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman

MICHAEL B. ENZI, Wyoming             PATTY MURRAY, Washington
RICHARD BURR, North Carolina         BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia              BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky                  ROBERT P. CASEY, JR., Pennsylvania
SUSAN COLLINS, Maine                 AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska               MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois                  SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina            TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah                 CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas                  ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana

                David P. Cleary, Republican Staff Director
         Lindsey Ward Seidman, Republican Deputy Staff Director
                  Evan Schatz, Minority Staff Director
              John Righter, Minority Deputy Staff Director

                                  (ii)

  























                            C O N T E N T S

                               __________

                               STATEMENTS

                        WEDNESDAY, JUNE 29, 2016

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Murray, Hon. Patty, a U.S. Senator from the State of Washington..     4
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming..    15
Murphy, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut....................................................    16
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina.......................................................    18
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    19
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    21
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    23
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas.......    25
Bennet, Hon. Michael F., a U.S. Senator from the State of 
  Colorado.......................................................    27
Collins, Hon. Susan M., a U.S. Senator from the State of Maine...    29
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    31
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska....    32
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................    34

                                Witness

King, John, Secretary, U.S. Department of Education..............     6
    Prepared statement...........................................     8

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Ensuring Equity in ESSA: The Role of N-Size in Subgroup 
      Accountability, by Alliance For Excellent Education........    39
    Response by Secretary King to questions of:
        Senator Alexander........................................    51
        Senator Enzi.............................................    52
        Senator Collins..........................................    53
        Senator Hatch............................................    53
        Senator Sanders..........................................    55
        Senator Warren...........................................    57

                                 (iii)

  

 
  ESSA IMPLEMENTATION: UPDATE FROM THE U.S. SECRETARY OF EDUCATION ON 
                          PROPOSED REGULATIONS

                              ----------                              


                        WEDNESDAY, JUNE 29, 2016

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
430, Dirksen Senate Office Building, Hon. Lamar Alexander, 
chairman of the committee, presiding.
    Present: Senators Alexander, Murray, Enzi, Burr, Isakson, 
Murkowski, Collins, Hatch, Roberts, Casey, Franken, Bennet, 
Whitehouse, Murphy, and Warren.

                 Opening Statement of Senator Alexander

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    We have a vote at 10:30. We might have another one after 
that. But I think we can surely get through the opening 
statements, the Secretary's statement. And I think Senator 
Murray and I can get through our questions.
    What I will do is I'll try to go vote early and then I'll 
come back, and in the meantime we'll continue the hearing so 
all Senators will have a chance to use their 5 minutes and ask 
their questions.
    This morning we have a hearing on oversight of the Every 
Student Succeeds Act. Senator Murray and I will each have an 
opening statement, and then we'll introduce our witness, the 
U.S. Secretary of Education, John King.
    Secretary King, welcome. We're glad that you're here.
    This is our fourth oversight hearing on the Every Student 
Succeeds Act. Secretary King, you and I have had some debate on 
the meaning of words in the law, some discussion about it. It 
reminded me of Lewis Carroll's book, ``Through the Looking 
Glass,'' when Humpty Dumpty said, ``When I use a word, it means 
just what I choose it to mean, neither more nor less.'' Like 
Humpty Dumpty, we choose our words carefully, and we did when 
we wrote the law fixing No Child Left Behind.
    We held 24 hearings between 2007 and 2014. In 2015, we had 
three hearings. There were 58 amendments, many other 
amendments. The words we used were debated, carefully and 
deliberately chosen. We meant for the words to mean what they 
say, nothing more, nothing less. That, of course, is our job. 
The Constitution settled that a long time ago. An elected 
Congress chooses the words to make the laws. It's the 
Executive's job to implement the law in a way that's consistent 
with the meaning of those words.
    Let me give you an example of doing that properly. When I 
had your job 25 years ago, in 1992, Congress did something I 
very much disagreed with. It passed legislation adopting a 
pilot direct loan program. I had argued that the Department of 
Education had no business being a bank for millions of 
students. There were far too many problems, risks and costs, 
but Congress disagreed. It passed the legislation. The 
President signed it and adopted a pilot direct loan program.
    After the President signed the bill, I had about as much 
time left in my term as you do in yours this year, and it was 
my job to start implementing the law Congress passed with which 
I disagreed. So, I did it, and I faithfully followed the words, 
and I asked all the universities whether they would like to be 
a part of the pilot program, and over time eventually about 25 
percent did. I implemented the law the way Congress wrote it.
    Let me give you an example of how I think the Secretary of 
Education should not respond when implementing a law Congress 
has written. I'm not going to dwell on it because you and I 
have discussed it, and we did again this week. But it's the 
proposed ``supplement, not supplant'' regulation that was 
rejected by a negotiating rulemaking committee. It's a very 
simple provision. It simply says Federal title I dollars that 
go to local school districts are not meant to replace State and 
local dollars for schools. We give title I money to a school, a 
school district has to show the school is getting the same 
amount of State and local dollars it would receive without 
title I money.
    One witness testified at the last hearing the law was so 
plain that there didn't even need to be a regulation, but 
you've come up with a proposal that forces school districts to 
show they essentially equalized spending of their State and 
local dollars among title I and non-title I schools, although 
the new law, in section 1605, explicitly prohibits exactly 
that. According to the Congressional Research Service, the 
proposed regulation ``appears to go beyond what would be 
required under a plain language reading of the statute.'' The 
proposal is so far out of bounds--these are my words--that I'm 
assuming any regulation, if there even needs to be one, will 
bear no resemblance to the proposal you've drafted.
    But let's talk today about the accountability rule that the 
Department proposed on May 31st. This goes to the heart of the 
law to fix No Child Left Behind. In our studies, we heard more 
about testing than any other subject. I even at first proposed 
we eliminate the federally mandated tests. But the more we got 
into it, the more we understood that it wasn't the federally 
required 17 tests that were the problem. It was having the U.S. 
Department of Education make all the decisions about what to do 
about the results of the tests, which is what we call the 
accountability system.
    The Federal Government decided that math and reading test 
results would determine whether schools and teachers were 
succeeding or failing. And I believe that the reason we got 85 
votes in the Senate is because so many were tired--and these 
were teachers, Governors, chief State school officers--of the 
United States Department of Education telling school boards and 
classroom teachers in States so much about what to do with the 
children in their schools.
    I want to make sure that any regulation that your 
Department proposes about accountability is consistent with the 
words we chose and the intent of the bill the President signed. 
You're receiving comments until August 1. You'll consider those 
comments. I look forward to working with you to continue the 
discussions we had this week to ensure that the regulations 
comport with the law.
    Today I'll focus on two main concerns. I'll mention them 
just briefly.
    One is, does the proposed accountability rule actually get 
the Federal Government back in the business of setting State 
academic standards? Senator Roberts asked you about this during 
your confirmation hearing. Under No Child Left Behind, the 
Department, in effect, mandated that States adopt Common Core 
standards. Thirty-eight out of 42 had to in order to receive 
waivers from No Child Left Behind. This new law repealed that 
effective mandate in at least five different specific 
prohibitions. There was nothing unequivocal about it. We also 
changed the law from requiring a State to demonstrate that they 
have adopted challenging standards to say all a State had to do 
was to assure the Secretary that it has adopted those 
standards. We chose our words carefully.
    Your proposal in this regulation says a State must 
``provide evidence at such time and in such a manner specified 
by the Secretary'' that it has adopted these standards. 
Wouldn't this give you the power to reject the standards by 
rejecting the evidence?
    The second area that I want to mention is does the proposed 
accountability rule get the Federal Government back in the 
business of deciding which schools are succeeding or failing? 
It appears to re-institute the failed No Child Left Behind 
formula requiring that math and reading tests be the primary 
measure for deciding whether schools are succeeding or failing. 
You've invented out of whole cloth a so-called summative rating 
system that's nowhere in the law that would essentially require 
all States to come up with an A through F system for all their 
schools based primarily on test scores on federally mandated 
tests in math and reading.
    The whole point of the law was to return to the States 
whether to do that or not. I know that New York City and 
Florida did that, but other States might not want to do it that 
way.
    Senator Murray often talks about the law's guardrails, and 
we agree there should be some guardrails in this law in what 
States must and may not do. But again, we chose our words 
carefully. They were carefully and vigorously negotiated, and 
any regulation must stay within those words. In fact, the law 
also includes some very specific guardrails on the Secretary, 
specific prohibitions.
    For the last 15 years, the Federal Government has gradually 
become, in effect, a national school board. Congress decided 
last year to reverse that trend. The President signed the bill. 
That should put an end to it.
    On August 1, we really come to the end of an era. I call it 
the end of the ``Mother, May I'' era, an era when Governors and 
chief State school officers had to come to Washington to get 
permission to do a number of things about their schools. Those 
conditional waivers are gone. The following mandates are gone 
from No Child Left Behind: the standards mandate, the adequate 
yearly progress mandate, the test-based accountability, the 
school turnaround models, the highly qualified teacher 
requirements, teacher evaluation mandates. Those 
responsibilities have now been restored to States and local 
school boards and classroom teachers.
    Our hope is that this new flexibility will unleash a new 
era of innovation and excellence in student achievement, one 
that recognizes that the path to higher standards, better 
teaching and real accountability is classroom by classroom, 
community by community, and State by State, and not through 
Washington, DC.
    Senator Murray.

                  Opening Statement of Senator Murray

    Senator Murray. Thanks very much, Chairman Alexander.
    Secretary King, thank you for being here today. I look 
forward to today's discussion.
    We are here today, almost 7 months after the President 
signed the Every Student Succeeds Act into law, for another 
update on its implementation. As we have talked about before, 
No Child Left Behind was badly broken. This law fixes it in 
many critical ways. But a law is only as good as its 
implementation, so I'm really glad we're having this discussion 
today.
    I want to kick this off by focusing on two areas, 
accountability and the need for a continued collaboration and 
inclusion as this process continues, and I will have questions 
on a few others.
    First, as I have talked about since before we passed this 
law, ESSA is an extension of one of the most important goals of 
our country, ensuring civil rights and equality of opportunity 
for every child. In order to do that, we need to make sure 
schools and States are held accountable for providing a quality 
education to all of their students, no matter where they live 
or how they learn or how much money their parents make.
    This is critical because we know what happens when we don't 
have true accountability. Inevitably, it's the kids from the 
low-income neighborhoods, kids of color, kids with 
disabilities, and kids learning English who too often fall 
through the cracks. We know we can do better as a country, but 
we also know we're not there yet.
    Secretary King, I appreciate the work you've done here to 
prioritize the regulations focused on implementing the Federal 
guardrails in the law, and I'm very glad to see strong 
regulations coming out that make sure the law operates as it 
was intended and truly accomplishes the clear accountability 
goals we laid out. This is good news for students; I hope it 
continues.
    I am concerned about a few provisions in the draft 
regulations that could derail those efforts; for example, 
allowing States to compare the performance of individual 
subgroups to the average performance of all students in the 
State. ESSA was clear: the performance of every single student 
in every single subgroup matters. But allowing States to 
measure subgroup performance by comparing to the average 
performance of all students could lower the expectation for 
students, because many students could be underperforming, 
driving down the average performance level within a State.
    That's why instead, all student subgroups should be 
expected to meet State standards and academic goals established 
by the State regardless of how they compare to other students 
in the State. I'll have a question on this where we can go into 
more details, but this is something I'm taking a close look at, 
as well as other regulations from the Department for school 
interventions and supports.
    Because the intent of the law is clear, it needs to 
actually help students succeed, and we need strong regulations 
flowing from that goal if we want this law to do what so many 
of us hoped that it will.
    One other issue I want to touch on is the need for 
continued collaboration to encourage and ensure the voices of 
all stakeholders are heard throughout the ESSA implementation 
process. This is so important, but it won't happen on its own. 
It requires the Department to use every available opportunity 
to assist States and school districts, as well as breaking down 
barriers to ensure full participation.
    I am pleased the Department sent a letter to States last 
week highlighting the importance of stakeholder engagement. The 
letter provides helpful suggestions to States to improve 
stakeholder engagement, including holding meetings at varying 
times during the day, providing accommodation and support to 
participants, and ensuring transparency in the process and 
timeline for engaging in the plan development process. Getting 
input from teachers, civil rights groups, parents, and many 
more will be essential in making sure the law works in the 
coming months and years, and that's something I feel very 
passionately about.
    When we were working to pass this law, I worked hard to 
bring in voices of students and those who would be instrumental 
in implementing it, voices from teachers like Lyon Terry in 
Seattle, whose hard work to get his kids excited about coming 
to school was being labeled as failing under our previous 
broken education law; voices from parents like Duncan, whose 
son attends Highland Public Schools, where many of the kids in 
the school district struggle with poverty; and voices from high 
school principals like Laurie Wineberry from Spokane, who 
talked to me about the desperate need for commonsense policies 
for testing in her school. Those were important voices when we 
wrote the law; they are important voices as we implement it.
    I'm very glad the Department is focused on true 
collaboration, and that needs to continue.
    I'm also glad that last week the Department, in 
collaboration with HHS, provided clarity for how States, school 
districts, and child welfare agencies can implement the new 
foster care requirements under ESSA by working together to 
support foster children enhance their educational success.
    This Administration has a little less than 7 months left in 
office, but that's still plenty of time to make progress on 
these and several other key areas, and I'm confident we can. 
I'm confident because all the people I just talked about, Lyon 
and Duncan and Laurie and so many others across this country, 
including many in this room today, who speak out for change and 
empower our Nation's students and schools, inspire me to keep 
fighting. I know this is a priority, not just for the members 
of this committee and the Department but for our entire 
country.
    Secretary King, thank you for being here today. I'm looking 
forward to this hearing to hear more from you and the steps 
you're taking to implement the law so that it works for all of 
our students and what all of us can do to help to make sure 
that happens. Thank you.
    The Chairman. Thank you, Senator Murray.
    Secretary King, you're welcome to make a statement. If you 
could keep it to about 5 minutes, we'd appreciate it. That 
would give the large number of Senators we have here today a 
chance to ask questions.
    Mr. Secretary.

