[Congressional Record Volume 163, Number 44 (Tuesday, March 14, 2017)]
[Senate]
[Pages S1803-S1804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              H.J. RES. 57

  Mr. CARDIN. Mr. President, in December 2015, this body came together 
to enact what then-President Obama called a Christmas miracle, the 
Every Student Succeeds Act, ESSA. This truly bipartisan, bicameral 
compromise reauthorized the Elementary and Secondary Education Act, 
ESEA, for the first time in more than 14 years on the compromise of 
local control for Federal safeguards. First enacted more than 50 years 
ago as a part of the civil rights era, the ESEA sought to ensure that 
all children, regardless of their ZIP Code, were able to obtain a high-
quality education. The legislative process is about compromise, and I 
have

[[Page S1804]]

concerns that last Thursday's vote to use the Congressional Review Act 
to repeal the Department of Education's ESSA regulations will roll back 
that compromise and leave our neediest students without the Federal 
safeguards they deserve.
  Ensuring access to a high-quality education is one of the most 
important duties of Federal, State, and local governments. I supported 
ESSA, along with 84 other Members of this body, to move our State and 
local school systems away from a Federal, one-size-fits-all ``adequate 
yearly progress'' accountability system and allow States to design 
their own accountability systems to identify, monitor, and assist 
schools. Rather than rely on a collective set of test scores to measure 
student performance as under No Child Left Behind, ESSA allows States 
to design accountability systems that will take into consideration 
student growth over the course of a school year. States will be able to 
consider multiple measures of student learning, including access to 
academic resources, school climate, and safety, access to support 
personnel, and other measures which can allow for differentiations in 
student performance within a school or a local school district. All of 
this is being done while ensuring students are held to the high, yet 
achievable, standard of being college- and career-ready upon completion 
of high school. While State and local school systems have newfound 
flexibility under ESSA, they must adhere to a Federal civil rights 
safeguards meant to ensure children with disabilities, students of 
color, low-income students, and our English language learners are not 
forgotten.
  Just as the Bush administration led Department of Education provided 
after the enactment of the No Child Left Behind Act in 2002, the Obama 
administration led Department of Education worked to enact regulations 
and provide States with guidance and technical assistance to properly 
implement ESSA. After work for nearly a year and feedback from more 
than 20,000 education stakeholders, the Department published its final 
accountability, State plans, and reporting regulations in November 
2016. The regulations provided broad flexibility for State and local 
school systems to improve student outcomes in their States and 
districts while ensuring all students receive an excellent and well-
rounded education. The regulations provided certainty to States and 
local school systems and clarified how to comply with their statutory 
requirements.
  The Congressional Review Act was the wrong instrument to modify the 
Department's accountability regulations. In 2006 and 2008, the Bush 
administration led Department of Education responded to concerns 
regarding the implementation of the No Child Left Behind Act by 
education stakeholders and updated the regulations and guidance 
necessary for State and local school systems to adhere to the law. Now 
that the Congressional Review Act has struck down the existing 
regulations, the Department is prohibited from issuing similar 
regulations or addressing future implementation concerns raised by 
those same stakeholders. Just as we have worked to move away from the 
one-size-fits-all Federal solutions under the No Child Left Behind Act, 
the Congressional Review Act wrongly utilizes a one-cleaver-eliminates-
all approach. We could not pick and choose which parts of the 
regulations we would have wanted to keep, such as the regulation's 
additional year for States to implement their State-designed 
accountability systems before taking corrective action, all aspects of 
the regulation, and nearly a year's worth of the Department's work is 
eliminated. School systems will now have to rely on nonlegally binding 
guidance from the Department on how to adhere to their statutory 
requirements.
  In my home State, the Maryland State Department of Education has 
worked for more than a year to develop our State's education plan as 
required under ESSA. Our State superintendent of schools, Dr. Karen 
Salmon, has traversed the State, listening and engaging with 
Marylanders who seek to have a voice in their child's education. The 
purpose of ESSA was to ensure that we return the ability of our State 
and local school systems to provide for the education of our children 
in exchange for staying within certain Federal safeguards for our 
neediest students. This is what we are doing in Maryland. The concerns 
and feedback expressed by Marylanders will be incorporated into a 
revised State plan and submitted to the Department of Education later 
this year. All of this work to comply with the Department's draft and 
final ESSA regulations, all of the consultation with members of the 
local community, is now for naught now that the Senate agreed to the 
use of the CRA. Our State and States are left with uncertainty as to 
how to comply with their statutory Federal requirements. Our States are 
clamoring to move away from the uncertainty of the Department's No 
Child Left Behind waivers from 2012 and have a clear understanding of 
how to comply with Federal law. The elimination of the Department's 
accountability regulations further delays the ability of State and 
local school systems to move away from No Child Left Behind policies.
  Throughout Secretary DeVos's confirmation hearing, the Secretary 
repeatedly demonstrated a lack of depth in the longstanding debates 
surrounding the education community. I have concerns that Secretary 
DeVos, who did not understand the protections afforded to children with 
disabilities under the Individuals with Disabilities Education Act, 
IDEA, would be a forceful advocate to require States and local school 
systems to ensure that children with disabilities are counted and not 
forgotten. Given Secretary DeVos's expressed support for the 
privatization of our Nation's public schools and resistance to 
meaningful Federal oversight of nontraditional schools, I have concerns 
that any new regulations created by the Department could incentivize 
States and local school systems to promote the privatization of low-
performing public schools or set different accountability standards 
between public schools and nontraditional schools. These concerns are 
not unfounded; Secretary DeVos has already informed States that the 
Department will be creating a new template for submitting State plans 
outside of what is required under the Department's existing 
accountability regulations. Our students need a Secretary of Education 
that will uphold Congress's ESSA compromise, local control for Federal 
safeguards.
  The use of the CRA to repeal the Department's ESSA accountability 
regulations provides Secretary DeVos with the ability to significantly 
undermine the bipartisan nature of ESSA and Federal safeguards 
necessary to protect our students. I am disappointed a majority of my 
colleagues voted in favor of this shortsighted measure that fails to 
protect our children with disabilities, students of color, low-income 
students, and our English language learners.

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