STATEMENT OF JOHN KING, SECRETARY, U.S. DEPARTMENT OF EDUCATION

    Secretary King. Thank you so much. Thank you, Chairman 
Alexander, Ranking Member Murray, and members of the committee. 
I appreciate the invitation to come back before the committee 
and testify today regarding how the Department of Education is 
moving forward with the implementation of the Every Student 
Succeeds Act, which the President signed into law on December 
10, 2015. I am grateful that, thanks to the leadership of 
Chairman Alexander and Ranking Member Murray, as well as the 
members of this committee, Congress acted last year to 
reauthorize this critical piece of legislation.
    Over the past 7\1/2\ years, thanks to hard-working 
educators supported by families, our schools and students have 
made tremendous strides. The high school graduation rate is at 
a record high, and schools in 49 States are helping students 
meet college-and-career-ready standards and assessing their 
progress. More States also are investing more money and helping 
to ensure children are ready to succeed when they enter 
kindergarten, increasing their spending on early learning by 
$1.5 billion over the past 3 years. And yet, so much work 
remains.
    Far too many students from every background still arrive at 
college needing remedial classes, and Black and Hispanic 
students continue to lag behind their White peers in 
achievement and graduation rates. The latest figures from our 
Civil Rights Data Collection illustrate in powerful and 
troubling ways the disparities in opportunity and experience 
for different groups of students in our schools.
    Just a few statistics. Students with disabilities are more 
than twice as likely as students without disabilities to be 
suspended. Schools with high concentrations of Black and Latino 
students are less likely to offer advanced courses such as 
calculus and physics, which also are critical for success in 
college. One out of every five high school students who are 
English learners is chronically absent. These are the very 
children that the Elementary and Secondary Education Act of 
1965, as most recently amended by ESSA, was designed to protect 
and serve.
    The good news is that ESSA provides local communities and 
States a pathway toward excellence and equity for all students, 
as well as tools that will help them get there. Using the 
greater flexibility in ESSA, States will be able to go beyond 
test scores in math and English by adding their own indicators 
of school quality and progress to ensure a rigorous, well-
rounded education for every student.
    We know that strong literacy and math skills are necessary 
for success in college, careers, and life, but they are not 
sufficient. Importantly, a rich, rigorous, well-rounded 
education helps our children make critical connections among 
what they're learning in school, their curiosities, their 
passions, and the skills they will need to become the 
sophisticated thinkers and leaders who will solve the most 
pressing challenges facing our communities, our country, and 
our world.
    Understanding that this work requires all of us working 
together, States are expected to involve local educators, 
parents, civil rights groups, business leaders, tribal 
officials, and other stakeholders in choosing other indicators 
of quality such as decreases in chronic absenteeism or 
increases in the number of students taking and passing advanced 
classes.
    The legislation also includes critical protections and 
provides additional resources for our traditionally underserved 
students such as students of color, students from low-income 
families, students with disabilities, students learning 
English, Native American students, foster and homeless youth, 
and migrant and seasonal farm worker children.
    States must take meaningful action to improve schools where 
students or groups of students are struggling, and in high 
schools that have low graduation rates year after year. But the 
flexibility of the law also allows them to tailor these 
interventions to schools' specific needs. As with all 
legislation and policy, the quality and fidelity of their 
implementation are critical to success. Please allow me to 
update you quickly on our progress toward helping States 
implement this law fully and faithfully.
    The first thing we did was listen. To date, we've convened 
over 200 meetings with stakeholders across the country. These 
included dozens of meetings with educators and school leaders 
in rural, urban, and suburban communities. We posted a notice 
seeking public comment on areas in need of regulation and 
requested feedback on areas in need of guidance. We received 
hundreds of comments.
    In response, we prioritized accountability, including data 
reporting and State plans, assessments under title I, parts A 
and B, and title I's requirement that Federal dollars 
supplement, not supplant, State and local funds for education.
    As you know, this past spring we engaged in negotiated 
rulemaking. The negotiators were able to reach consensus on 
assessment, and we will move forward with publishing those 
regulations for comment. The negotiators were not able to reach 
consensus on supplement, not supplant, but we have gotten a lot 
of important feedback and will continue to listen to that 
feedback.
    Last month we issued our proposed rulemaking on 
accountability, State plans, and data reporting. It was 
published in the Federal Register on May 31st, and we will 
continue to receive comment through August 1st. We encourage 
comment on these proposed regulations and look forward to 
responding to that comment.
    Consistent with the strong civil rights legacy of the law, 
the proposed regulations ensure a focus on all students, 
including historically underserved subgroups of students and 
accountability decisions. They ensure that meaningful action is 
taken to improve the lowest-performing schools, with families, 
educators, and stakeholders playing an important role in the 
process. They also ensure that educators, students and families 
have an accurate picture of students' academic performance.
    We've also committed to issue guidance in several key areas 
based on the feedback we've received. We already recently 
issued guidance around foster youth. We will soon issue 
guidance related to homeless youth, as well as English 
learners, and after that on title II, title IV, and early 
learning. As we issue that guidance, we are guided by the many 
comments we've received, looking for technical assistance and 
support, and we will continue to take comment from stakeholders 
in other areas where guidance may be helpful.
    In conclusion, ESSA is a bipartisan achievement that 
provides the statutory foundation to close our remaining gaps 
and address our persistent inequities. I have appreciated 
hearing many of your thoughts on implementation of the law so 
far and look forward to hearing from you today. We take your 
feedback and all feedback we receive very seriously. I look 
forward to continuing to work with you to ensure high-quality 
implementation of this law supported by the Department that 
guarantees a world-class education for every child.
    Thank you. I'm happy to take any questions you may have.
    [The prepared statement of Secretary King follows:]
               Prepared Statement of Secretary John King
    Thank you Chairman Alexander, Ranking Member Murray, and members of 
the committee. I appreciate the invitation to come back before this 
committee and testify today regarding how the Department of Education 
is moving forward with the implementation of the Every Student Succeeds 
Act (ESSA), which the President signed into law on December 10, 2015. I 
am grateful that, thanks to the leadership of Chairman Alexander and 
Ranking Member Murray, and the members of this committee, Congress 
acted last year to reauthorize this critical piece of legislation.
    Over the past 7 years, our schools and students have made 
tremendous strides. Our Nation's high school graduation rate is at a 
record high 82 percent, in part due to significant gains by 
historically underserved student groups. Forty-nine States and the 
District of Columbia have adopted and are implementing rigorous, 
college-and-career-ready standards and aligned assessments for all 
students. In the last 3 years alone, since the President's call to 
action on preschool for all, 38 States and the District of Columbia 
have increased their public pre-school investments for 4 year olds by 
more than $1.5 billion. When the President made that call to action, 11 
States did not offer preschool. Now all but four States do. Between 
2008 and 2013, there was a nearly 30 percent reduction in the number of 
students who did not graduate on time and college enrollment for Black 
and Hispanic students is up by more than a million.
    Yet so much work remains. Far too many students from every 
background still arrive at college needing remedial classes. And 
pernicious gaps remain for students who have been underserved for 
generations. Black and Hispanic students continue to lag behind their 
White peers in achievement and graduation rates. Our recent Civil 
Rights Data Collection (CRDC) release illustrates, in powerful and 
troubling ways, the disparities in opportunities and experiences that 
different groups of students have in our schools. Students with 
disabilities are more than twice as likely as students without 
disabilities to be suspended. Black and Latino students participate at 
lower rates in gifted and talented education programs. Schools with 
high concentrations of Black and Latino students are less likely to 
offer advanced courses, such as calculus and physics. One out of every 
five English Learner and more than a quarter of Native American high 
school students is chronically absent. These are the very children that 
the Elementary and Secondary Education Act of 1965, as most recently 
amended by ESSA, was designed to protect and serve.
    ESSA advances equity by upholding critical protections for 
America's disadvantaged students. The law maintains resources and 
supports for students from low-income families; students with 
disabilities; English Learners; Native American students; foster and 
homeless youth; neglected, delinquent, or at-risk youth; and migrant 
and seasonal farmworker children. ESSA requires that all students be 
taught to rigorous college-and-career-ready academic standards and that 
vital information about their progress and performance be shared with 
educators, families, students, and communities on an annual basis, 
through statewide assessments. For the first time, the law asks States 
to consider the progress of all of their English Learners toward 
English Language Acquisition in the context of their title I plans. 
ESSA also encourages a smarter approach to testing. Our Administration 
is pleased that ESSA includes provisions consistent with President 
Obama's Testing Action Plan, which put forward principles for reducing 
the amount of classroom time spent on unnecessary standardized testing, 
encouraging States to limit the amount of time devoted to these 
assessments and supporting efforts to audit, streamline and improve 
assessments at the State and local levels.
    Through this law, Congress has reinforced the Federal commitment to 
holding ourselves accountable for the progress of all students while 
establishing a new, improved Federal-State partnership that moves away 
from the one-size-fits-all approach of No Child Left Behind (NCLB) and 
its overemphasis on testing as the only means of assessing how schools 
and students are doing. ESSA builds on the work already underway in 
States to develop their own strong State systems for school 
improvement. And it maintains the expectation of meaningful action to 
support students in schools where students or groups of students are 
struggling--and, in high schools that have low graduation rates year 
after year.
    ESSA also provides local communities and States with a pathway 
toward equity and excellence for all students, by reclaiming the goal 
of a well-rounded education for all students. Using the greater 
flexibility in ESSA, States will be able to go beyond test scores in 
Mathematics and English Language Arts by adding their own indicators of 
school quality and progress, to ensure a rigorous, well-rounded 
education for every student. We know that strong math and literacy 
skills are necessary for success in college, careers, and life--but 
they are not sufficient. That may mean States measuring how students--
particularly historically underrepresented subgroups of students--are 
doing in Advanced Placement and International Baccalaureate courses, or 
whether they have access to rigorous coursework like physics or 
computer science. It may mean States taking a closer look at chronic 
absenteeism, post-secondary enrollment, placement in remedial college 
coursework, or socioemotional development as additional measures of how 
schools are serving all students.
    The possibilities are expansive, but their real-world impact for 
children will depend on implementation. A rich, well-rounded education 
helps our children make critical connections among what they're 
learning in school, and their curiosities, their passions, and the 
skills they will need to become the sophisticated thinkers and leaders 
who will solve the most pressing challenges facing our communities, our 
country, and the world.
    As a parent of children in public school, and a former teacher, 
principal, and State education commissioner, I can tell you that the 
prospect of a new law of this magnitude is both exciting and daunting. 
There is an incredible amount of work to be done at all levels to 
implement the law. ESSA represents a significant departure from NCLB in 
many ways. There are new opportunities, such as the Innovative 
Assessment Demonstration Authority, and new requirements, including the 
requirement to publicly report per-pupil expenditure data. The law 
rightly shifts more authority to States and also expects more of them--
from developing and incorporating new indicators beyond test scores and 
graduation rates into their accountability systems to building the 
infrastructure for meaningful stakeholder consultation and engagement.
    Since the bill was signed into law, we have been listening to the 
many stakeholders who care about implementation. We met with teachers 
and principals and their representatives, State and school district 
leaders, tribal officials, parents, civil rights leaders, and many 
others to hear their questions and concerns and identify areas in which 
regulations, guidance, or technical assistance might be most needed. We 
posted a notice seeking public comment on areas in need of regulation 
in the Federal Register, and also requested feedback on areas in need 
of guidance. We received hundreds of comments. All told, we held over 
200 meetings with stakeholders across the country. And our outreach 
continues.
    In response to that feedback, we announced our intention to 
regulate in a few key areas: accountability (including data reporting) 
and State plans, assessments under title I, parts A and B, and title 
I's requirement that Federal dollars supplement, not supplant, State 
and local funds.
    As required by statute, for the title I, part A assessment and 
supplement, not supplant regulations, we engaged in negotiated 
rulemaking in late March and early April. Through that process, we were 
able to gather a lot of good input and feedback, and reached consensus 
on assessments, but not supplement, not supplant. For title I, part A 
assessment regulations, the consensus-based language will be reflected 
in the notice of proposed rulemaking that we will publish later this 
year. For supplement, not supplant, we are considering how best to 
address the feedback we received from a wide variety of stakeholders 
and carefully considering how best to meet the objective behind this 
proposed regulation.
    Our notice of proposed rulemaking (NPRM) on accountability, State 
plans, and data reporting was published in the Federal Register on May 
31 for a 60-day public comment period concluding on August 1. We 
welcome comment from all quarters on these proposed regulations--
including from members of this committee. In addition, the NPRM 
contains several directed questions on which the Department is seeking 
particular input. As always, we know the regulations will be improved 
through public input, and we look forward to receiving feedback.
    One of our top priorities in the proposed regulations was to 
guarantee a meaningful role for stakeholders in the development of each 
State's vision for its educational system. It is important that the 
input and perspectives of parents, teachers, principals, civil rights 
and community leaders, and other State and local education and 
community leaders be reflected in both the initial development and the 
ongoing implementation of State plans under ESSA, especially as State 
and local leaders shape new school accountability systems under the 
law.
    Our proposed regulations on accountability create flexibility for 
States to create their own vision of an excellent, well-rounded 
education, and add their own indicators of school quality or student 
success to include in their accountability systems, such as chronic 
absenteeism or access to and success in advanced courses. States have 
flexibility to choose these indicators, as long as they can be measured 
by subgroup, meaningfully differentiate among schools, and demonstrate 
that they are related to academic achievement or graduation rates.
    Consistent with the strong civil rights legacy of the law, the 
proposed regulations ensure a focus on all students and historically 
underserved subgroups of students in accountability decisions, and 
provide safeguards to ensure that all students have an accurate measure 
of their academic performance, and that parents and communities are 
informed when students are falling behind. And the proposed regulations 
confirm that public charter schools must be included in State 
accountability systems.
    The proposed regulations ensure that meaningful action is taken to 
improve student outcomes in the lowest-performing 5 percent of schools, 
in schools that fail to graduate at least two-thirds of their students, 
and in schools where a subgroup of students is consistently 
underperforming or chronically low-performing. At the same time, the 
regulations build on the new law's flexibility around school 
improvement and intervention and support locally designed solutions to 
improve struggling schools, and provide a clear role for parents, 
families, educators, and stakeholders to meaningfully participate in 
the implementation process. These strategies must be evidence-based 
and, as a part of determining how to improve their lowest-performing 
schools, districts must look at resource inequities.
    The proposed regulations ensure that parents, educators, and 
community members have key information about how schools and students 
are performing and being supported, providing clear and transparent 
data on report cards on critical measures of student success, school 
quality, and resource equity--including per pupil expenditures, and 
enrollment in post-secondary education. And in order to ensure that 
parents and students have a clear sense of how their schools are 
performing, the proposed regulations require a comprehensive summative 
rating for each school based on the State-designed system of 
indicators.
    Finally, the proposed regulations encourage States to think 
comprehensively across their programs about how to support student 
success, and streamline requirements, through their submission of 
consolidated State plans. As a former State chief, I know how important 
it is not to think about these programs as separate silos, and instead 
to think holistically about the best ways to spend Federal funds.
    In April, I announced that the Department would be issuing non-
regulatory guidance on several key topics: students in foster care, 
homeless students, and English Learners. Each of these topics was 
raised frequently in our stakeholder outreach. I am happy to report 
that last Thursday we released the first of those three--Ensuring 
Educational Stability for Children in Foster Care--and plan to issue 
guidance to support homeless students and English Learners at the end 
of the summer or early fall. The Department is also working on guidance 
to support States and districts as they implement title II, title IV, 
and the provisions in ESSA around early learning. Our aim with these 
guidance documents will be to highlight examples and best practices as 
States and districts make use of some of the new funding opportunities 
in the law. These guidance documents are designed to help States and 
school districts understand their options and share what the Department 
has learned about what works across the country.
    Last week's guidance addresses concerns specifically related to 
students in foster care, who are more likely to lag in academic 
achievement or be retained in grade, and less likely to graduate high 
school, than their peers. An important contributing factor is the high 
mobility of these children, which often causes unplanned school changes 
and slowed academic progress.
    To address these concerns, ESSA added important new protections for 
children in foster care to promote greater educational stability and 
improved educational outcomes overall. Our guidance on these ESSA 
foster care provisions, released jointly with the Department of Health 
and Human Services, clarifies the new statutory requirements regarding 
children in foster care, promotes greater collaboration between State 
educational agencies, local educational agencies, and child welfare 
agencies, and highlights promising examples to help guide 
implementation. We hope that this guidance, developed with the input of 
a diverse group of stakeholders, will be a helpful tool that equips the 
field to successfully implement the new foster care provisions under 
ESSA and to improve supports for children in foster care more 
generally.
    We are continuing to engage with stakeholders to identify 
additional areas where guidance and technical assistance may be useful. 
Our goal is a Federal-State partnership that will support local school 
districts and their schools in helping every student succeed.
    As I noted at the beginning of my remarks, we have made incredible 
progress as a nation over the past several years, but there is more to 
be done. ESSA is a bipartisan achievement that provides the statutory 
foundation to close our remaining gaps and address our persistent 
inequities. I have appreciated hearing many committee members' thoughts 
on our implementation of the law so far, and look forward to hearing 
from you today. I take your feedback, and all the feedback we receive, 
very seriously. I look forward to continuing to work with you to ensure 
a high-quality implementation of this law, supported by the Department, 
so that we can ensure a world-class education for every child.
    Thank you. I am happy to answer any questions that you have.

    The Chairman. Thank you, Mr. Secretary.
    We will begin a round of questions now.
    Mr. Secretary, my goal would be that the country feels the 
same way about this new law at the end of this year as it did 
at the end of last year. I think there was a good deal of 
literal rejoicing that we had achieved a consensus in a complex 
area that affected so many millions of American families and 
brought some stability to elementary and secondary education 
policy. I'm hopeful that after the regulations are finally 
done, that we'll still feel the same way.
    In that spirit, let me continue a conversation you and I 
were having, and I only have 5 minutes, so I want to get in two 
or three questions. When we wrote the law, we envisioned that 
States would have time to plan for the transition to the law. 
You've heard and we've heard some States say that your proposed 
regulation doesn't permit a State to do this.
    Let me ask you if what I'm about to describe would be an 
appropriate timeline for a State, in your view, that States 
would develop and implement their new accountability systems 
during the school year that begins in 2017 and 2018. That's 
next year. That means they would be collecting data in that 
year. Then in the following year, 2018-19, they would be 
identifying new schools in need of improvement. That would 
leave the year coming up, 2016-17, as a transition year during 
which I would assume that States would continue to work with 
their already identified schools, although some States might 
want to move more rapidly.
    Does that schedule--would your proposed regulation allow 
that sort of schedule?
    Secretary King. I appreciate the question. Our goal is to 
make sure that as the committee has developed this law, that we 
focus on trying to expand the definition of educational 
excellence, giving States the opportunity to add indicators 
alongside English and math performance and graduation rates. We 
want States to move as quickly as they can on that.
    The Chairman. Right.
    Secretary King. The timeline assumes that, yes, 2016-17 
would be a transition year and that States would continue 
intervention in their previously identified schools.
    The Chairman. Right.
    Secretary King. The timeline in the current draft 
regulations on which we are seeking comments anticipates that 
States would implement their new accountability system in 2017-
18 and address the needs of schools identified in that 
accountability system in 2017-18. That said, we've heard 
feedback from States that some States would like the ability to 
carry over the schools in which they are intervening from 2016-
17 into 2017-18. That's feedback that we're open to and will 
continue to listen closely to comment.
    The Chairman. Just so I understand, what I said was that a 
State would collect the data and develop its new accountability 
system in 2017-18, and then begin to identify the schools in 
2018-19.
    Secretary King. Yes, understood. Under the current 
regulations, that would not be. The interventions would begin 
in 2017-18. But as I said earlier this week and will emphasize 
again, we are open to comment on the timeline and open to 
adjusting that timeline.
    The key question that States will need to address as they 
provide comment is in which schools will they provide 
additional support in 2017-18? Would that be the same schools 
as in 2016-17?
    The Chairman. So I'll have time for one more question, let 
me strongly urge you to make clear to schools as quickly as 
possible that if they choose to, they could implement their new 
accountability systems in 2017-18, and then they could identify 
new schools under that system in the following year, 2018-19, 
if they choose to do that.
    May I move on to one other question? Your proposed 
regulation requires that all schools receive a single summative 
rating based on a State's accountability system. An A to F 
rating system might be a good idea for some States, but in 
other States it's been widely criticized. New York City is 
moving away from using an A to F system. And furthermore, the 
law prohibits the Secretary from ``prescribing the specific 
methodology used by States to meaningfully differentiate or 
identify schools.''
    I don't see anywhere within the law the words ``single 
summative rating,'' and how do you justify a proposed 
regulation requiring such a rating in light of the prohibition 
that was specifically in the law that the President signed in 
December?
    Secretary King. The key is that parents, educators, 
communities have clear information about the performance of 
schools. We do not require in the regulations the use of an A 
through F rating.
    The Chairman. A single summative rating.
    Secretary King. States could take a variety of approaches 
to a single summative rating. They could use an A through F 
system if they so chose. They could use a numerical index if 
they so chose. Or they could use a categorical system, which 
actually is required in the statute. States will have to 
identify schools for comprehensive improvement, comprehensive 
support. In order to do that, they will need a summative rating 
to achieve that status. Similarly, States will need to have 
schools that get targeted support. That, too, is a categorical 
rating. And then there would be schools that would get neither 
comprehensive nor targeted support, and that too is a 
categorical rating.
    All we require is that they have some methodology by which 
they can identify those schools and clearly communicate about 
the performance of their schools with the public.
    The Chairman. My time is up. But I would like you to think 
about where in the law you get the authority to provide for a 
single summative rating.
    Senator Murray.
    Senator Murray. Thank you, Mr. Chairman.
    The Chairman. May I--not taking time off of you, I think I 
will go vote, if I may, and leave you in charge of the 
committee, and I'll come right back.
    Senator Murray [presiding]. OK, do that.
    Mr. Chairman, before I begin my round of questions, I want 
to echo the concerns that were voiced about the timeline for 
identifying the schools for improvement.
    Like the Chairman, I have heard from stakeholders that 
States may not have their new accountability systems in place 
by the beginning of the 2017-18 school year, and as a result 
States would have to identify schools based on old data from 
systems designed before ESSA was actually signed into law, and 
that's deeply concerning to teachers and parents in my State 
and around the country. I hope, as your Department works on the 
final regulation, you'll address that very real issue for our 
States and our schools.
    On the questions, I really worked hard to make sure that 
ESSA requires schools to receive supports and interventions 
where any group of students is consistently underperforming. 
However, I'm very concerned that the draft rule weakens that 
requirement by allowing States to compare the performance of 
subgroups of students to other students who may also be 
underperforming rather than requiring States to ensure each 
individual subgroup of students makes sufficient academic 
progress on their own.
    In practice, that could mean that a school could have a 
group of students--say, students with disabilities--missing 
their State-set goals for many years and not receiving the 
support which is so important that they need to improve, as 
required by ESSA. How do you square that proposal in the 
regulation with the requirements of the law?
    Secretary King. Yes. We think it's very important that 
States and districts are focused on their schools where 
subgroups are underperforming. The regulations create 
parameters for States to develop their systems for identifying 
those schools that need targeted support for underperforming 
subgroups and provides options that States could use a system 
that relies on goals and targets. States could use a system 
that relies on the gap between subgroups and the highest 
achieving subgroup, for example. But States ultimately would 
have to identify those schools where they have struggling 
subgroups, and also would have to identify those schools where 
the struggling subgroups are struggling at a level that's 
consistent with the bottom 5 percent of schools as well.
    But this is a place, again, where we're open to feedback, 
and certainly there are contrasting views on what the 
parameters for State subgroup, targeted subgroup identification 
should be, and we're open to feedback on that.
    Senator Murray. OK. I just want to make sure they get the 
resources they need, and if we're not identifying them, they 
won't.
    On another issue, I'm very concerned that my home State of 
Washington is facing a homelessness crisis. We have school 
districts like Everett where the number of homeless students 
has risen to almost 1,000. McKinney-Vento liaisons are 
struggling now to meet the increased needs of homeless children 
and families, and that has been a goal of mine for a very long 
time, to make sure we meet their needs.
    ESSA makes a number of changes designed to increase the 
capacity of liaisons to identify and support homeless children 
so that they can succeed in school. How is your Department 
planning to make sure that these changes are implemented 
effectively?
    Secretary King. I share your commitment to addressing the 
needs of homeless students. We've been holding conversations 
with students who have been homeless with advocacy groups to 
try to develop our guidance to implement the provisions of the 
new law regarding homeless students, and we expect to issue 
that guidance shortly this summer.
    Senator Murray. OK, I'll be looking for that.
    I wanted to ask you about the preschool, which, as you 
know, is a priority of mine. ESSA includes new policies to 
encourage our States and districts and schools to use money for 
preschool programs. I'm very proud that my home State of 
Washington is leading the way when it comes to using this 
funding for preschool. Bremerton School District uses their 
title I money to raise the quality of child care so that kids 
are prepared to learn when they start kindergarten.
    How is your administration planning to get the word out 
about these new provisions and help States leverage their ESSA 
funding to improve access to high-quality early learning?
    Secretary King. We think the commitment to preschool is one 
of the signature achievements of ESSA. We are working with 
Health and Human Services on an MOU around continued 
implementation of the Preschool Development Grant Program and 
its new form in ESSA, and we are working on guidance on early 
learning that will focus on best practices and examples of 
approaches just like the one you're describing, where States 
may use their title I dollars or school improvement dollars to 
focus on expanding access to preschool for students most in 
need.
    Senator Murray. OK. And finally, I'm hearing a lot about 
teacher shortages in my State, particularly special education, 
teachers of English learners, STEM teachers. In ESSA, we 
rewrote title II dealing with teachers to improve that. I 
wanted to ask you, how is the Department planning to make sure 
that States and districts know about the new tools in ESSA? 
Because we are facing this crisis.
    Secretary King. I'm proud to say States are doing, I think, 
some good work in this area through the equity plans that were 
developed under NCLB and that are continued under ESSA. There's 
an opportunity for States to refine those equity plans. We also 
are developing guidance on title II that we expect to issue 
later this year that will help point States toward the 
available resources and to some examples of best practice. And 
as you know, the President has also made additional proposals 
in the 2017 budget around these kinds of teacher shortage 
issues, including strengthening teacher loan forgiveness and 
the Best Job in the World initiative, which would focus on 
recruiting great teachers to high-need schools.
    Senator Murray. OK, very much appreciate that.
    Senator Enzi.

                       Statement of Senator Enzi

    Senator Enzi. Thank you, Senator Murray. I appreciate this 
hearing, and thank you for being here, Mr. Secretary.
    You and I had a phone conversation prior to your HELP 
Committee confirmation hearing in which you kind of conveyed to 
me that you didn't intend to follow the Every Student Succeeds 
Act as it's written. That led me to vote against your 
confirmation. An example is Section 8205 of the bipartisan law 
states that the Secretary must identify the Department of 
Education positions that are no longer required due to the 
elimination of programs and subsequent shift of authority back 
to the States. That law requires the Secretary to, not later 
than 1 year after such date of enactment, reduce the workforce 
of the Department by the number of full-time equivalent 
employees the Department identified.
    When I asked you if you were on track to reduce the number 
of positions at the Department of Education within 1 year, you 
stated to me that you were going to move those positions to 
other areas within the Department. So I wrote you a letter 
after that conversation asking you to clarify your answer. I 
had to wait 3\1/2\ months for a response from you to that 
letter, and I only got it yesterday afternoon. I hope we don't 
have to have a hearing any time we want to get a late response 
from you, and I'd like to know if you're on track to reduce the 
number of positions within the Department of Education per the 
statutory requirements that none of us voted against and that 
was signed into law by President Obama.
    We all agreed to reduce the size of the Department of 
Education. It's the law. Will you do so?
    Secretary King. To be clear, we will certainly follow the 
statute. The programs that we discussed in our call that 
existed in 2015 were funded through the appropriations process 
in 2016. Those programs continue, and the employees associated 
with those programs continue to do that work. As programs are 
phased out through the appropriations process and the close-out 
process is completed for those programs, yes, those positions 
would be eliminated. We talked about the individuals, the 
incumbents in those positions, and I said I thought it was 
likely that some of those people would pursue other positions, 
available positions within the Department.
    If there are programs that are eliminated, then those staff 
positions will not be needed. Virtually every program that 
existed in 2015 was funded through the appropriations process 
for 2016.
    Senator Enzi. In the Senate there are distinctly different 
jobs. The appropriators get to set the maximum amount of money 
that you can do. The authorizers set what you can do. That law 
is very clear as it's written, and we worked on this 
reauthorization for many years, and I think we finally got it 
to where it needs to be. We're not rewriting it, and I expect 
that you won't do it as well. I'd encourage you to answer all 
congressional inquiries within a timely manner and actually 
have the inquiry come from you. I haven't gotten anything from 
you yet. I've gotten it from some assistants, and I had to wait 
over 3 months for a response to that letter I wrote allowing 
you an opportunity to clarify an answer that troubled me.
    There are two other letters that were sent by Senator 
Alexander and I, and again those letters are answered by 
subordinates. I appreciate the response from your staff, but 
when I write to you, I expect to hear from you. Because we're 
doing a vote, I won't take a lot of time. I've got two more 
very important questions that I think are a part of the law 
that I will submit, so I yield the balance of my time.
    Senator Murray. Senator Murphy. Senator Murphy, I believe 
Senator Alexander should be back by the time you finish as 
well.

                      Statement of Senator Murphy

    Senator Murphy. OK. Thank you very much, Senator Murray.
    Welcome back, Secretary King. Thank you very much for being 
so available to us, making frequent visits before the 
committee. I know how important this is to you, and you know 
how important it is to us.
    I want to talk to you about the accountability regulations, 
and in particular I wanted to ask you two questions, one about 
the regulations around N size, which for members here that 
don't know is the terminology we use to determine the size of 
the subgroups that are counted for accountability purposes, 
then I want to ask you a second question on how we measure the 
performance of the subgroups.
    As many of us have said over and over and over again, ESSA 
is fundamentally a civil rights law. There's no reason for the 
U.S. Congress to be involved in the business of local education 
unless we are in the business of making sure that this is a 
basket of civil rights protections. We made very clear in the 
law that we wanted schools to have specific, targeted 
interventions for what we call subgroups. These are populations 
of poor students or disabled students or minority students. But 
we also specifically said in the law that Congress wasn't going 
to dictate, nor was the Administration going to dictate, how 
big these subgroups would be. But clearly, there is a number 
that is in violation of both, I would argue, the spirit and the 
letter of the law. If you had a subgroup that was 100 students 
large and anything under 100 students didn't count as a 
subgroup, then you wouldn't be in compliance with the law.
    Rightfully, the regulations, true to the law, not stating a 
particular number, say that if your number is 30 or higher, you 
have to explain why. And the reason for that is that if every 
State pegs their number at 30 or higher, then one out of every 
five disabled students, for instance, in this country won't be 
subject to any accountability standards.
    I wanted to ask you about why you picked this number 30, 
because I think there's a lot of us who are concerned that that 
number is too high; that, in fact, there are 29 States today 
that have N sizes that are under 30 that under this regulation 
might consider moving that number up.
    Just talk to me about this issue of why you picked 30. Many 
of us are very concerned that if that becomes the new normal 
and any minority student or poor student who is in a school and 
there's less than 30 of them, they won't be counted, that 
leaves a lot of kids outside of the accountability system. Talk 
to me about that.
    Secretary King. As you indicated, the law preserves the 
ability for States to set the N size, but we wanted to make 
sure that there were thoughtful parameters as States think 
about what N size to use. We require them, as you said, to 
provide a justification if they are going over 30. We did that 
based on research evidence. There was an IES study that showed 
that for students with disabilities, if you set the N size 
above 30, you would only get to about 32 percent of students 
with disabilities. But if you set it at 30 or lower, you would 
get to 79 percent of students with disabilities potentially 
being identified within subgroups in schools.
    That's how we came up with 30. But the idea is that States 
would give their explanation in their State plan, and that 
would be subject to peer review.
    Senator Murphy. How about the second question about the 
accountability regimes? You've allowed for a multitude of 
factors to be built into accountability standards, but I'm 
concerned that there could be States that use standards that 
don't necessarily tell the true story about how students are 
performing.
    For instance, in my State, we've got pretty high graduation 
rates, but we have pretty low proficiency rates in math and 
reading. For instance, 58 percent of African American high 
school students are proficient in reading, and yet they have a 
graduation rate of 80 percent. If you use graduation rates, 
then you're not really seeing the underlying story, in part 
because you've got things like social promotion that pushes 
kids out the door.
    What are the tools at the Department's disposal to make 
sure that these accountability systems are actually capturing 
the true performance of students?
    Secretary King. The statute really gives States the 
responsibility to design their accountability systems, as you 
know, but also says that the academic indicators need to have 
substantial weight and much greater weight than the non-
academic indicators. We've tried to structure the State plan 
process so that the peers will evaluate whether or not States 
have indeed complied with that substantial weight requirement 
and much greater weight requirement by ensuring that schools 
where students aren't making academic progress continue to get 
the comprehensive support that they need to improve performance 
for students, that schools that are getting targeted support 
because of subgroup under-performance actually see meaningful 
improvement in the academic performance of those subgroups.
    We've tried to balance both State flexibility with civil 
rights guardrails to make sure that States really are paying 
attention to the kids who are most at risk.
    Senator Murphy. I ask these questions to make the committee 
aware there are a lot of us that were very involved in these 
accountability regulations who frankly don't think they go far 
enough. To the extent that in this city you know you've done 
something right when both sides aren't happy, I know there are 
many that think some aspects of the regulations go too far, 
there are many of us who think that they could have gone much 
farther, and I appreciate you taking concerns from both sides.
    Just a last thing, Mr. Chairman. Some of the data that I 
was referring to was in a study called Ensuring Equity in ESSA: 
The Role of N-Size in Subgroup Accountability, from the 
Alliance for Excellence in Education. I ask to enter this into 
the record.
    The Chairman. [Presiding] Thank you. It will be, Senator 
Murphy.
    Senator Murphy. Thank you, Senator.

    [The information referred to can be found in additional 
material, and online at https://www.all4ed.org.]

    The Chairman. Senator Burr

                       Statement of Senator Burr

    Senator Burr. Thank you.
    Mr. Secretary, I'll be brief because of the vote.
    Why does the Federal Department of Education not trust 
local schools to solve problems in their own school systems?
    Secretary King. We do trust State and local flexibility. At 
the same time, we know there's a long history in this country 
of States and districts not----
    Senator Burr. So the fact that we passed legislation that 
reinforced their local flexibility, you don't buy that.
    Secretary King. We think that local flexibility is 
important, but we also think the law importantly preserves 
civil rights guardrails that are essential.
    Senator Burr. Mr. Secretary, have you ever been to a school 
in North Carolina?
    Secretary King. I have visited schools in North Carolina, 
yes.
    Senator Burr. Have you been there since you've been 
Secretary?
    Secretary King. I've not been to a school in North Carolina 
since I've been Secretary, no.
    Senator Burr. You cite in this rule within the proposed 
regulation that you're forcing this new accountability regime 
on 90,000 schools. You point to research done in 2014 by the 
National Bureau of Economic Research on how NCLB accountability 
systems incentivize school label for sanctions improved in 
areas that led to their identification in the State's 
accountability system. That research focused on North Carolina, 
and I took interest in this citation because of North Carolina.
    What your rule doesn't mention in citing that research is 
that the authors of the research explicitly cautioned that 
given the limited breadth of the research finding, ``one should 
not jump to the conclusion that No Child Left Behind-style 
sanctions regimes is an effective way to identify schools in 
need of change.''
    Simple question: Why would you continue to head down this 
destructive path?
    Secretary King. I think our regulations actually preserve 
State and local flexibility, advance State and local 
flexibility within the areas of defining educational excellence 
and defining the interventions in struggling schools. I agree 
that one of the problems in No Child Left Behind was an overly 
prescriptive set of responses to struggles in schools.
    At the same time, we have to make sure that States and 
districts pay attention when their students of color or their 
low-income students or their English learners or their students 
with disabilities are not performing.
    Senator Burr. In your comments back on this rule, have you 
had people supportive of this pathway that you're headed down?
    Secretary King. The proposed accountability regulations 
reflect much of the comment that we have received, and I 
anticipate that we will continue to get comment, particularly 
from parents' organizations, educator organizations, and civil 
rights organizations who worry that in the absence of the civil 
rights guardrails that the law puts in place----
    Senator Burr. I would ask that you share with the committee 
that list of groups that have come out and said they're 
supportive of this pathway.
    I thank the Chair.
    The Chairman. Thank you, Senator Burr.
    Senator Warren.

                      Statement of Senator Warren

    Senator Warren. Thank you, Mr. Chairman.
    Thank you for being here, Secretary King.
    The Department of Education recently released its latest 
Civil Rights Data Collection Report, a survey of American 
public schools that looks at students' access to resources like 
advanced classes that prepare them for college.
    But when I reviewed the data, I'm very concerned by what I 
see. Low-income students and students of color are 
disproportionately attending schools where they simply don't 
have access to the kinds of classes they need for our most 
competitive colleges and universities. I just want to highlight 
one example out of the report. According to your data, the 
clear majority of mostly White high schools offer calculus, 
which makes sense, because it is a prerequisite for most 
colleges. But only a third of mostly Black and Latino high 
schools offer calculus, which means that the kids attending 
two-thirds of mostly Black or Latino high schools are at a 
serious disadvantage in preparing themselves for college.
    Secretary King, can you explain how the Department's 
implementation of ESSA and your proposed regulations will help 
close these critical opportunity gaps for our students?
    Secretary King. Certainly, our hope is that as States 
develop their accountability systems, that they will include 
indicators like access to advanced courses. You're exactly 
right about calculus. We see a similar pattern around 
chemistry, around physics, around access to advanced placement 
and international baccalaureate courses. States have the option 
to include that kind of indicator and then to act on it, we 
hope.
    We also think it's important that States are transparent 
about equitable access to resources, and advanced course work 
could be a part of that.
    We also think this goes to the heart of the supplement, not 
supplant question, that to the extent that schools serving 
high-need students can't offer these courses, it is often bound 
up with a lack of resources, and ensuring that the Federal 
resources are indeed supplemental is essential to making sure 
that kids have equitable access to these opportunities.
    Senator Warren. Thank you very much. I am glad that your 
proposed rules give us better data to shine light on these 
disparities. But we're also going to need to use those data to 
make clear to States that short-changing students based on 
where they live or their family incomes is just unacceptable, 
and I hope you'll continue to deliver the message loud and 
clear as you move forward with the accountability provisions in 
ESSA.
    Now I want to turn to some other troubling data recently 
out of the Department. This time it's on the higher education 
side. New data from the Department's Student Loan Bank show 
that despite the availability of many repayment options to help 
students, we're still facing an avalanche of student loan 
defaults. When a student defaults, the bank hammers them, 
seizing wages, slamming their credit reports. But it seems that 
life isn't so hard for the servicers who get paid to manage 
those loans.
    So here's my question, Secretary King. The Department 
announced a new competition for these servicing contracts, and 
I know you are looking to clean up these deals. Can you tell me 
what you're doing to make sure that the next round of 
negotiations creates some accountability for these companies so 
they actually help families who are struggling instead of just 
fattening their own bottom line?
    Secretary King. Yes. We are developing a new servicer 
contract and a new servicer structure that will involve a 
common platform with multiple servicers providing services 
through that platform. Borrowers will have a single entry point 
where they can get and submit information, but then servicers 
will compete on performance.
    One of the key things that we've done in that servicer 
contract re-compete is built in a set of principles that 
implement the President's Student Bill of Rights, Student 
Borrowers Bill of Rights. Those principles were developed 
jointly with the Treasury Department and CFPB and we think 
represent what good servicing should look like.
    This contract will proceed in several stages: first, 
identification of the platform provider, and then the 
identification of the servicers who will work on that platform. 
But we intend to ensure that servicers do a good job supporting 
students, and better than they've done.
    Senator Warren. Good. I'm very glad to hear this and this 
commitment on your part. Let me put a finer point on this. What 
role should the company's political influence here in Congress 
or their connections to officials inside the Student Loan Bank 
play in the selection process for these servicers?
    Secretary King. None.
    Senator Warren. Good. Thank you.
    Three years ago the head of the Student Loan Bank testified 
in this committee that it was basically impossible to hold one 
of the biggest servicers accountable for breaking the rules 
because they were more or less too big to fail, and this has to 
stop. Past performance matters. If the Department grants 
another massive new contract to a company with a track record 
of harming students and members of the military, or if the 
company is facing State AG and Federal lawsuit investigations, 
then I think that's a serious problem. I know that you want 
real reform, and that means holding these student loan 
servicers accountable. I know that those companies have a lot 
of lobbyists right here on Capitol Hill, but the families and 
the students don't, and they need you.
    Secretary King. Absolutely.
    Senator Warren. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Chairman Alexander, and thank 
you for your great work on ESSA, and thank you for calling in 
advance and asking what I was going to ask you so you had a 
week to prepare.
    No. 1, I'm married to an IDEA teacher, speech and hearing, 
who worked with special education for years, have always had a 
quarrel with the 1 percent cap on cognitive disability for 
assessment purposes because I believe that the IEP ought to be 
required for every student in America's schools to determine 
the best educational plan given their ability, both exceedingly 
good or exceedingly bad.
    With that said, what are you doing to help ensure that kids 
are identified for IDEA purposes in terms of their education, 
and what are you doing to give us the flexibility necessary to 
see to it a kid can be assessed on the mechanism that's best 
for their intellectual capability?
    Secretary King. This was one of the topics that was part of 
the negotiated rulemaking, and consensus was reached on the 
structure both for the requirements for the 1 percent cap and 
also the waiver process for the 1 percent cap. That consensus 
reflects the principle that we believe that all students with 
the right supports and accommodations can ultimately succeed, 
except there is an important need to pay attention to the needs 
of those with severe cognitive disabilities who may be unable 
to achieve at the same level.
    So the negotiators tried to strike the right balance in 
both defining the cap and defining the requirements for the 
waiver.
    Senator Isakson. I want to yield in favor of the child 
every single time with a disability. We need to make sure 
they're getting the appropriate assessment, and the arbitrary 
cap by government is not the right way to run that program.
    Second, on what Ms. Warren was asking, Senator Warren was 
asking a minute ago, aren't all student loans now direct loans 
from the government?
    Secretary King. There are student loans that are taken 
through private lenders, but within the direct loan program 
we've tried to put in place repayment options that we think 
will help address some of the default problems that we have by 
allowing folks to cap the percentage of their income that goes 
to student loan repayment at 10 percent of their income.
    Senator Isakson. The service agents are agents for the 
government, are they not?
    Secretary King. The servicers do work for us under 
contract, and unfortunately I think historically those 
contracts have not built in all the borrower protections that 
they should have, and we intend to ensure that they do going 
forward.
    Senator Isakson. That would be our fault, not the 
servicer's fault. Is that not correct?
    Secretary King. At the end of the day, the servicers also 
have a responsibility to not try to read the contract to find 
loopholes to provide less than adequate service to students. 
And rather than focus on where we've been, we're focused on 
going forward and ensuring that the contracts build in the 
right protections for students.
    Senator Isakson. The point I want to get to is this. One of 
the biggest things we need to do in education is teach our kids 
how to be responsible in managing their own money and learning 
the life skills that are necessary. Student loans are a good 
way for us to do that. I think the more we focus on teaching 
our students to borrow what they can repay and to understand 
repayment is an obligation, not just a promise, we'll be a lot 
better off. I just wanted to throw that in real quickly.
    On the 95 percent assessment threshold--are you familiar 
with what I'm talking about?
    Secretary King. Yes.
    Senator Isakson. We gave a lot of flexibility to the 
systems, and I gave them a lot of flexibility to allow 
students' parents to opt their child out of an assessment. Are 
you familiar with that provision?
    Secretary King. I am.
    Senator Isakson. It's possible because of opt out and other 
anomalies that may happen, the system may fall below 95 
percent. Is that not correct?
    Secretary King. Both NCLB and the Every Student Succeeds 
Act have a requirement that States would assess all students, 
and ESSA, as you know, has a specific requirement for State 
action when the participation falls below 95 percent.
    Senator Isakson. That's my point. The 95 percent is a goal, 
and the State has the responsibility, if the State doesn't meet 
that goal, to execute a plan to get to that point. Is that not 
correct?
    Secretary King. In our regulations, we provide a set of 
options for States, including a State-determined option for how 
they would address being under the 95 percent participation, 
and ultimately getting to the all-student participation that's 
required by the statute.
    Senator Isakson. Are you sure they're options, or are they 
mandates?
    Secretary King. They're a set of options, including a 
State-determined option.
    Senator Isakson. Because I think our intention--Secretary 
Alexander, Chairman Alexander now, past Secretary Alexander, 
tried to get us to do, and we did a very good job of it, 
setting goals but leaving the administration, the punishment, 
the calculation and the goals, or the mechanisms to achieve 
those goals to the States, not to the Federal Government.
    Secretary King. This is a place where there will be State 
options, and the States would describe which option they had 
chosen in their State plan that would be subject to peer 
review.
    Senator Isakson. I think the point is it's very important 
that we carry out not only the letter of the law but the spirit 
of the law, and the spirit of that law was to leave the 
determination to the local board of education or the State 
wherever possible to achieve and meet those goals.
    Thank you, Mr. Chairman.
    The Chairman. Thanks.
    Mr. Secretary, I don't usually do this on the way to 
Senator Franken, but you have no authority in the law to 
prescribe specific options. That's the job of the Congress, and 
that's something we need to talk about as we go along. None 
whatsoever.
    Secretary King. Just to be clear----
    The Chairman. None whatsoever.
    Secretary King [continuing]. We describe options, and then 
States choose, including----
    The Chairman. But you do not have the authority to define 
what options States may choose. The State has the specific 
authority and flexibility under the law to do that. That's what 
No Child Left Behind kept doing, and that's what the problem is 
with this rule.
    Secretary King. One of the options is the State defines 
exactly what they will do, and then that is part of their State 
plan. So just to be clear, although we describe options, the 
State is determining their approach entirely.
    The Chairman. That's helpful. Thank you for allowing me to 
clear that up.
    Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Thank you, Mr. Chairman.
    I want to talk about something that is of particular 
interest to me and that I was very glad we were able to get 
into ESSA, which is making sure that foster kids can stay in 
their school when they change foster parents. We had testimony, 
I think it was back in 2010, of a young lady named McKayla from 
Minnesota who ended up going to Hamlin and has done very well, 
a very impressive young lady. She had missed 4th grade entirely 
when she changed parents. These kids, foster kids, have 10, 11 
foster parents, routinely, and very often the only constant in 
their life is their school.
    What has been going on is the kids who have a favorite 
subject, a teacher, an activity in their school that is the 
biggest constant in their life, friends, for goodness sake, in 
a school, suddenly change foster parents and they are forced to 
go to a different school. Everyone sort of agreed finally, we 
got this done. So basically the way we wrote it in ESSA is the 
school district and the public welfare agencies have to figure 
out how to pay for transportation. If the kid is moved outside 
the school district to get to school, somebody has to pay.
    In your proposed regulation, school districts are 
ultimately responsible for providing and funding transportation 
for foster kids to their school of origin. Since it's the 
comment period on that regulation, I'd like to comment, and I'd 
rather you go with your guidance, because your guidance does 
not specify who is ultimately responsible. I'd like the school 
and the public welfare agencies in the State to be working 
together on this. I want to eliminate any kind of barrier to 
this happening. This makes such a difference to these kids, and 
these kids deserve to stay in their school. That's my comment.
    Secretary King. I appreciate that. We share the commitment 
around educational stability for foster youth, because kids are 
moving between schools is often the reason that kids miss 
school, do not make the academic progress they need to, are 
retained in grade, drop out.
    What we try to do in the guidance is say that the child 
welfare agencies and the school districts should be working 
together, and we offer examples of best practice around the 
country, including best practice around dispute resolution when 
the child welfare agency and the LEA have different 
perspectives. It is true that in the regulations we try to 
offer a path for how those disputes would ultimately be 
resolved around transportation costs. But, yes, we are taking 
comment and we will consider all comment, including yours.
    Senator Franken. Thank you for including my comment. I'm a 
Senator. My goodness, I think all of you should be insulted.
    [Laughter.]
    I want to talk about something else that I worked for to 
get into this bill. Given that one in five youth between the 
ages of 13 to 18 have or will have a serious mental illness, I 
firmly believe that mental health is one of our country's most 
pressing unmet needs. I'm proud of the work that we've been 
able to accomplish on mental health, but we have a long way to 
go.
    In ESSA, we include provisions that I've long championed to 
increase mental health services in schools. That's why I was 
very disappointed that the spending bill that passed out of the 
Senate Appropriations Committee did not provide adequate 
funding for ESSA student support and academic enrichment 
grants, which includes my mental health provisions and other 
critical programs that Americans really care about. That's 
really something that parents care about, and the schools care 
about, and I'm hopeful that we can increase the funding once 
this bill comes to the floor.
    My question is what can the Department of Education do to 
support school districts that are trying to expand mental 
health services at the local level? Because I've seen this work 
in school districts that do this. I've had roundtables with 
parents who say it has changed their family, it has changed 
their kid's life, it has changed them.
    Secretary King. Yes. We share your disappointment with the 
proposed funding level for title IV. Certainly, the President 
proposed a significant increase around title IV, $222 million 
in additional funding for title IV, because we'd like to see 
more access to mental health services, among other elements 
that are addressed in title IV.
    We issued joint guidance earlier this year with Health and 
Human Services to help guide schools and districts on how they 
could take advantage of the Affordable Care Act to support 
school-based mental health services. We think there are 
existing dollars under ACA and Medicaid that could be used to 
support school-based mental health services, and we offer some 
examples of best practices in that joint guidance.
    We also, through our Promise Neighborhood Grant program, 
are supporting efforts to match schools with community-based 
organizations and community-based health providers to try to 
get those mental health services to kids and to families, 
because often mental health issues in the family have an impact 
on children as well.
    I share your commitment and would love to see the title IV 
funding higher.
    Senator Franken. OK, thank you.
    Thank you, Mr. Chairman, and I hope that my colleagues 
share this commitment to mental health in schools so that we 
can maybe get a little bit more funding for that.
    The Chairman. Thank you, Senator Franken.
    Senator Roberts.

                      Statement of Senator Roberts

    Senator Roberts. Thank you, Mr. Chairman.
    As the distinguished chairman of the committee has said 
many times, the bill which we passed last year to reauthorize 
ESEA restores responsibility to States for their local schools 
by providing increased flexibility to design and implement 
their education programs. The key word here is ``local.'' I'm 
very proud the bill includes my language to permanently end the 
Federal Government's ability to use any incentive or tool or 
coercion to force States to adopt Common Core. If they want 
Common Core, fine. If they don't, that's the intent.
    In fact, just to be absolutely clear, here's what my 
language says:

          ``No officer or employee of the Federal Government, 
        including the Secretary, shall attempt to influence, 
        condition, incentivize, or coerce State adoption of the 
        Common Core State standards, or any other academic 
        standards common to a significant number of States or 
        assessments tied to such standards.''

    Here's the problem. A high-ranking education leader in 
Kansas recently pointed out to me--and the fact that he wants 
to be anonymous is rather telling--

          ``It is not, in our opinion, that the new ESSA law, 
        based on the current version of the proposed 
        regulations, is giving States flexibility around 
        developing a rigorous and accountable model. It appears 
        that, once again we can only build something as long as 
        it meets a strict Federal requirement.''

    That certainly sounds like, to me at least, that the 
Department of Education is not following the spirit and intent 
of the Every Student Succeeds Act. As everyone is aware, ESSA 
has countless prohibitions explicitly stating that the Federal 
Government is prohibited from mandating, directing, 
controlling, coercing, or exercising any direction or 
supervision over academic standards that States develop or 
adopt, including Common Core State standards. The 
Administration is prohibited from influencing, incentivizing, 
or coercing States or school districts to adopt any specific 
academic standards.
    Mr. Secretary, I would like specifically to bring your 
attention to Section 1005(b) of the Act, which states that,

          ``States shall provide an assurance''--a-s-s-u-r-a-n-
        c-e--``assurance that the State has adopted challenging 
        academic content standards.'' Let me repeat that. A 
        State shall only provide an assurance that they have 
        adopted academic standards.

    Turning to proposed regulation 29916, which addresses the 
State plan requirements for challenging academic standards and 
academic assessments, this section would require each State 
education agency to provide evidence, evidence demonstrating 
that it has adopted changing academic content standards and 
aligned academic achievement standards.
    My question: What is the evidence for? Who is the judge? 
Where is it going? What Federal involvement or requirement has 
now been reinstated regarding academic standards? This, to me, 
is an example of the Department of Education trying to 
influence State academic standards once again, and it is also 
contrary to your commitment to me with respect to the intent, 
as well as the explicit prohibitions in the law, during your 
nomination hearing. In my view, there is obviously a big 
difference between providing an assurance and providing 
evidence. This proposed regulation eviscerates the intent of 
Congress and ESSA.
    Mr. Secretary, would you please explain what I think is a 
blatant violation of numerous prohibitions, and also the ESSA 
statute, that clearly says a State need only to provide an 
assurance that they have adopted academic standards, not 
evidence, to somebody within the dusty Common Core halls of the 
Department of Education?
    Secretary King. Let me say as clearly as possible that 
standards are determined by States. The law is clear on that 
point. We are clear on that point. I've been clear on that 
point, as you said, in our prior conversations.
    The law also requires a process for ensuring that States 
have an assessment system that has been through peer review and 
that is fair to students and reliable. As part of that process, 
States provide evidence to peer reviewers, other States, and 
experts on assessment who participate in a process to ensure 
that the State has gone through a rigorous and reliable process 
of matching their standards to their assessments. And as part 
of that process, that peer review process, which is underway--
--
    Senator Roberts. We're doing a two-step here, not a one-
step.
    Secretary King. This is unrelated to the content of the 
standard.
    Senator Roberts [continuing]. The box and say we are 
assuring you that we're doing that with regards to your 
standards that are probably in writing so that they can 
understand what they are. But you're saying that there is a 
secondary step that they're going through with a whole bunch of 
folks who have to then say, OK, we are providing evidence. I 
don't know what that evidence is. I don't know what it means. 
Is it a lot of paperwork? Is it a rigorous test? What is it?
    Secretary King. The longstanding peer review process 
required under NCLB is still in place under ESSA, a peer review 
process to ensure that the assessment system that a State 
develops is a valid one. And as part of that process, the peer 
reviewers----
    Senator Roberts. Who are the peer reviewers?
    Secretary King. Those are other States and would include 
experts on assessment who would participate in the peer review 
process.
    Senator Roberts. What, the big 12? What are we doing here?
    Secretary King. These would be folks who work in other 
States and have worked on assessment systems across States who 
try to ensure that the assessments fairly reflect the law, are 
consistent with the law. So what States are doing is providing 
evidence of a process by which they have aligned their 
assessments with their standards.
    Senator Roberts. But we said assurance. We said assurance. 
We didn't say--this is two different things. Now you've got 
peer review folks. Perhaps they're helpful. But again, they 
could just check the box with assurance, as opposed to 
providing evidence to--I don't know how many peer review groups 
you're talking about. But it seems to me we're going to have to 
have some further discussion about this, without any question. 
I appreciate your response.
    Secretary King. And we are open to feedback on how we can 
make absolutely clear in the regulations that standards are set 
by States. That is clearly a shared commitment.
    Senator Roberts. I think that there's a peer review for my 
distinguished colleague from Massachusetts. In Kansas, perhaps 
that would not be received with open arms, and probably from 
Kansas to Massachusetts would be the same thing. I apologize to 
my colleague.
    The Chairman. Thank you, Senator Roberts.
    Senator Bennet.

                      Statement of Senator Bennet

    Senator Bennet. Thank you, Mr. Chairman. Thank you very 
much for holding this hearing.
    Mr. Secretary, it's great to see you again. Thank you for 
your leadership.
    In Colorado last week a bunch of folks came together and 
had an ESSA summit there. There's a lot of excitement about the 
possibility of now being out from under No Child Left Behind. 
We're having conversations about how we use that flexibility, 
at the same time make sure we've got the rigor that's needed. I 
know you yourself were a former principal of a school.
    I wonder whether you could talk about what the Department 
is doing to ensure that the voices and the knowledge of the 
people that are working in our schools, our teachers and our 
principals, are being involved in ESSA implementation around 
the country.
    Secretary King. Thanks. That's been a priority for us, and 
also a priority that we have communicated to States around 
their process. We've held over 200 meetings around the country 
with educators, with parents, with community leaders as we've 
worked to develop regulations and guidance, and received 
comments from over 700 individuals and organizations.
    At the State level we put out a Dear Colleague letter just 
last week to States laying out recommendations and best 
practices around stakeholder engagement. I think lots of States 
are doing a good job on this, but we worry some aren't. Some 
haven't worked with their districts to make sure that teachers 
or principals, for example, can get release time so that they 
can participate in this process. Some States have been slower 
than others to engage tribal leaders and civil rights 
organizations. We've been encouraging folks around the Council 
of Chief State School Officers, put out a guide to stakeholder 
engagement that they developed with a number of organizations, 
including civil rights organizations, and we've made clear in 
the regulations stakeholder engagement throughout the process 
is required.
    Senator Bennet. One of the things that is certainly true of 
the change in the law is that we have devolved the 
responsibility for implementation back to the States in a 
fairly significant way. How do you expect over time we're going 
to be able to identify those places where they really are 
setting a rigorous standard for kids and demanding that 
standard for kids in places where it's a less rigorous 
standard, and what do you expect the conversation to be like?
    Secretary King. I think there are a number of protections 
around that. One is the peer review process at the outset that 
I was just talking with Senator Roberts about. There's also the 
transparency requirements that I think will help us understand 
where subgroups are not performing, and we'll be able to see 
are States making progress there.
    But one of the things the Department is going to need to be 
vigilant about is the law provides a lot of flexibility for 
States around how to intervene in schools that are struggling 
or schools with low graduation rates or schools with struggling 
subgroups, but we've got to make sure that those interventions 
actually translate into progress and that States respond when 
that progress isn't made.
    Senator Bennet. Could you talk also a little bit--it's 
often been said up here that this law is a civil rights law, 
and I agree with that. I think there's not really any other 
reason for the Federal Government to be involved in education 
other than that at the K-12 level. Could you talk about what 
you're doing, the Department is doing to ensure that as we go 
forward that spirit is maintained, and the commitment to equity 
that I think everybody up here shares to one degree or another 
is also maintained?
    Secretary King. Yes. We tried throughout the accountability 
regulations to preserve the important civil rights guardrails, 
making clear that States need to provide disaggregated data for 
all subgroups, not just at the summative level but for each of 
the accountability indicators that they put in place; that 
States need to have a clear process in place for identifying 
schools that have consistently underperforming subgroups, and 
then have meaningful intervention in those schools to improve 
subgroup performance; that there's clear data disaggregation 
around equitable access to resources so that we can ensure that 
schools are providing opportunity on an equitable basis to our 
students of color, our low-income students, our English 
learners, our students with disabilities.
    This work is going to require continued vigilance on the 
part not only of the Federal Government but of States and 
districts to make sure that we don't let kids fall through the 
cracks.
    Senator Bennet. My time is almost up, Mr. Secretary. I 
wanted to get in one last question. There are no more Federal 
models for escalating consequences as there were in No Child 
Left Behind. That's now left to the States and local districts 
to figure out, to research and design these, and I just wonder 
whether you've thought that through a little bit, about how 
people are going to have the research they need in order to 
implement targeted school improvement strategies in this new 
world.
    Secretary King. Yes. It's very important that folks do that 
informed by evidence about what works, and certainly in efforts 
like the Education Innovation and Research Fund, the work of 
IES will help to provide that evidence base. We try in the 
regulations to talk about how States can, as they move 
progressively forward in more intense interventions if schools 
aren't making progress, they need to rely on stronger evidence 
of effectiveness as they move through those levels of 
intervention, because we do have some good evidence around 
interventions that work. We know that in schools with 
struggling English learners, professional development for 
teachers around working with English learners using dual 
language strategies has a strong evidence base, and we want to 
make sure that folks are thinking about that as they plan their 
interventions.
    Senator Bennet. Thank you, Mr. Secretary.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Bennet.
    Senator Collins.

                      Statement of Senator Collins

    Senator Collins. Thank you, Mr. Chairman. Mr. Chairman, as 
I've listened to the debate at this hearing today, I am 
reminded of a provision that I wrote that was included in the 
Dodd-Frank Act that was known as the Collins Amendment. I had a 
longstanding battle with Federal regulators on the 
implementation of that amendment, and finally the Banking 
Committee actually held a hearing on what was the intent of the 
Collins Amendment. And needless to say, I was the lead-off 
witness. I started off by pointing out that I was Collins, I am 
Collins, I'm still around, and I know what my intent is.
    I would say to you, Mr. Secretary, hearing the debate 
today, that Senator Alexander and Senator Murray, who are the 
authors of this rewrite of the Elementary and Secondary 
Education Act, are still here. They know what their intent is. 
They were careful in drafting the bill. And that's why there is 
this frustration that many of us are feeling.
    I want to talk about the reporting requirements that are 
included in your proposed regulations. I think all of us can 
agree that transparency is essential, but reporting 
requirements should not be so onerous that small school systems 
in rural States have difficulty in complying unless they are 
specifically authorized by the Every Student Succeeds Act. We 
want to make sure the reporting requirements give parents and 
communities the information about their State accountability 
systems, but the proposed regulations establish many more 
reporting requirements than required by the law.
    They include, among other things, how States calculate and 
report data on the report cards, additional data for charter 
school students, and procedures for calculating reporting 
district and school expenditures.
    Two questions. Can you point to specific authority in ESSA 
that you believe allows the Department to propose these 
additional reporting requirements, which appear to me to be 
contrary to the intent of the law? And second, how does the 
Department square these additional reporting requirements with 
the mandate in the law that report cards be concise, 
understandable, and accessible?
    Secretary King. We believe the reporting requirements in 
the draft regulations are consistent with the statute. We 
certainly are open to feedback on the reporting requirements, 
as we are to the entire regulation, look forward to feedback 
from stakeholders. There are places in the statute where, in 
order to fulfill the requirement of the statute, additional 
data will be necessary for States. But again, we are open to 
feedback on the proposed regulations, and if there are places 
where folks think there is already, for example, an existing 
data report that addresses something, we're open to 
consolidating those. So this is a place where we look forward 
to stakeholder feedback.
    Senator Collins. To me it's obvious in the law what is 
required, so I hope you'll take a look.
    I want to second the comments made by the Chairman about 
the summative rating from three rating categories for each 
school. The Act requires that States evaluate their schools on 
academic and non-academic factors, but it does not require that 
each school be given a single rating. So, here we go. We seem 
to be going in the proposed regulations away from the new 
innovative educational approaches in favor of maintaining the 
status quo and the inflexible requirements of No Child Left 
Behind that were discouraging to teachers, to parents, to 
administrators, and students alike.
    How does a summative rating, which essentially reduces a 
school to a single number or letter grade, support the goal of 
State flexibility, which was a fundamental premise of the 
rewrite of this law?
    Secretary King. The summative rating language in the 
regulation does not require the use of a letter grade or a 
numerical index. A State could use those, but a State could 
also use a categorical system consistent with the statute. The 
statute requires that States identify schools for comprehensive 
support, that States identify schools for targeted support, and 
then there will be schools that are in neither of those 
categories. The statute envisions a categorical system, at a 
minimum. That's consistent with our summative rating approach.
    Also, to identify the bottom 5 percent of schools that will 
get that comprehensive support, States will need to have a 
methodology to identify those schools that will require 
relative comparison of school performance, exactly what's 
intended by the summative rating language.
    We think that the summative rating is exactly consistent 
with the statute.
    Senator Collins. I would beg to differ, but my time has 
expired.
    The Chairman. Thank you, Senator Collins.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Thank you, Mr. Chairman.
    Mr. Secretary, thanks for being here today and for your 
testimony. We all want to make sure that we're making the right 
investments and making the right decisions with regard to 
children. I've often said that if kids learn more now, they'll 
earn more later, and that's not just a rhyme, it's literally 
the truth. We know that. That starts certainly with great 
teachers at the core of that process of learning more so they 
can earn more later.
    I want to ask you two basic questions about teachers. First 
on the question of professional development, we know that in 
ESSA part of my legislation, the so-called BEST Act, was 
included to make sure that States and districts, school 
districts, implement evidence-based activities to strengthen 
the teaching profession and keep great teachers in the 
classroom.
    Could you describe the work that your Department is doing 
to support districts in providing effective professional 
development? And then I have a second question about teachers.
    Secretary King. Yes. We certainly believe professional 
development can be key to improving academic outcomes, and also 
improving teachers' ability to serve particularly at-risk 
populations of students, English learners, students with 
disabilities. We plan to issue guidance on title II, and we 
have some examples of best practice around the use of title II 
dollars to support high-quality professional development. We 
also are supporting States as they implement their equity plans 
around equitable access to effective teaching. Many of those 
equity plans rely heavily on quality professional development.
    We also have a number of professional development programs 
that are part of the Education Innovation and Research, or i3 
program, and as those evaluations come back, we will have even 
a broader evidence base around effective professional 
development strategies that States and districts will be able 
to access.
    Senator Casey. I appreciate that because we can't seek to 
have great teachers in classrooms if we don't have great 
professional development.
    I wanted to ask you as well--it's an issue that I think 
Senator Bennet raised earlier, and I want to expand upon it a 
little bit. This question of engagement by stakeholders, which 
is always the intent that we have educators, teachers, and 
other education professionals, parents and community leaders 
involved, and I know there's been a fairly robust and 
significant engagement. But I wanted you to give us a sense of 
how do you measure that, how do you demonstrate that there's 
been that kind of engagement, because I know that you sent a 
letter to State leaders highlighting the importance of that 
kind of engagement. I know and I would applaud what Senator 
Murray and Representative Scott have done in raising this 
issue. But I want to get your sense of where we are with 
engaging all of those critically important stakeholders.
    Secretary King. Yes. There are some encouraging signs. The 
Council of Chief State School Officers issued a guide to 
stakeholder engagement, pointing out best practices, and they 
did that in partnership with over 30 organizations, civil 
rights organizations, educator organizations. I think that was 
an important step, an important resource for States.
    As I've talked with State chiefs, I've heard about efforts 
to do statewide tours, to hold public hearings, the effort to 
reach out to tribal leaders and civil rights organizations, 
parent groups, particularly parents of students who have been 
historically underserved, like students with disabilities and 
English learners.
    But there is certainly a range, and one of the reasons we 
issued the Dear Colleague letter is because of a concern that 
in some States they've been slower to do that stakeholder 
engagement, and in some States they've had a challenge around 
teachers and principals in particular getting the time that 
they need, the release time from their districts to participate 
in these activities. We wanted to try to encourage States to be 
very active in getting their districts to make sure educators 
can participate fully.
    We also in the regulations set out a requirement for 
frequent, consistent engagement of stakeholders. I think the 
success of the law is partly bound up with how effectively 
States mobilize a diverse cross-section of stakeholders in this 
work.
    Senator Casey. I appreciate that. We just want to hear all 
those voices, especially the voices of educators.
    I'll submit for the record a question on the work on 
suspensions and expulsions, trying to reduce the use of those 
practices. We'll submit that in writing. Thanks very much.
    Secretary King. Thank you.
    The Chairman. Thank you, Senator Casey.
    Senator Murkowski.

                     Statement of Senator Murkowski

    Senator Murkowski. Thank you, Mr. Chairman.
    Secretary, I wanted to followup from a conversation that we 
had last time you were before the committee, and that relates 
to the cancellation in the State of Alaska of the Alaska 
Measures of Progress, the AMP assessment. As you know, we were 
compelled to cancel that statewide assessment because we had 
significant widespread, totally unexplained and unfixed 
technical problems that prevented students from being able to 
complete the AMP, a lot of frustration there, as I mentioned to 
you. You received a letter last week that outlines the Federal 
law requires assessments to provide valid, reliable data that 
informs instruction, and it has to be of adequate technical 
quality and consistent with national recognized testing 
standards.
    The State Department of Education has requested a waiver 
from the requirement to assess during the 2015-16 school year. 
The question to you this morning is will you approve the 
State's waiver?
    Secretary King. As you know, we've been in close 
communication with leadership in Alaska. I think we're awaiting 
the submission of some materials describing some of what took 
place as part of their waiver application. We will certainly 
review those when they come in.
    Senator Murkowski. How much time do you figure you're going 
to need to make this determination? Because this is obviously 
very, very important to the State of Alaska.
    Secretary King. Yes. In the past in these situations it's 
been a matter of weeks that we've needed to review the material 
submitted by the State, including the State's plan to make sure 
that they have a system in place to ensure that they're----
    Senator Murkowski. You've had it for some time now, but 
you're saying that you're requiring additional information from 
the State?
    Secretary King. We can followup on the details. I know 
there's information that we are awaiting from the State on the 
events that occurred, and also their plans to ensure that next 
year they'll be able to implement assessments consistent with 
the law.
    Senator Murkowski. As we've had the conversation, it's not 
as if they want to avoid assessment. But again, when you have 
things totally beyond your control, when Kansas basically goes 
dark, if you will, and you cannot complete the testing, it 
really is a situation that calls out for review and for waiver. 
So we would ask you to move on that very quickly.
    You have indicated that you are waiting for some 
information from the State. I am still waiting for some 
information from your offices. When you were before the 
committee in April, you committed to make sure that my office 
was looped in as the Department and the State worked through 
the assessment vendor. I'm told that we are still waiting for 
answers to some 13 different questions that we sent to you. Can 
you commit to me that you will get these questions answered to 
me by the end of the week? Can you look into that for me?
    Secretary King. I can certainly look into it. I don't know 
if some of the answers to those questions are tied to the 
materials that we're awaiting, but certainly I can followup 
with you on that.
    Senator Murkowski. I would like your diligence on that. I 
appreciate it.
    I would ask you about a proposal--this is this diversity 
proposal, or diversity priority, excuse me, that you have 
proposed to add for all of the Department's K-12 and post-
secondary competitive grants. This priority would require all 
applicants to seek to increase schools' racial and 
socioeconomic diversity, and I understand that schools and 
campuses can satisfy the requirement by investigating the 
barriers to diversity, changing school assignment policies, 
creating or expanding school choice, or changing how funds are 
allocated to schools. I think we would all recognize that 
increasing diversity in our schools is a worthy goal. I also 
understand the concerns about outcomes of students that are 
enrolled in some of our Nation's very high-poverty schools.
    We've got a different situation in Alaska, and I hope that 
you recognize that we have some very, very isolated regions in 
the State. These are regions that are bigger than most other 
States. Poverty is high. The population in most of these is 
almost entirely Alaska Native. There are no roads. Eighty 
percent of the communities in Alaska are not accessible by 
road. Oftentimes where you do have roads, it's very dangerous 
to transit in the winter.
    We know the barriers. We know the barriers very well. Many 
of the schools are barely able to sustain a K-12 school, so 
school choice is not an issue here. Then allocating funds is 
not going to change the facts on the ground. It is still a very 
small school, very isolated, geographically islanded.
    The proposal, as we look at it, could essentially prevent 
many, many rural Alaskan school districts, and even some of the 
University of Alaska campuses, from qualifying for any 
competitive grants from the Department. Of course, these are 
just exactly the grants that are designed to help the schools 
serve these students better.
    I would ask if you would look at this proposal and either 
redraft it so that schools in places like Alaska that are so 
remote and so unique are either exempt from this proposal or 
rescind it altogether. I think it is an issue where, again, we 
can't change the facts on the ground. We can't move that 
village into a place where it's on a road system. What do I do?
    Secretary King. That's understood. This priority would be 
one that would not be automatically applied to all grant 
programs. The inclusion of the----
    Senator Murkowski. But then wouldn't we be left out of 
funding opportunities?
    Secretary King. As we develop grant programs, this is one 
of the considerations that we would have, whether it is 
feasible for all of the grant applicants to pursue this 
particular priority. Many of our grants, as you know, have 
priorities around serving rural schools and rural communities. 
We would certainly take into account issues of geographic 
isolation as we assemble a grant application.
    Senator Murkowski. OK. I've raised it to you, and I would 
ask for your due consideration, either that Alaska be exempt as 
other States that are similarly situated or, again, redrafting. 
But if you could look at that, I would appreciate it.
    Thank you, Mr. Chairman.
    Thank you, Mr. Secretary.
    The Chairman. Thank you, Senator Murkowski.
    Senator Whitehouse.

                    Statement of Senator Whitehouse

    Senator Whitehouse. Thanks, Chairman.
    Thank you, Secretary King. Two topics from me.
    One, as you know, there was a middle schools element in 
ESSA. We understand that you do not intend to propose any 
regulations in that area. We are working with the middle 
schools groups to try to get a consolidated view that we can 
work with you on for guidance, a letter of guidance with 
respect to the middle school requirements. That's a preview of 
coming attractions, and I'm not going to hold you to anything 
until we've done our homework with the middle school groups.
    The second issue has to do with the provision of the bill 
related to innovation schools. As you know, if you are a very, 
very big, fancy foundation with a lot of money and you have an 
innovation idea, you have a very strong capacity to push that 
idea into and through the multiple layers of education 
bureaucracy. The concern that led to the innovation schools 
element in the bill was that if you're a school and you want to 
innovate in a certain way and you don't have a foundation or 
some big group that has adopted you, you just want to do what 
you think is best for the kids, you look out at multiple layers 
of forest. You look out first at the layer of forest of the 
municipal education oversight, then if you can get through 
that, then there's the second layer of the State education 
oversight apparatus, and how am I going to be able to get 
through that? If you can get through both of those, then 
there's the third problem of what do you do with the Federal 
education oversight apparatus.
    My concern was that unless there was a path of some kind 
that was illuminated through those forests, we lost an enormous 
amount of innovation from journeys that were never begun 
because at the very get-go, at the principal level of the 
school level, they took a look at the multiple-layered 
bureaucratic forest in front of them and said, you know what, 
not worth our effort, I have no idea how this could possibly 
turn out in our favor.
    To me at least, and to the groups that worked with me on 
this, to be able to move innovation out of just big 
intellectual centers and foundations and so forth and actually 
have it happen in schools is a really important thing. I wasn't 
in the conference, and so I can't vouch for what happened to 
this in conference. You and I have talked about what I've been 
told about who was the adversary of this provision in 
conference, but I would very much like to hear from you now as 
you look at the innovation schools piece what your intentions 
are, how seriously you think you take this, and whether you 
think there actually is a role for innovation at the school 
developed level rather than waiting around for big foundations 
to be the champions.
    Secretary King. Yes.
    Senator Whitehouse. And they're great, by the way. I've got 
nothing against the big foundations. They're important 
champions. I just don't think they're the only ones.
    Secretary King. That's right. First on middle schools, let 
me say I share your commitment on middle schools. I was a 
middle school principal. Now I'm a middle school parent. I 
think middle schools have a crucial role to play in students' 
long-term success, so I look forward to working together on 
that.
    On the innovation schools, I think the way that ESSA and 
the regulations work together creates significantly more space 
for school-based innovation, and we've been careful to think 
about that as we've been drafting the regulations. Certainly 
eliminating the one-size-fits-all school intervention approach 
of No Child Left Behind I think creates a lot of new space for 
States and districts to innovate in those schools that need to 
improve their performance.
    Senator Whitehouse. That obviously only applies to schools 
that have fallen into that pit and now need to try to extricate 
themselves. For a school that's performing relatively well but 
simply wants to do something innovative, unless you can tell me 
something else, you do need a path like the innovation schools 
pathway because at the local school level they have no way of 
knowing, nor do they have the administrative resources to 
attempt how they'd get through that multiple set of 
bureaucratic obstacles, hurdles and approvals all required in 
front of them.
    Secretary King. I think the way we've approached the 
regulations creates quite a bit of space in terms of the 
Federal role. There's no obstacle in the regulations to States 
creating a similar path through some of the existing State 
constraints. But I'm certainly happy to continue to talk about 
ways that we can encourage that.
    Senator Whitehouse. The principle of this is that there can 
be a process of alignment where the municipality, the Federal 
Government agrees that it will step out and let innovation 
happen if the State and the municipality have all done the same 
thing, and if certain requirements have been met at the school 
level from the get-go to show that this is a community-
supported, stakeholder-supported, teacher-supported, well-
developed effort. To say that we're not going to stop the State 
government from doing it is a little bit different than saying 
we'll accept that there should be a path that is lit for 
schools that want to do this so that they can know that if they 
follow this path, they can get to a result rather than just, 
like I said, a lot of these journeys were never begun, and who 
knows what the price was for the children from the journeys 
never begun?
    Secretary King. I think that's right, and this is the 
spirit behind our Teach to Lead work, where we've worked all 
over the country to bring together teacher leaders to develop 
innovative projects in their schools and districts. Certainly 
as we think about the guidance we'll put out around title II, 
we will highlight the kinds of flexibility at the State and 
local level that have helped those Teach to Lead projects to 
thrive.
    But certainly I'm open to continuing to talk about ways 
that we can further encourage that kind of State and local 
space for innovation. It's a shared commitment.
    Senator Whitehouse. Thank you, Chairman.
    The Chairman. Thank you, Senator Whitehouse.
    Senator Murray, do you have any concluding remarks?
    Senator Murray. Thank you, Mr. Chairman. I just want to 
comment on the summative rating, and you answered the question. 
I know there's been some discussion about that.
    Under our bill, States are actually required to develop 
accountability systems that hold schools accountable using 
multiple measures to judge school performance. States are 
required to do that because we wanted to make sure that we have 
better information to help States determine which schools are 
high performing and which ones need supporting, and to provide 
that information to parents as well. The bill also requires 
States to identify their lowest performing 5 percent of 
schools, high schools with graduation rates at or below 67 
percent, and schools with consistently underperforming 
subgroups. I did want to just clarify that.
    I do appreciate your response to that. I think we want to 
make sure this bill works. We want to make sure parents have 
information, schools have information, and the resources flow 
in the direction that we need them to go to. I appreciate your 
response.
    Secretary King. Thanks.
    The Chairman. Thank you, Senator Murray.
    I'd like to put in the record a letter from the Network for 
Public Education.

          ``Dear Senator Alexander, when the Every Student 
        Succeeds Act was proposed, our organization gave it 
        qualified support. We would have preferred the 
        elimination of mandated annual testing. We believed 
        that under ESSA, parents, citizens and teachers would 
        have a greater voice in the creation of their State 
        school accountability system. We are, therefore, deeply 
        disappointed in the proposed regulations put forth by 
        Secretary King. It is apparent that he is seeking 
        through regulation to maintain Federal control of State 
        accountability systems despite the clear intent of the 
        law. We believe that he is attempting to rewrite the 
        law and extend Federal overreach, in some cases even 
        beyond what was under No Child Left Behind.''

    We'll include this in the record with specific items.
    [The information referred to was unavailable at time of 
print.]
    The Chairman. Mr. Secretary, I thank you for coming and 
listening. I think that, if I understood you correctly about 
the timeline that Senator Murray mentioned, that I mentioned, 
that States can expect to have more flexibility in terms of a 
transition year, then a year of implementation, and then a year 
of identifying schools that the regulation would appear to 
offer. If that is the case, I hope you'll make that clear to 
States soon. I think if you do that, that will be seen as a 
welcome demonstration of flexibility and the fact that you're 
actually listening to the feedback that you're getting in 
comments on the regulation. Would you expect that before long 
you would make that clear? You think you just did.
    Secretary King. I think I have, but I will say that the key 
question that I hope States will comment on is in the schools 
that they are providing additional support in 2017-18, how they 
will identify those schools. Will that be carrying over the 
schools from 2016-17? Will that be schools that are newly 
identified using the existing system, or schools that are 
identified using the new indicators, if they are available?
    This is a place where we've made clear to State chiefs and 
to others that we are eager for folks' feedback and look 
forward to responding to that comment in the final regulation.
    The Chairman. One other just general thought, and let me 
use Common Core as an example, as Senator Roberts was talking. 
Sometimes when I say we repeal the Common Core mandate, some 
people have said to me, well, there really wasn't a Common Core 
mandate. And the answer to that is, well, there really was, in 
effect, because while you didn't say every State has to adopt 
Common Core, you said, the Secretary said at the time in order 
to get a waiver from the requirements of No Child Left Behind, 
you've got to adopt challenging standards that are common to a 
significant number of States or get your State university 
system to do it, and, in effect, about the only way to meet 
that requirement was to adopt Common Core, and that's what 30 
of the 42 States who got their waivers did.
    I would caution you against any attempt in the regulation 
to do as Senator Roberts was saying, a two-step. You were 
saying very clearly, just as the law says, States set their own 
academic standards. But if the regulation makes it look like 
that you could reject the evidence, and by rejecting the 
evidence reject the standard, then that goes around the barn 
door. Do you envision that, that you would say to Kansas that 
you may set your standard but we don't like the evidence you 
used to set it, so therefore we're going to reject the 
standard?
    Secretary King. No. What we're trying to do in the 
regulation is describe the longstanding peer review process 
around States having high-quality assessments that align with 
their standards. Certainly if there's any lack of clarity 
around States' prerogative to set their standards, we want to 
emphasize that, and we're open to adding language that makes 
that even more clear.
    The Chairman. I would appreciate that. One place to look 
might be to look at the use of the word ``demonstrate'' as 
opposed to the word ``assure.'' That word was carefully chosen. 
``Assure'' means let you know we've done it. ``Demonstrate'' 
means prove it to us that you did it. Those are different 
words. I appreciate your response. I think that's a 
constructive response.
    I think this has been a good hearing and I appreciate your 
coming. This is the fourth hearing we've had on the 
implementation of this Act, and I'll conclude it the way I 
started.
    We want this Act to succeed, we'd like for you to succeed, 
and we'd like for the teachers and the school board members and 
the parents around the country to have the same feeling about 
this law at the end of this year that they did at the end of 
last year, which was one that they were pleased to see that 
Senator Murray and others, as well as the Republicans on the 
committee came to a consensus, resolved our differences, 
created a period of stability, and restored more responsibility 
to people closest to the children. If we could end the year 
with that same sort of feeling, why, you'll have done a really 
good job. So would the President, so will we, and we can step 
back and let the teachers and the school boards and the States 
have this new era of innovation.
    Thank you very much for coming.
    Secretary King. Thank you.
    The Chairman. I look forward to continuing the 
conversation.
    The hearing record will remain open for 10 business days. 
Members may submit additional information and questions to our 
witnesses for the record within that time, if they would like. 
That would be you.
    Thank you for being here today.
    The committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL
                          
                          
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

  Response by Secretary John King to Questions of Senator Alexander, 
   Senator Enzi, Senator Collins, Senator Hatch, and Senator Sanders

                           senator alexander
    Question. Your proposed regulation basically says that once a State 
identifies a school as needing improvement, the school is always going 
to be identified as in need of improvement unless it shows 
``significant progress'' on federally mandated math and reading tests 
or other academic measures like graduation rates.
    The law says:

          ``Develop a State accountability system that is based on test 
        scores, graduation rates, another academic indicator for 
        elementary schools, English proficiency, and another indicator 
        of school quality or student success of the State's choosing.''

    Test scores and the other academic indicators need have 
``substantial'' weight in that system.
    But the law leaves up to the State what ``substantial'' means. And 
the Secretary is prohibited from prescribing ``the weight of any 
measure or indicator used to identify or meaningfully differentiate 
schools.''
    Your regulation basically says that once a school is identified for 
improvement, you have to improve on the tests and other academic 
indicators or you cannot move out of identification.
    So federally mandated tests and academic indicators are once again 
the primary means used to determine whether a school is succeeding or 
not.
    You also place several new requirements on any non-academic 
indicator a State may choose to include in its accountability system 
which severely limit what a State may include, when the law was clear 
we wanted States to have flexibility to include indicators they wanted 
to.
    This also reinforces the importance of tests and academic 
indicators.
    We have seen the results of a heavy focus on tests from the Federal 
level before, and it created an explosion of over-testing as schools 
and teachers prepared for these high-stakes tests.
    Don't you agree we need to change that? How does your proposed 
regulation move away from such a heavy focus on tests?
    Answer. The proposed regulations, like the statute, would require 
the use of indicators in the accountability system that go beyond test 
scores to promote a more well-rounded education for students, something 
we believe is important. As is required by the statute, our proposed 
regulations would require States to adopt at least one indicator of 
School Quality or Student Success while providing the flexibility to 
determine how many and which such indicators would be appropriate for 
each State's own context and needs. Our proposed regulations build on 
the statutory requirements by including critical guardrails that ensure 
that all of the indicators included in a State's system advance the 
statutory purpose of the accountability system overall.
    To give States flexibility to develop systems that reflect their 
priorities, the proposed regulations do not prescribe or suggest 
specific percentages for any of the indicators, or a range for weights. 
Instead, the proposed regulations would add clarity to what 
``substantial'' and ``much greater'' mean by focusing on how the 
indicators come together and impact school differentiation and 
identification.
    The proposed regulations do not require a State to base 
identification solely on test scores and graduation rates--all 
indicators would be taken into account in differentiating schools, but 
they must be taken into account in a way that is consistent with the 
statutory requirements for weighting. For example, the proposed 
regulations would ensure that, together, academic achievement, 
graduation rate or academic progress, and ELP are given ``much greater 
weight'' than indicators of School Quality or Student Success by 
providing that performance on one or more School Quality or Student 
Success indicator alone could not prevent a school from being 
identified for support and improvement unless the school made 
significant progress (determined by the State) on at least one of the 
``substantial'' indicators, too. Further, the proposed regulations do 
not require a State to establish exit criteria for identified schools 
that are based solely on test scores and graduation rates. Provided 
that the school no longer meets the State defined criteria for 
identification, under the proposed regulations, a State would have 
discretion to examine a myriad of other student outcomes in the school 
to determine whether improvements are sufficient for a school to exit 
status, consistent with the statutory purpose of school improvement 
plans to ``improve student outcomes.''
    As you know, the proposal was out for 60 day public comment, which 
recently closed on August 1, 2016. The Department will take all 
feedback and suggestions received under consideration as we finalize 
the regulation.
                              senator enzi
    Question 1. I have heard from many individuals in my home State of 
Wyoming that they believe the U.S. Department of Education is 
attempting to supersede the clear intent of the Every Student Succeeds 
Act through the regulation process. More specifically, it has become 
apparent to me and many of my constituents that the Department of 
Education is attempting to assert more control over State Educational 
Agencies than what the bipartisan Every Student Succeeds Act clearly 
intended. What are you doing as Secretary to address these concerns?
    Answer 1. Education is, and should remain, primarily a State and 
local responsibility. What we do at the Federal level is support States 
and school districts to improve opportunity for all students, invest in 
local innovation, research and scale up what works, and protect our 
students' civil rights, providing guardrails to ensure educational 
opportunity for all children. The Every Student Succeeds Act provides 
greater flexibility for local communities and States to provide equity 
and excellence for all students. However, since the U.S. Department of 
Education was first established, it has played an essential role in 
protecting the civil rights of all students, especially our low-income 
students, students of color, students with disabilities, and English 
learners. The Department will continue to work with States and 
districts to implement their authority under the new law so we can all 
ensure that every child in this country, regardless of background or 
circumstance, has access to an excellent education that prepares her or 
him for college and career.

    Question 2. Is the growing trend of offering ``guidance'' in lieu 
of promulgating rules a deliberate practice of your Department? What 
force and effect does guidance have? Why is guidance being used instead 
of rules? The most recent guidance on bathroom policies and gender 
equity in Career and Technical Education come with associated threats 
to affect Federal funding streams if not followed. How is this 
consistent with ESSA and the clear intent of Congress to give States 
more flexibility with Federal funds?
    Answer 2. Consistent with the Administrative Procedure Act, the 
Department has issued guidance documents, across multiple 
Administrations, in order to assist States, school districts, schools, 
and other stakeholders in understanding the Department's policies and 
practices and interpretations of the statutes and regulations it 
administers and enforces. The Department does not issue guidance in 
lieu of promulgating regulations, but rather, elects to issue 
additional types of written materials as authorized by Federal law. The 
guidance documents themselves do not have the force and effect of law.
                            senator collins
    Question. During the reauthorization process, I worked with the 
junior Senator from Vermont and others to develop and improve an 
innovative assessment pilot program to give States and school districts 
the opportunity to move away from standardized tests and toward 
assessments that can measure learning competency and proficiency. This 
pilot program is one way to address concerns about over testing and 
could support those States, like Maine, Vermont, and others, that want 
to focus on what students are learning and how well they are applying 
that knowledge, not just how well they can take a test. We hoped these 
regulations would have come out in May, but they did not.
    When will the Department be issuing regulations or guidance on the 
Innovative Assessment Pilot?
    Answer. The Department, as laid out in the Administration's Testing 
Action Plan, is committed to ensuring that all assessments students 
take are high-quality, fair, and worth the time students spend taking 
them. Critically, assessments must also provide valuable information on 
student learning and progress to parents, educators, and students 
themselves. States have made significant strides in recent years to 
improve the quality of their assessment systems, incorporating more 
complex question types and writing, measuring a broader range of skills 
and knowledge, and using technology to improve how assessments are 
administered and scored. However, we know that there is still more we 
can do to improve the testing experience--today, in too many schools, 
redundant and ineffective tests continue to consume valuable 
instruction time.
    We believe that innovation in the design and delivery of large-
scale State assessment systems is one way in which States can build on 
the work that has already been done, and ESSA's innovative assessment 
demonstration authority under title I, part B supports this idea by 
giving selected States time to pilot innovative assessments before 
implementing them statewide. These pilots can also help develop 
evidence for new high-quality assessment models that can be replicated 
in other States, moving the entire field of assessments forward through 
innovation.
    On July 11, the Department published an NPRM in the Federal 
Register that promotes and helps operationalize this new flexibility 
for statewide assessment systems in the law. The public comment period 
on these proposed regulations closes September 9, after which the 
Department will address the comments we receive and develop the final 
rules.
    Separately, on August 5 the Department released an invitation for 
States to apply for Enhanced Assessment Grants, which included a 
competitive priority for States who wish to develop, evaluate and 
implement innovative assessment types and design approaches.
                             senator hatch
    Question 1. In ESSA, we spelled out three ways to resolve payment 
for extra transportation costs between child welfare agencies and 
districts. If there are additional costs, the child welfare agencies 
can reimburse the district for extra costs, the districts can agree to 
pay the extra costs, or the two can reach an agreement about how to 
split these costs. The proposed regulations appear to put the districts 
on the hook as a default payer if no agreement can be reached, which I 
believe could undermine a good faith collaborative process between 
districts and child welfare agencies. Can you explain how this is 
consistent with statutory language?
    Answer 1. With the enactment of ESSA, title I, part A of the 
Elementary and Secondary Education Act (ESEA) now includes vital new 
protections to support children in foster care in achieving educational 
stability and success in school. The new foster care provisions in 
title I are intended to minimize disruptions for children in foster 
care by requiring SEAs and LEAs to collaborate. Specifically, under 
section 1112(c)(5) of the ESEA, an LEA that receives title I funds must 
assure in its local plan that it will develop and implement clear 
written procedures, in collaboration with the State or local child 
welfare agency, governing how transportation to maintain children in 
foster care in their school of origin when in their best interest will 
be provided, arranged, and funded for the duration of a child's time in 
foster care. The statute further provides three options, as outlined in 
the question, that child welfare agencies and school districts may 
agree to in order to pay for any additional transportation costs. The 
statute, however, does not address how to pay for additional 
transportation costs if the child welfare agency and the school 
district do not agree to any of the statutory options. The Department 
published an NPRM to implement provisions of ESSA regarding school 
accountability, data reporting, and consolidated State plans on May 31, 
2016, including proposed regulations regarding the transportation costs 
for students in foster care. We will review public comments we receive 
on this issue and will clarify our position in the final rule, taking 
into consideration the public comments.

    Question 2. To followup on my previous question, the guidance you 
recently released on foster care youth seems to offer a different 
option than the regulations or the law. Question 28 of the guidance 
mentions developing a local or State dispute process for resolving 
agreement issues. It seems counterintuitive to have a local dispute 
procedure in place if the local entities could not originally reach an 
agreement. Can you elaborate more on how you envision this working, and 
explain why you think this is consistent with the proposed regulations?
    Answer 2. On June 23, 2016, the Department of Education and the 
U.S. Department of Health and Human Services released joint guidance on 
ensuring educational stability for children in foster care, which 
addresses the new foster care provisions in title I. Non-regulatory 
guidance creates no new requirements beyond what is in the statute.
    Question 28 of the guidance, as highlighted in the question, 
contains an explanation of the statutory requirements pertaining to the 
LEA transportation procedures, developed in collaboration with the 
State or local child welfare agency (e.g., that even if the two 
agencies cannot reach agreement, their procedures must still ensure 
that a child in foster care promptly receives transportation to his or 
her school of origin); it also provides suggestions and recommendations 
for SEAs, LEAs, and child welfare agencies to consider, based on 
stakeholder feedback and current practices in the field. One of these 
recommendations is that SEAs and LEAs work with child welfare agencies 
to establish State or local dispute resolution procedures, in the event 
that they face difficulty reaching agreement regarding how 
transportation costs will be funded. For example, if an LEA and child 
welfare agency cannot reach agreement on any of the three options for 
transportation cost payments in the statute, the State or local dispute 
resolution procedures could include a process that the LEA and child 
welfare agency would follow in order to reach agreement or the 
procedures could specify a default position for how costs will be 
covered, if no agreement can be reached (such as that the two agencies 
must split the costs equally).
    We will review the public comments on the issue of transportation 
costs that we received in response to our NPRM published on May 31, 
2016, and will clarify the requirement in the final rule, based on the 
public comments.

    Question 3. In the guidance, you mention that title IV-E funds may 
be used by the child welfare agency to pay for transportation costs. It 
is my understanding that there is still some confusion in the field 
about the best way to draw down these funds for this purpose. It would 
also be helpful to highlight how these funds could be used with other 
Federal funds, provided by districts, to create collaborative cost-
sharing agreements for transportation. Can you or your staff provide 
more detail on best practices for how to do this?
    Answer 3. The Departments of Education and Health and Human 
Services are holding a technical assistance webinar series in July 
through early September to walk through the new foster care guidance 
and to help SEAs, LEAs, and child welfare agencies successfully 
implement the ESSA foster care provisions by December 10, 2016. One of 
the webinars, currently scheduled for the week of August 29, will 
specifically address the transportation requirements in the statute, 
the provisions in the guidance, and promising practices from the field 
on developing joint transportation procedures. Additionally, the 
Department of Health and Human Services recently released a letter to 
the field on the title I foster care provisions under ESSA. The letter 
states that the Department will release an Information Memorandum on 
child welfare agencies' role in ensuring educational stability for 
children in foster care later this summer. Specific questions about the 
use of funds under title IV-E of the Social Security Act for 
transportation should be addressed to the Department of Health and 
Human Services for potential inclusion in the Department's upcoming 
Information Memorandum.
                            senator sanders
    Question 1. I supported the Every Student Succeeds Act (ESSA) 
because it continues the civil rights mission of the Elementary and 
Secondary Education Act (ESEA) to ensure all students have access to a 
high-quality education. I also strongly supported ESSA because it 
overhauled the flawed, blame and shame approach of the No Child Left 
Behind Act, which reduced schools and students to test scores.
    Under NCLB, Vermont had to label every single one of its schools as 
``in need of improvement.'' It is of the utmost importance that 
implementation of ESSA reflect congressional intent and the public 
desire to break away from the overly prescriptive, one-size-fits-all 
NCLB, while maintaining strong Federal guardrails.
    I am concerned that some of the draft regulations mark a 
continuation rather than a break from NCLB. I am hoping that you can 
address the following concerns and if necessary make changes to the 
regulations that comport with congressional intent and Vermont's 
commitment to equity, quality, and continuous improvement.

          1. As we move away from the broken No Child Left Behind Act 
        it is essential that in implementing the Every Student Succeeds 
        Act that we do not repeat the same test and punish approach. I 
        was proud to work to both lower the high stakes attached to 
        tests and help schools reduce the amount of time dedicated to 
        testing and test perpetration.
          A key part of moving away from test based compliance and 
        toward deeper learning, is how we assess what students have 
        learned and know. That is why I worked with my colleague, 
        Senator Susan Collins, to include the innovative assessment 
        pilot in this reauthorization. This pilot will allow States to 
        create their own assessments that can be imbedded with 
        instruction and assess deeper knowledge. This would be a much 
        needed move away from the isolating test experience and a move 
        away from multiple choice tests. This new frontier can only be 
        accomplished if the regulations allow States to actually 
        innovate, while ensuring the tests produced are of high-
        quality.

    Can you give a status update as to where the innovative assessment 
pilot is in terms of regulations? In addition to this pilot, what is 
the Department doing to reduce over-testing and lowering the high-
stakes nature of testing?
    Answer 1. The Department, as laid out in the President's Testing 
Action Plan, is committed to ensuring that all assessments students 
take are high-quality, fair, and worth the time students spend taking 
them. Critically, assessments must also provide valuable information on 
student learning and progress to parents, educators, and students 
themselves. States have made significant strides in recent years to 
improve the quality of their assessment systems, incorporating more 
complex question types and writing, measuring a broader range of skills 
and knowledge, and using technology to improve how assessments are 
administered and scored. However, we know that there is still more we 
can do to improve the testing experience--today, in too many schools, 
redundant and ineffective tests continue to consume valuable 
instruction time.
    We believe that innovation in the design and delivery of large-
scale State assessment systems is one way in which States can build on 
the work that has already been done, and ESSA's innovative assessment 
demonstration authority under title I, part B supports this idea by 
giving selected States time to pilot innovative assessments before 
implementing them statewide. These pilots can also help develop 
evidence for new high-quality assessment models that can be replicated 
in other States, moving the entire field of assessments forward through 
innovation.
    Under ESSA, statewide assessment systems under title I, part A also 
allow students taking advanced mathematics courses in eighth grade in 
States that offer end-of-course tests in high school mathematics to 
avoid unnecessary, redundant testing by allowing those students to take 
the assessment typically administered to high school students enrolled 
in the course; and allow States to permit a district to use a single, 
locally selected, nationally recognized high school assessment across 
the district in place of the statewide high school assessment.
    On July 11, the Department published two notices of proposed 
rulemaking in the Federal Register that promote and help operationalize 
these new flexibilities for statewide assessment systems in the law. 
The public comment period on these proposed regulations closes 
September 9, after which the Department will work to address the 
comments that are received prior to issuing final rules later in the 
year.
    Separately, on August 5 the Department released an invitation for 
States to apply for Enhanced Assessment Grants, which included a 
competitive priority for States who wish to develop, evaluate, and 
implement innovative assessment types and design approaches.

    Question 2. The regulations as proposed would result in Vermont 
making accountability decisions for the 2017-18 school year, based of 
old data from schools operating under NCLB in the 2016-17 school year. 
It is not fair to link a new accountability to an old system that did 
not work for Vermont's students, educators, and parents. Is the 
Department of Education (ED) going to properly align new accountability 
systems with data collected under these new systems, by allowing States 
to make their first accountability decisions from data accumulated 
during the 2017-18 school year, to inform decisions for the 2018-19 
school year?
    Answer 2. In order to provide time for an orderly transition to the 
new ESSA accountability systems and to ensure that there is not a gap 
in supports for students in the lowest-performing schools, the proposed 
regulations would require that all States identify schools for 
comprehensive and additional targeted support for the 2017-18 school 
year (consistent with the effective date for the majority of the 
provisions in the ESSA), with annual identification of schools with 
consistently underperforming subgroups for targeted support beginning 
in the 2018-19 school year.
    We know that States and districts are eager to move to new, multi-
measure accountability systems as quickly as possible, but we also want 
to ensure that there is sufficient time to meaningfully engage 
stakeholders in developing each State's accountability system and 
system of supports for low-performing schools. As proposed, the 
regulations would allow States to add new measures or replace measures 
over time as they gather new data.
    As I've said many times, we are eager to get feedback from a wide 
variety of stakeholders on the proposed regulations, including on the 
timeline for implementation, and we will consider that feedback in 
developing the final regulations.

    Question 3. I want to ensure that as States go through the process 
of submitting their ESSA plans that they have ample time for community 
input and feedback. The deadlines of March 6 or July 5, set by the 
Department may be unworkable for schools--occurring during summer break 
or into the academic year. From the feedback I have received from 
educators in Vermont, there seems to be a need to adjust the submission 
dates or shorten the review process to ensure that States receive 
feedback at a time that allows for appropriate community input. What 
changes is the Department willing to make changes to the submission 
date and or process for State plans?
    Answer 3. As with all of the issues contained in the Notice of 
Proposed Rulemaking (NPRM) that the Department published on May 31, 
2016, we look forward to considering those public comments related to 
the submission date and process for consolidated State Plans. 
Specifically on the topic of stakeholder engagement, the Department is 
very concerned that States have sufficient time to meaningfully engage 
with a wide and diverse group of stakeholders during the development 
and implementation of their consolidated State Plans. Thus, the 
feedback that the Department receives will help us set the actual 
submission dates. In addition, on June 23, 2016, I issued a Dear 
Colleague Letter highlighting the importance of stakeholder engagement. 
Given this emphasis on stakeholder engagement, the Department is 
mindful of the need to establish submission dates for the consolidated 
State Plan that support State efforts to conduct meaningful stakeholder 
engagement.

    Question 4. I support the Department's attempt to set a floor for 
the size of grants made to schools identified for Comprehensive and 
Targeted Support and Improvement. Unfortunately, the minimum grant 
amounts of $500,000 for schools identified for Comprehensive Support is 
too large for many Vermont schools--exceeding the total school budget 
for 14 districts and is completely unworkable for the 26 other 
districts with budget's less than a million dollars. The Department 
needs to set multiple options for States in establishing minimum grant 
sizes for Comprehensive and Targeted Improvement Schools, and allow for 
a process of minimal burden for States that must set different minimum 
grant sizes that meet their unique needs. How will the Department amend 
its minimum grant size regulation for Comprehensive and Improvement 
Schools so that it works for small and rural States like Vermont?
    Answer 4. We are eager to support all States, including those with 
many small or rural schools, in implementing the statutory and final 
regulatory requirements for schools identified for Comprehensive 
Support and Improvement. In order to ensure that these schools receive 
adequate funding to implement at least one evidence-based intervention 
and to support all students, the proposed regulations would clarify 
that States must prioritize funding available under section 1003(a) of 
the ESEA for these schools and award no less than $500,000 per school 
per year, unless the State determines that a district needs an amount 
of funding smaller than the minimum award in order to implement its 
school improvement plan. This would allow States to make grants below 
$500,000 as they deem appropriate to meet local needs while still 
ensuring sufficient resources to implement the selected interventions. 
We look forward to reviewing public comment on this issue and will 
consider the comments received in promulgating final regulations.

    Question 5. I am happy to see that section 200.3(a) of the proposed 
regulations offers increased transparency on demographic and academic 
achievement data for charter schools. In addition, we should have 
transparency about the management status of these schools. Is the 
Department open to amending this regulation to give the public more 
information noting if a charter school has a management organization, 
and if it does, whether that management organization is a non-profit or 
for-profit entity?
    Answer 5. We look forward to reviewing public comment on the 
proposed regulations and will consider those comments as we work toward 
promulgating the final rule. ED recently began collecting information 
on charter school authorizers, including authorizer type, such as State 
department of education, State board of education, public charter 
school board, local educational agency, university, community college, 
not-for-profit organization, and non-educational government entity. 
Going forward, ED will work toward ensuring public access to this 
information.

            Response by Secretary John King to Questions of 
                             Senator Warren

                  i. student loan servicing re-compete
    Question 1. In April, the Department's student loan bank, the 
Office of Federal Student Aid (FSA), released a solicitation to procure 
services to develop a new student loan servicing platform to improve 
customer service and assist borrowers in distress. Prospective firms 
seeking to work with FSA would need to demonstrate experience 
``servicing a large number of student loan borrowers successfully and 
converting a large volume of borrower accounts from another student 
loan servicing solution onto the offeror's solution.'' \1\
---------------------------------------------------------------------------
    \1\ https://www.insidehighered.com/sites/default/server_files/
files/Federal_Aid_Servicing_
Solution_-_Solicitation_Statement_of_Objectives.pdf.
---------------------------------------------------------------------------
    This performance requirement suggests that only firms currently in 
the business--including those who have provided poor service to the 
Department--would qualify to compete.

    a. Does the bank believe there were non-incumbent companies 
(companies that do not currently have contracts with the Department) 
that could have reasonably submitted a competitive bid during Phase I 
of the re-compete? Please provide a list of examples.
    b. Three offerors advanced to Phase II. Each of these offerors 
includes one or more incumbent servicers. Does the Department plan to 
re-open the competition to ensure that new players can enter this 
broken market?
    c. In 2014, the bank released a Request for Information related to 
student loan servicing. Which servicers replied to this request? Please 
provide their submissions.

    Answer 1. The Department continues efforts to advance a new loan 
servicing vision that puts the needs of borrowers at the center. In 
this effort we are focused on driving strong outcomes for borrowers by 
ensuring a consistent set of servicing expectations, providing 
transparency in whether those expectations are being met, establishing 
strong oversight and accountability for vendors, and leveraging 
opportunities for multiple partners to compete in providing high-
quality service to borrowers. That's why the Department's leadership 
has directed Federal Student Aid (FSA) to evaluate Phase II 
solicitation applicants in part on their plan to deploy a team of 
vendors with successful experience in counseling student loan borrowers 
on the best repayment plan or other benefit--such as loan forgiveness 
or loan discharge--appropriate for their individual circumstances.
    Specifically, we have encouraged vendors to form teams that combine 
the benefits of experience and existing infrastructure with cutting 
edge approaches to technology and customer care. Two of the three 
successful Phase I proposals included non-incumbent team members, and 
all offerors have the opportunity to expand their teams in Phase II to 
address the detailed requirements, including the provisions of the July 
20, 2016, policy memo. We also plan to issue another solicitation 
[given budget constraints it is unlikely we will be able to do this 
within 12 months of award--we can't do the second solicitation until we 
have the solution in place with the original team so we will know the 
technical requirements; at this point we do not expect to have 2017 
funding to support this effort--I think this is addressed in question 2 
so I would not address timing here] to supplement the work of the 
contract to ensure participation of additional vendors.
    The Department received 27 responses to the 2014 Request for 
Information; the full lists of respondents, along with the submissions, 
are provided in the attachments to this response. A great share of the 
responses were from public policy and consumer protection organizations 
rather than from servicers and have contributed to our understanding of 
the common challenges borrowers face in servicing and that are 
addressed in the Department's policy direction to FSA.

    Question 2. What is the Office of Federal Student Aid's (FSA) 
expected timeline for Phase II of the re-compete? What is the timeline 
for subsequent phases of the re-compete, including subsequent re-
compete processes to hire additional entities and/or sub-contractors?
    Answer 2. The Department expects to issue a Phase II solicitation 
later this year. We expect the timing of subsequent procurements to 
follow approximately 12 months after the contract award, subject to 
availability of funds to support implementation efforts under the 
initial award. Each phase allows for participation of additional 
entities and/or sub-contractors in key aspects of improving servicing 
for borrower.

    Question 3a. For each current TIVAS servicer (FedLoan/PHEAA, 
Navient, Great Lakes, Nelnet), please provide data regarding the 
proportion of delinquent borrowers (borrowers between 7-90 days 
delinquent) that have been contacted by the servicer regarding Income-
Driven Repayment (IDR) programs during the last year.
    Answer 3a. Our servicers attempt to contact all delinquent 
borrowers at multiple touchpoints when a payment is first missed 
through day 90 of delinquency. These outreach attempts involve one or 
more communication methods, including phone calls, e-mail, and 
traditional mail, and most include information regarding income-driven 
repayment. (Under the current servicing contracts, which were 
structured to foster competition based on performance, outreach methods 
and content vary across vendors.) The actual number of borrowers 
contacted varies, given the validity of address or other contact 
information.

    Question 3b. For each current TIVAS servicer (FedLoan/PHEAA, 
Navient, Great Lakes, Nelnet), please provide data regarding the 
proportion of delinquent borrowers that have enrolled IDR programs 
during the last year.
    Answer 3b.

 
------------------------------------------------------------------------
                                                             Proportions
           Servicer code                  Servicer name          (In
                                                               percent)
------------------------------------------------------------------------
578................................  Navient...............         5.9
579................................  Pheaa.................         6.3
580................................  Nelnet................         6.3
581................................  Great Lakes...........         5.4
------------------------------------------------------------------------

    For each current TIVAS servicer (FedLoan/PHEAA, Navient, Great 
Lakes, Nelnet), please provide data regarding the proportion of 
delinquent borrowers who were previously enrolled in an IDR program but 
have not recertified into such a program during the last year.

    Answer 3c.

 
------------------------------------------------------------------------
                                                             Proportions
           Servicer code                  Servicer name          (In
                                                               percent)
------------------------------------------------------------------------
700578.............................  Navient...............         2.4
700579.............................  Pheaa.................         2.3
700580.............................  Nelnet................         .05
700581.............................  Great Lakes...........         4.0
------------------------------------------------------------------------


    Question 4. With respect to Phase II, I appreciate your 30th 
directive to FSA Chief Operating Officer, Jim Runcie, directing the 
bank to make past performance ``the most important noncost factor in 
the evaluation.'' \2\ In adhering to this directive, how, specifically, 
will FSA:
---------------------------------------------------------------------------
    \2\ http://sites.ed.gov/ous/files/2016/06/John-King-servicer-past-
performance-memo.pdf.

    a. consider past investigations, lawsuits, and settlements for 
violations of State or Federal consumer protection laws or laws meant 
to protect students and members of our armed services, including 
evidence of wrongdoing compiled by State and Federal law enforcement 
agencies;
    b. consider servicers' failure to pay existing fines for past 
sanctions;
    c. evaluate servicers' previous record of enrolling distressed 
borrowers into alternative repayment or debt relief plans, including 
the sampling or data points FSA plans to use; and,
    d. evaluate servicers' previous rates of IDR recertification?

    Answer 4. The Department is currently preparing the Phase II 
solicitation, which will include the criteria to be used in evaluating 
proposals. In accordance with the Secretary's directive, past 
performance will be the most important non-cost factor and will be 
considered at two different phases of the selection process. Generally, 
an offeror's past performance is an indicator of its ability to perform 
a new contract successfully and will first be used by the evaluators to 
assess the risks associated with how the offeror would perform the 
contract. Consistent with Federal Acquisition Regulations, after the 
initial evaluation is completed, the Contracting Officer must consider 
the prospective contractor's performance record, among other factors, 
in order to make an affirmative determination of whether that firm is 
responsible. Only responsible firms may receive an award.
    Both evaluators and the Contracting Officer, in their respective 
assessments, will consider past performance data for an offeror 
including that which indicates the offeror has violated State or 
Federal consumer protection laws, engaged in wrongdoing in its loan 
servicing activities, failed to pay fines for past sanctions, or 
performed poorly in enrolling distressed borrowers in repayment or debt 
relief plans or in recertifying participants in Income-Driven Repayment 
(IDR) programs.
    Evaluators have discretion in applying their judgment in the 
evaluation of an offeror's past performance and their work is subject 
to important legal constraints. Under the law, Federal agencies must 
also give every offeror the opportunity to comment on adverse past 
performance information being considered which the offeror has not 
previously had a chance to address.
    The specifics of how evaluators are to consider certain past 
performance information (e.g., rating schemes they may use, internal 
guidance they may consult, evaluation forms they may fill out) is 
confidential source selection information. As such, it must be 
protected from unauthorized disclosure in accordance with the 
Procurement Integrity Act, 41 U.S.C. 2102, and implementing 
regulations, to ensure the integrity of the evaluation process and the 
fair treatment of all participants.

    Question 5. Each of the three offerors that have been advanced to 
Phase II includes a market participant (Navient, Nelnet, and PHEAA) 
that has been caught up in the ``9.5 percent scandal'' that plagued the 
student loan industry. The Department's Inspector General issued 
reports on each of these firms and how they overbilled the 
Department.\3\
---------------------------------------------------------------------------
    \3\ http://www2.ed.gov/about/offices/list/oig/auditreports/fus009/
a03i0006.pdf.

    a. How will FSA consider the 9.5 percent scandal in its evaluation 
of past performance?
    b. Has the Department recovered the $22 million in excess payments 
billed by Navient, as noted by the Inspector General and the 
Department's own investigation?

    Answer 5. The Department will consider this type of information in 
its evaluation of past performance and when making a responsibility 
determination on a prospective contractor. Consistent with Federal 
Acquisition and Regulations, the agency will assess whether the 
potential vendor has a satisfactory record of integrity and business 
ethics. Please refer to the response to Question 4 above for more 
information on how past performance information may be used.
    At this time, the Department has not recovered any of the excess 
payments from Navient. On July 27, 2016, FSA received Navient's appeal 
of FSA's Final Audit Determination related to the Office of Inspector 
General's report that Navient overbilled the Department for special 
allowance payments in the amount of $22 million.

    Question 6. In response to allegations that it violated the Fair 
Credit Reporting Act, one of the Department's largest servicers, PHEAA, 
asserted ``sovereign immunity'' from this law.\4\
---------------------------------------------------------------------------
    \4\ http://www.scotusblog.com/wp-content/uploads/2016/02/pele-op-
below.pdf.

    a. Does the Department believe it is appropriate to retain 
contractors that believe they do not need to follow Federal consumer 
financial protection laws?
    b. Will the Department require, by contract, that contracted 
servicers may not assert sovereign immunity on allegations or claims 
related to its actions on Federal student loans?

    Answer 6. In evaluating offers and selecting contractors, the 
Department focus is each offeror's ability to perform the work as 
required; that includes ensuring compliance with required Federal laws 
and regulations. The Department is currently preparing the Phase II 
solicitation, which will include detailed requirements, driven by the 
policy direction outlined in the Department's recent memo to FSA It is 
expected that among those requirements will be a requirement to comply 
with Federal consumer financial protection laws. If an offeror is 
unable or unwilling to successfully carry out the requirements of the 
contract, that information would be considered by Department 
procurement officials in the evaluation and in selecting the awardee. A 
failure to commit to important work requirements could lead to 
disqualification of an offeror.
    As to PHEAA's claim of sovereign immunity in past and current 
litigation, that in and of itself would not prejudice it in the 
evaluation of past performance. The Comptroller General has indicated 
that in evaluating past performance agencies may not penalize offerors 
simply for asserting their legal rights. To the extent there is 
evidence that any offeror's claims or assertions of rights were 
frivolous, were asserted in bad faith, or had an adverse impact on 
contract performance, or if there is evidence of abusive use of 
litigation, then evaluators may weigh this information in the 
assessment of past performance.

    Question 7. In evaluating past performance, how, specifically, will 
the Department analyze a sample of servicers' loan portfolios to:

    a. compare and assess the proportion of delinquent borrowers;
    b. compare and assess what proportion of delinquent borrowers have 
been contacted regarding IDR programs;
    c. compare and assess what proportion of delinquent borrowers have 
enrolled IDR programs; and,
    d. compare and assess what proportion of delinquent borrowers who 
were previously enrolled in an IDR program, but have not recertified 
into such a program?

    Answer 7. Success in helping borrowers avoid delinquency and 
default will be an element of the past performance evaluation. Details 
on how these factors will be assessed are still under development, but 
will likely include the elements outlined in your question.

    Question 8. In evaluating past performance, does the Department's 
student loan bank plan to require companies involved in the bidding for 
contracts to disclose any pending civil investigative demands, 
subpoenas, lawsuits, or settlements relating to their servicing 
practices prior to awarding a contract?
    Answer 8. FSA is currently preparing the Phase II solicitation, 
which will include instructions to offerors on the information to be 
provided in their proposals. While those instructions are not yet 
finalized, it is expected that offerors will be requested to provide 
information regarding any pending civil investigative demands, 
subpoenas, lawsuits, or settlements relating to their servicing 
practices.

    Question 9. The Department has said that it intends to create 
mandatory servicing standards. How will you ensure that these standards 
are privately and publicly enforceable?
    a. Specifically, will the Department create a third party 
beneficiary right for borrowers in the contracts?
    b. Will the Department insert the enforceable standards in the 
promissory notes that students sign?
    c. If not, how else would the Department ensure enforceability?

    Answer 9. Generally, Federal agencies may enforce the requirements 
in their contracts by asserting a claim against the contractor for 
breach-of-contract damages and/or other remedies available under the 
contract. This may include a claim for failure to comply with service 
standards that have been incorporated into the contract. The Contract 
Disputes Act establishes the procedures and requirements for asserting 
such Government claims and for resolving related disputes.
    Even in the absence of enforcement actions by the Department or by 
private plaintiffs, the Department believes that it can effectively 
ensure a high rate of compliance with servicing standards through a 
number of contract administration measures. They include:

    1. Financial incentives built into the compensation structure of 
the servicing contracts that would adjust compensation based on the 
quality of customer service achieved by the contractor;
    2. Formulae for allocation of accounts to customer service 
providers that take into account the quality of the provider's customer 
service during current or past periods of performance;
    3. Reports on the quality of the contractor's customer service 
submitted to the Contractor Performance Appraisal Reporting System 
(CSPARs). CPAR reports are available to, and are frequently consulted 
by, contracting officers across the Federal Government;
    4. Docking or withholding of the contractor's compensation due to 
defective performance, including through the application of liquidated 
damages or administrative remedies clauses, subject to applicable 
procedures and legal requirements;
    5. Customer feedback mechanism established under the contract for 
the resolution of customer complaints; and,
    6. Initiation of suspension or debarment proceedings should there 
be adequate grounds to suspend or debar based on the contractor's 
failure to perform.

    The Department is considering these and related measures as it 
finalizes the Phase II Solicitation. After award, as part of its 
enhanced monitoring and oversight activities, the Department is 
committed to applying every available measure vigorously and invoking 
its enforcement rights when appropriate, in order to ensure the highest 
quality of customer service for borrowers.

    Question 10. Where, in addition to the contracts, will the 
standards be available? For example, will there be a handbook or 
manual? If so, how will this differ from the standards in the 
contracts? Will the contracts and standards be public?
    Answer 10. Standards and contracts will be available to the public. 
Published standards will not differ from those included in the 
contracts.

    Question 11. How does the Department intend to adopt the Treasury 
Department's recommendations on best practices in performance-based 
contracting, and build these recommendations into the Department's 
incentive model? \5\
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    \5\ https://www2.ed.gov/finaid/loans/repay/best-practices-
recommendations.pdf.
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    Answer 11. Consistent with the Treasury Department's 
recommendations, we are structuring the servicing re-compete to 
incorporate a compensation structure that incentivizes servicers to 
meet or exceed clearly defined service levels tied to ensuring 
borrowers receive the information and assistance they need to 
effectively manage their loans. In addition, we have established a 
Customer Feedback System that creates a standardized complaint process 
for borrowers who have issues regarding their interactions with their 
servicer. Last, we are expanding our oversight, monitoring, and vendor 
management processes to better assess compliance with contractual 
requirements.

    Question 12. Is the Department planning to create new financial 
incentives for the new servicing contracts? If so, which elements of 
the current metrics is the Department planning to keep and which will 
the Department change or improve? How does the Department plan to 
compensate specialty servicers? Has the Department evaluated the 
performance or effectiveness of the current specialty servicers and are 
these evaluations public? Please send my office the specialty servicer 
contracts.
    Answer 12. The Department is considering a broad range of 
approaches to create financial incentives that encourage accountability 
and high performance. In general, we expect that the new contract will 
include much more detailed and specific requirements and accompanying 
performance expectations, with incentives and disincentives tied to the 
vendor's success in meeting or exceeding those expectations.
    The requested evaluation and contract materials related to TEACH 
Grant, Public Service Loan Forgiveness, and Total and Permanent 
Disability Discharge processing, are provided in the attachments to 
this response.

    Question 13a. Which specific offices within the student loan bank 
and the Department will be involved in the review of prospective 
bidders? According to public information sources, the Department's 
student loan bank's Deputy Chief Operating Officer, Matthew Sessa, 
formerly worked at PHEAA. Has the Department's ethics office 
specifically prohibited Mr. Sessa from participating in any discussion 
related to student loan servicing? \6\
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    \6\ https://www.linkedin.com/in/matthew-sessa-13b5a44.
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    Answer 13a. Staff from a number of offices will participate in the 
review, including primarily FSA's Acquisitions, Finance, Technology, 
and Business Operations offices.
    Currently, Mr. Sessa is precluded from participating in any 
particular matters involving PHEAA.

    Question 13b. How many other employees at the bank are barred from 
participating in decisionmaking related to student loan servicing and 
the re-compete, due to their personal financial interests or recent 
employment history?
    Answer 13b. When particular matters are identified, such as the 
evaluation of proposals, FSA screens every individual proposed to 
participate in the evaluation for conflicts of interest. Individuals 
found to have a conflict of interest are not selected. None of the 
employees selected to participate in the evaluation of the loan 
servicing proposals was found to have a conflict of interest due to a 
personal financial interest, recent employment history, or otherwise.

    Question 13c.
    Answer 13c.

    Question 13d. How will the Department ensure that employees at the 
bank are barred from participating in decisionmaking related to student 
loan servicing and the re-compete, due to their personal financial 
interests or recent employment history?
    Answer 13d. The Department is committed to ensuring the highest 
standards of ethics and integrity. Guidance documents are shared with 
employees specific to seeking employment, including post-employment 
rules. These documents are distributed by the Department's Ethics 
Division. As you will see from the documents, the April 15, 2014 
document provides guidance on specific laws and regulations that govern 
employment matters. The second document provides employees information 
in a conversational tone to help ensure the technical aspects of the 
laws and regulations are understood. Both documents make clear that 
there are certain restrictions on Federal employees, particularly those 
that have been involved in procurement activities. Compliance with 
ethical standards and other rules applicable to procurement is promoted 
through training and ongoing outreach efforts to employees at all 
levels. The Department thus ensures that employees are well-versed in 
the conflict of interest requirements as they relate to their job 
duties and responsibilities.
    Where an evaluation team is organized for procurements above the 
Simplified Acquisition Threshold (SAT) (currently greater than 
$150,000) the following steps are taken:

    1. At the time the evaluation teams are empaneled, evaluators are 
advised regarding avoiding conflicts of interest, protecting 
confidential information and other rules of conduct applicable during 
the competition. Any individual who is concerned about potential 
conflicts of interest (COI) is referred to OGC for vetting. None of the 
individuals involved in the Phase I evaluation had any COI due to 
recent employment history. The Phase II evaluators will be subject to 
similar screening and rules of conduct.
    2. Each participant is required to complete a Non-Disclosure 
statement which requires reporting of COI, prohibits release of source 
selection information outside the panel and explains that only the 
Contracting Officer and the head of the agency may release proposal 
information or source selection information about the procurement.
    3. Information about ongoing procurements is closely held and only 
individuals with an actual need to know are provided information not 
available to the public.
    4. Vendors are likewise informed about COI and all Department 
contracts contain COI provisions compelling vendors to report COIs 
including any associated with Department employees.
                   ii. general student loan servicing
    Question 14a. A November 2015 Government Accountability Office 
(GAO) report found ``weaknesses in the processes for selecting calls to 
be monitored and for documenting results.'' Specifically, the GAO found 
that ``FSA monitors far fewer outbound than inbound calls, even though 
one servicer said it makes 60 times more outbound calls than it 
receives inbound calls, and outbound calls are often made to borrowers 
who are delinquent and at risk of default.'' \7\
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    \7\ http://www.gao.gov/products/GAO-16-196T.
---------------------------------------------------------------------------
     Does the Department and FSA plan to increase the number of full-
time employees monitoring calls made between servicers and borrowers? 
If so, how many FTE's will be allocated?
    Answer 14a. Yes. Over the last 9 months, FSA has increased its Call 
Monitoring Capacity by 55 percent. Additionally as a point of 
clarification, inbound calls generally equate to a conversation with 
the borrower, where as numerous outbound call attempts are required to 
yield a conversation.
    We will continue to evaluate resource needs and expect to bring on 
additional staff, provided funding is available.

    Question 14b. How do the Department and FSA currently determine 
which phone calls to monitor?
    Answer 14b. Each servicer is required to provide a listing of calls 
of varying lengths from the previous month with fully identifiable 
information for each call. The servicer is required to send information 
regarding inbound general servicing calls, outbound collection calls 
and all of the specialty line calls (which would include military 
specific lines). We should note that the vast majority of outbound 
calls are an attempt to make contact with a borrower that may not 
result in an actual contact with the intended party. FSA selects a 
random sample to review.

    Question 14c. How has Department and FSA addressed this weakness 
found by the GAO?
    Answer 14c. The Department has taken a number of steps to address 
GAO's recommendations. Each month, calls are sent to the servicer for 
review on a monthly report. These reports include calls that have been 
escalated throughout the month of review as well as any other calls 
that did not meet the passing standard. The servicer is provided with 
feedback and allowed a subsequent response. Following the response from 
the servicer, the final report will be produced to be archived and sent 
to the appropriate internal FSA entities.
    Escalated call reviews are sent to the servicer if there is a 
specific reason for immediate escalation/resolution. The servicer is 
expected to respond to the escalation as soon as possible, generally 
within 2 days. The response is then recorded and archived for use in 
trending and analysis for any further occurrences that may need to be 
escalated further or brought to management's attention.
    In addition, we have enhanced our new Call Monitoring Tool, which 
now allows monitors to more thoroughly analyze reporting to identify 
areas in need of improvement.

    Question 14d. What is the process for ensuring that servicers 
implement the necessary changes when deficiencies are found? Has the 
Department or FSA discovered instances of servicers failing to 
implement changes? If so, what steps did the Department or FSA take as 
a result, and how will these past deficiencies factor into FSA's 
evaluation of past performance?
    Answer 14d. When deficiencies are found with call selection (i.e. 
call quality), servicers are notified of the deficiency and are 
required to address the deficiency within 5 business days of receipt of 
the notification. The servicer is asked to address each failure or 
escalation reported with a written response including what corrective 
action they will take to address the deficiency. FSA is informed when 
corrective action steps are completed and necessary changes are 
implemented. FSA then monitors the servicer's calls providing the 
servicer with feedback as to whether there is improvement in the area 
of deficiency where changes were made. To date we have not found 
instances of servicers failing to implement changes.

    Question 15. The same GAO report found that FSA has failed to 
provide servicers with clear guidance on how to apply over or under 
payments. Is there an updated timeline on when FSA will provide such 
guidance to ensure that borrowers receive consistent servicing 
practices as they repay their student loans? \8\
---------------------------------------------------------------------------
    \8\ Id.
---------------------------------------------------------------------------
    Answer 15. We have met with servicers to discuss the need for a 
comprehensive approach to payment allocation that minimizes customer 
confusion and improves the transparency of the process. Having a common 
approach to payment allocation will provide common and consistent 
customer messaging on allocation. Changes to payment allocation logic 
require system changes and revisions to customer interfaces (e.g. 
website and IVR), call specialist training, and letters, statements, 
and disclosures. Given the scope and cost of such a change across the 
nine current servicers, the Department has deferred any redesign 
pending the servicer re-compete.

    Question 16. A June 2016 GAO report discovered that borrowers may 
have difficulties with contacting servicers through their call centers 
due to where they live and the hours of operation at call centers. 
Specifically, Department officials stated that they ``have no minimum 
standard for call center hours and each servicer sets its own.'' \9\ 
What steps has the Department taken to address this concern?
---------------------------------------------------------------------------
    \9\ http://www.gao.gov/products/GAO-16-523.
---------------------------------------------------------------------------
    Answer 16. As directed by the Under Secretary in his recent Policy 
Memo, borrowers can expect to be able to reach their Servicer during 
and after normal business hours, including availability after 5 p.m. in 
all continental U.S. time zones and some weekends and as such, call 
center hours that align with this expectation have been included in 
Phase II of the Loan Servicing Solicitation requirements.

    Question 17. This same 2016 report also found that,

          ``no performance metrics relate to compliance with program 
        requirements, servicers with more compliance errors experience 
        no reduction in assigned loans, even as their borrowers may 
        experience servicing problems.'' \10\
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    \10\ Id.

    Does the Department plan to incorporate this as a metric moving 
forward, both with the re-compete and single servicing platform? If so, 
how does the Department plan to incorporate and weight this metric?
    Answer 17. As noted in our response to Question 12, the Department 
is considering a broad range of approaches to create financial 
incentives that encourage accountability and high performance against 
program requirements. Final decisions will in part be a function of the 
structure of the winning proposal; as such, we are not able to specify 
which, if any, elements of the current metrics will be included in 
future contracts. In general, we expect that the new contract will 
include much more detailed and specific requirements and accompanying 
performance expectations, with incentives and disincentives tied to the 
vendor's success in meeting or exceeding those expectations.

    Question 18. Will the Department or FSA regularly release findings 
from examinations of its contracted servicers and subcontractors?
    Answer 18. The Department does not plan to release formal Past 
Performance reporting (PPIRS), consistent with governmentwide practice 
and applicable regulations. We are considering what level of reporting 
is appropriate for other servicer reviews.

    Question 19. Please provide all Internal Review Reports of 
contracted servicers and debt collectors over the past 5 years.
    Answer 19. The requested reports are enclosed.
                    iii. student loan portfolio data

    Question 20. I understand that the Department produces a number of 
documents on a recurring basis for evaluating the health of the loan 
portfolio and the performance of student loan servicers. This includes 
things like the Operations Services Reports.
    Describe each of these document types, their use, and their 
recurrence, including the student loan servicer performance reports 
that FSA leadership receives to assess the performance of their loan 
portfolios. Please provide copies of these documents to my office. Will 
the Department release these documents to the public?
    Answer 20. FSA relies on one report to evaluate servicer 
performance, the Operations Services Portfolio Report. The Operations 
Services Portfolio Report (attached) produced monthly, provides an 
overview of the entire portfolio at a glance, and includes the volume 
of borrowers in various repayment statuses (non-defaulted, defaulted, 
current, delinquent, etc.). The report also tracks categories of 
interest including the breakdown of the portfolio by school type and 
payment plan type, the percentage of borrowers in various stages of 
delinquency, and it identifies possible issues such as duplicate 
disbursements. Key statistics are illustrated in a variety of charts 
and graphs.
    Copies of the requested material have been submitted to your 
office. As part of its commitment to increasing transparency, Federal 
Student Aid proactively publishes information relating to the Federal 
student loan portfolio on the FSA Data Center at https://
studentaid.ed.gov/sa/about/data-center/student/portfolio. This series 
of reports is updated quarterly and includes information pertaining to 
the breakdown of the outstanding portfolio by program type, loan type, 
servicer, loan status, repayment plan, and delinquency status.

    Question 21. Will the Department publish quarterly data on the 
number of borrowers certified into Public Service Loan Forgiveness, or 
other programs intended to benefit borrowers to allow me and other 
policymakers, as well as the public, to understand their effectiveness?
    Answer 21. Although no borrower will be eligible to receive 
forgiveness under the Public Service Loan Forgiveness Program until 
October 2017, borrowers interested in PSLF are encouraged, but not 
required, to submit an Employment Certification Form (ECF) annually or 
whenever they change jobs to help track their progress toward meeting 
the PSLF eligibility requirements. On August 19, 2016, Federal Student 
Aid released information about the Public Service Loan Forgiveness 
program, including the number of borrowers who have submitted 
Employment Certification Forms and the status of those forms. In 
addition, the Administration is working to enhance the program's 
effectiveness by simplifying the process of applying for PSLF. The 
United States Digital Service is partnering with FSA to digitize the 
PSLF application so that eligible borrowers do not struggle with paper 
processes to have their loans forgiven.

    Question 22. I understand that the Department has received requests 
from researchers to access anonymized NSLDS and other data and that the 
requests are on hold. Can you explain why the requests are on hold and 
what your timeline is to resolve any delays?
    Answer 22. FSA has received requests for datasets that remove data 
elements such as Social Security Number, name, and date of birth. Even 
without these identifying data elements, other data elements in the 
requests could constitute personally identifiable information, 
especially in combination with each other and other publicly available 
data. FSA is committed to safeguarding the privacy of students and 
their families. As such, FSA is currently researching ways of providing 
truly de-identified data to the public while complying with all 
relevant laws governing data privacy and use.
    In addition, FSA is launching a pilot of its Advanced Insights 
through Data (AID) effort, which seeks to provide federally affiliated 
researchers with access to FSA data that has not been anonymized in a 
secure environment that protects student privacy. For additional 
details of this effort, please see response to question 23.

    Question 23. Earlier this year the White House announced ED would 
start a process for granting researchers access to Federal student aid 
data through the Advancing Insights through Data (AID) Project. What is 
the status of AID? How many individuals have been granted access, what 
is the process for granting access, and where can individuals learn 
about how to apply?
    Answer 23. The AID initiative is an effort to provide federally 
affiliated researchers with secure onsite access to student aid data 
while protecting student privacy. The effort is currently in a pilot 
phase with a single research effort. The pilot is helping inform 
broader requirements around privacy, security, technology, resources, 
and other issues needed to ensure a successful and valuable full-scale 
research program. Beginning in 2017, all eligible researchers will have 
an opportunity to participate by submitting a formal research proposal. 
We are actively working on the pilot phase of the program with the 
Federal Reserve Board. Partially based on what we learn from the pilot 
program, we expect to publish additional information about how 
individual researchers can participate next year.
                    iv. enterprise complaint system
    Question 24. Will the Department or FSA release annual reports on 
complaints submitted to the new complaint system? If so, will these 
reports identify the number of complaints submitted by servicer and 
nature of the complaint?
    Answer 24. FSA will release annual reports submitted to the FSA 
Feedback System, as required by the Student Aid Bill of Rights. 
Although the Student Aid Bill of Rights requires FSA to publish its 
initial report in October 2017, FSA plans to publish its initial report 
in November 2016. FSA does expect these reports to include data on the 
number of complaints submitted by servicer, as well as the nature of 
such complaints.

    Question 25. Will FSA ensure that every single complete complaint 
gets immediately sent to the Federal Trade Commission's Sentinel?
    Answer 25. FSA is working with the Federal Trade Commission (FTC) 
to finalize the process by which complaints are sent to the FTC's 
Consumer Sentinel system.

    Question 26. How will FSA ensure that servicers, debt collectors, 
schools, and other Department contractors are resolving complaints and 
are accountable to students and borrowers? What is FSA's quality 
assurance process?
    Answer 26. FSA staff has access to all correspondence between 
complainants and servicers, debt collectors, and other Department 
contractors. This provides an unprecedented level of oversight over the 
complaint resolution activities of such entities.
    System management teams perform quality assurance on all lines of 
business within the feedback system, including review of 
correspondence, categorization, routing, and resolution for adherence 
to quality standards. Responses or resolutions that do not meet quality 
standards are re-opened for a second resolution, and action is taken 
regarding the responsible party--whether an FSA employee or a 
contractor--as warranted.
    The newly created Enforcement Unit will regularly monitor 
complaints against IHEs in furtherance of investigations of possible 
violations of the title IV regulations.

    Question 27. Will the complainant have direct access to all 
correspondence and information associated with his or her complaint 
through the system? Will the complainant be able to read a servicer, 
debt collector, or school's response and associated information?
    Answer 27. During case submission, complainants are asked whether 
they prefer to be contacted via email or via phone. Correspondence with 
the complainant is managed according to the complainant's preference.
    Servicers and debt collectors may respond directly to complainants 
regarding complaints; as a result, complainants are able to directly 
read responses from these organizations to them. Schools do not respond 
directly to complainants regarding complaints; they respond to 
employees within FSA's Program Compliance unit. In this case, the 
Program Compliance team relays the information to the complainant.

    Question 28. Will FSA ensure that all complainants are asked 
whether they are satisfied with the resolution of their complaints, and 
will complaints from unsatisfied borrowers be reviewed by staff? Will 
complaints be kept open until they are resolved and the complainant is 
satisfied?
    Answer 28. Complainants who log in with their FSA ID are asked 
whether they are satisfied with the resolution of their complaint, and 
to rate their complaint satisfaction on a 1-5 scale. Any complainant 
(FSA ID-authenticated or not) who responds to the email detailing their 
case resolution triggers a flag for an FSA employee to review their 
case, who is able to re-open or provide additional information if 
warranted.

    Question 29. Will students and borrowers who file complaints know 
exactly what to expect from the Feedback system? Does FSA plan to 
release a public guide to detail the life cycle of complaints and 
suspicious activity reports, and who is responsible at what stage?
    Answer 29. Students and borrowers who file complaints are provided 
information regarding exactly what to expect from the Feedback System. 
For example, they are told that FSA expects to respond to complaints 
within 15 days and resolve complaints within 60 days in most cases, a 
timeframe in alignment with Federal best practices.

    Question 30. Will the Department or FSA release annual reports on 
complaints submitted to the new complaint system? What information and 
will be contained in FSA's October 2016 report about the Feedback 
system? If so, will these reports identify the number of complaints 
submitted by service and nature of the complaint?
    Answer 30. FSA is currently designing the October 2016 report. The 
report will include the number of complaints submitted by servicer, as 
well as the nature of such complaints.
                            v. other issues
    Question 31. What is the Department's current practice regarding 
public access to servicing contracts? Specifically, does the Department 
make public the contracts and guidance, as well as any modifications to 
contracts? Please provide a copy of the contract or contractual 
modification with MOHELA to provide borrower defense assistance, 
including a description of the parameters, requirements of this 
contract, financial incentives, and whether these documents are public. 
If these documents are not public, then please explain why not. Please 
provide a copy of the guidance.
    Answer 31. Servicing contracts and major modifications are posted 
publicly at: https://www.fbo.gov/spg/ED/FSA/CA/FSA-TitleIV-09/
listing.html. 
https://www.fbo.gov/spg/ED/FSA/CA/NFP-RFP-2010/listing.html.
    Given the large volume of modifications and guidance issued, much 
of which is administrative in nature and all of which would need to be 
reviewed and redacted prior to posting, that information is not 
typically shared with the public.

    Question 32a. Institutions of higher education are required to meet 
certain standards of financial responsibility. The Department 
determined that Corinthian Colleges had a financial composite score of 
0.9 for fiscal year 2011, which fell below the minimum required 
financial composite score. However, the Department's student loan bank 
did not require any letter of credit to protect against losses to the 
taxpayers. Why did the Department decline to order Corinthian to 
produce a letter of credit? Please provide all documents and memoranda 
related to this decision.
    Answer 32a. CCI failed its financial composite score in fiscal year 
2011, and ED required an LOC; however, over the subsequent year, CCI 
appealed this score, delaying the remittance of an LOC. At the 
conclusion of this appeal, ED determined CCI failed in fiscal year 
2011, but registered a passing score in fiscal year 2012, which would 
have released any LOC back to CCI. Specifically, on October 31, 2012, 
the Department notified Corinthian Colleges (CCI) that its fiscal year 
2011 audited financial statements indicated a failing composite score. 
That triggered the requirement to remit a Letter of Credit to the 
Department in the amount of $175 million within 75 days of the date of 
the correspondence (see Department correspondence dated October 31, 
2012). CCI requested in correspondence dated November 2, 2012, and 
November 12, 2012, that the institution be permitted additional time to 
make a determination on the LOC request. Furthermore, CCI requested a 
meeting to discuss the basis for the financial determination and 
referenced letters from two financial experts essentially disputing the 
manner in which the department treats ``goodwill impairment'' in its 
financial composite scores (see CCI correspondence dated November 2, 
2012 and November 12, 2012). To fairly consider the claims made by CCI 
and ensure the veracity of the Department's approach, the Department 
contracted with an accounting firm (Deloitte) to independently evaluate 
its methodology for conducting financial analysis and the treatment of 
items in the composite score ratios such as ``goodwill impairment.''
    During the period of contract award and Deloitte's subsequent 
analysis and recommendations (see ``Deloitte'' attachments)--spanning 
December 2012 through May 2013--the Department and CCI continued to 
discuss the request for a LOC request dated October 31, 2012. In a 
letter dated December 11, 2012, the Department noted that while it was 
considering the issues CCI raised in its November 2012 letters, the LOC 
remission date would be extended to essentially 10 days after the 
Department's official response to the November 2012 letters from CCI 
(see Department correspondence dated November 11, 2012. In addition, 
the Department requested additional information on various matters 
related to CCI's financial status which resulted in the institution's 
response dated December 24, 2012 (see CCI correspondence and 
attachments dated December 24, 2012).
    On August 16, 2013, the Department's Chief Compliance Officer, 
Robin Minor issued correspondence to CCI executives upholding the 
determination that CCI had failing financial composite score of 0.9 for 
fiscal year 2011 but passing composite score of 1.5 for fiscal year 
2012 (see Department correspondence dated August 16, 2013). The August 
2013 correspondence rendered any LOC remitted for a failed composite 
score for fiscal year 2011 irrelevant in this case. This is due to the 
fact that any LOC remitted in relation to the failed composite score 
for fiscal year 2011 would have had to be relinquished due to the 
passing score calculated for fiscal year 2102.

    Question 32b. Who at the Department's student loan bank made the 
final decision not to order the letter of credit?
    Answer 32b. FSA's Program Compliance Office, FSA's Chief Operating 
Officer, and the Department's Office of the General Counsel were 
involved in these decisions.

    Question 32c. How much does the Department expect taxpayers in 
closed school discharge and borrower defense claims because the bank 
failed to order a letter of credit from Corinthian?
    Answer 32c. The June 29, 2016, release from Joseph Smith, Special 
Master for Borrower defense (BD), reported that the Department had 
approved 3,787 BD claims by former CCI students, with an aggregate loan 
amount of $73,110,502. In addition, as of June 24, 2016, closed school 
loan relief has been granted to 7,386 CCI students, with an aggregate 
outstanding principal of $97,613,625. The Department has calculated 
that its potential exposure to CCI closed school discharge claims is 
approximately $200 million. The total amount of borrower defense relief 
that may be granted to former CCI students depends on the total number 
of applications from eligible borrowers. As we reported in the last 
Special Master report, the Department has granted more than $73 million 
in borrower defense relief. We are continuing to receive more 
applications from CCI students, and we are continuing our outreach to 
potentially eligible students.

    Question 33a. With respect to borrower defense, is the Department 
planning to publicly issue guidance regarding how FFEL borrowers can 
apply for borrower defenses? If so, what is the timeline and how will 
this guidance be made public?
    Answer 33a. Yes. In the coming months, the Department will provide 
additional guidance on its Web site to clarify that a FFEL borrower can 
apply for borrower defense upon consolidating their FFEL loans into 
Direct Consolidation Loans. The Department will further explain that 
prior to consolidation; the Department will provide FFEL borrowers with 
the opportunity to obtain a pre-determination with respect to whether 
they are eligible for relief under the Direct Loan borrower defense 
regulations.

    Question 33b. Do you believe guidance for FFEL loan holders to 
grant forbearances to FFEL borrowers who apply for defense to repayment 
is necessary or can FFEL loan holder currently grant forbearances?
    Answer 33b. While FFEL loan holders have discretion in determining 
when to grant forbearance, the Department is developing guidance to 
clarify that loan holders can grant forbearance to borrowers who apply 
for relief based on a borrower defense claim. The Department will 
provide such guidance in the form of a Dear Colleague Letter. This 
guidance will clarify that the Department will contact FFEL loan 
holders to request that they grant forbearance to FFEL borrowers with 
pending defense to repayment claims. Moreover, the proposed borrower 
defense rule published in June would also provide that FFEL loan 
holders will be required to place loans in forbearance when the 
Department makes such a request.

    Question 33c. Do you plan to issue guidance on this topic?
    Answer 33c. Yes, the Department will issue guidance in the above-
referenced Dear Colleague Letter in the coming months.

    Question 34. In my February 2016 Questions for the Record, I asked 
you to ``please provide the guidance that the Department currently 
gives student loan servicers regarding borrower defense discharges, 
closed school discharges, and other student loan discharges.'' You said 
your staff would ``be pleased to further discuss our guidance to 
student loan servicers'' in a meeting with my staff. Months later, my 
staff has never seen such guidance. Does the Department provide 
guidance to student loan servicers regarding borrower defense 
discharges? If not, then why not? If so, then please provide the 
guidance.
    Answer 34. On June 1, 2015, the Department notified all servicers 
of an impending announcement (subsequently issued on June 8, 2015) 
regarding Borrower defense to Repayment. This announcement explained 
that under law certain borrowers would be eligible for full or partial 
discharge of their student loans based on different scenarios involving 
the school they attended. Servicers were informed that borrowers could 
begin this process by providing information directly to the Department, 
that a call center would be prepared to provide support, and that 
servicers would be asked to apply administrative forbearances to 
borrower accounts while the Department completed the review process. 
Such forbearances were to be non-interest capping, applied to the 
borrower's account within 5 days, and designed to cover any existing 
delinquency, plus a period covering the next 12 months. Information 
regarding the borrower defense program was also posted on the 
studentaid.ed.gov Web site and we prepared servicers to assist 
borrowers with closed school loan discharges.
    Servicers were also provided with an internal guide entitled 
``Borrower defense in a Nutshell,'' which was designed to explain the 
history of borrower defense, prepare servicers for a significant 
increase in applications from borrowers seeking relief, and outline 
various resources available to borrowers to assist them in the 
application process. Further, the Department provided a Question and 
Answer document (with multiple updates) for servicers to share with 
their customer service representatives to assist them in correctly 
responding to borrower questions on borrower defense. Copies of these 
documents are provided in the attachments to this response.
    The Department established a dedicated Web site as the primary 
location for borrowers to obtain information on debt relief and apply 
for administrative forbearances. This Web site was located at: https://
studentaid.ed.gov/sa/about/announcements/corinthian.
    In addition, a borrower defense ``Hotline'' was set up to help 
borrowers understand and exercise their options. Servicers were advised 
of the hotline number--(855) 279-6207--and the hours of availability 
(Monday-Friday from 8 a.m. to 8 p.m. Eastern time). One of the 
Department's Federal servicers was then selected to operate the call 
center and also set up a Web site to receive forbearance requests from 
borrowers who attended CCI.
    Specific to CCI, as schools were closing the Department provided 
prompt closure notifications to servicers and required them to 
implement customary closed school procedures, which includes 
proactively reaching out to impacted borrowers to assist them in 
completing closed school discharge requests. To track the volume of 
closed school applications and borrower defense inquiries, the 
Department required servicers to submit a weekly report with 
information specific to CCI students, which enabled the observation of 
trends, assisted in the development of initiatives, and also informed 
decisions related to CCI and borrower defense.
    More broadly, we have instructed servicers to refer borrowers 
inquiring about borrower defense to our Web site or instruct them to e-
mail the Department. The servicers send the Department borrower 
applications or correspondence indicating the student was harmed by 
actions or failures to act by a school. That is the case whether or not 
the inquirer uses the exact terms ``borrower defense'' or ``defense to 
repayment.''
    In addition, the Department took the lead in notifying CCI students 
of their potential eligibility for discharge by initiating a borrower 
defense email campaign. More than 325,000 CCI students received these 
messages, which encouraged them to apply for discharge through the 
studentaid.ed.gov/Corinthian Web page, contact FSA's Hotline, or review 
information contained on ED's blog post ``For Corinthian Colleges 
Students: What You Need to Know about Debt Relief.''

    Question 35. What is the status of the PCA contracts, and how do 
these contracts interact with the servicing re-compete (if at all)?
    Answer 35. Proposals under the PCA solicitation are still under 
review; this process is completely separate from the servicing 
solicitation.
    See the solicitation notice here: https://www.fbo.gov/
index?s=opportunity&mode=
form&id=2fc9caba34a9c5f65fb9eb37550df06a&tab=core&_cview=1.

    Question 36a. Last year, my office published a report detailing its 
investigation of the flawed reviews conducted by the Department's 
student loan bank. I am pleased that the Department is prohibiting the 
bank from conducting the review and is instead retaining an independent 
firm.\11\ What error rate would exceed the Department's tolerance level 
and lead to termination of the contract?
---------------------------------------------------------------------------
    \11\ http://www.warren.senate.gov/files/documents/
SCRA_ED_Report_August2015.pdf.
---------------------------------------------------------------------------
    Answer 36a. The Department signed a contract on August 19, 2016, 
with an external vendor to conduct the audit. The review does not 
establish a specific error rate as the Department believes it is not 
prudent to pre-determine a specific threshold. Rather, the Department 
believes it is important to be able to determine the specific elements 
of the violations to determine if action should be taken.

    Question 36b. Will the Department publicly release this error rate 
prior to conducting the review?
    Answer 36b. The Department expects to release the results of the 
findings of the independent auditor.

    Question 36c. Will the Department's student loan bank's executives 
be prohibited by the Secretary to determine any sanctions?
    Answer 36c. Senior management within the Department, including 
representation from the Acquisitions Office, will be involved in 
determining any appropriate actions.

    [Editor's Note: Due to the high cost of printing and the large 
volume of supplemental materials submitted, the materials are 
maintained on cd's in the committee file.]
    [Whereupon, at 11:49 a.m., the hearing was adjourned.]

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