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    Wisconsin Lawyer
    July 28, 2016

    School Accountability After “No Child Left Behind”

    Most federal and state lawmakers agree that U.S. schools need to better serve all students, especially ones from disadvantaged backgrounds, but controversy continues over how to meet that goal. Learn here what the federal Department of Education and Wisconsin’s elected officials are doing to reform K-12 public schools.

    Jessica E. Ozalp & Rachel E. Snyder

    School child graduation

    In the last days of 2015, Congress made the biggest update to school law since passage of the law known as “No Child Left Behind” (NCLB) in 2002. The new law is a reauthorization of NCLB, which expired in 2007. Dubbed the “Every Student Succeeds Act,” or ESSA, it scales back the NCLB’s top-down approach to education reform and school accountability, freeing states to more directly control school reform efforts.1

    Headlines heralded the “most significant step toward local control of schools in 25 years,”2 granting states more discretion over education policy. ESSA repeals or alters many aspects of NCLB’s federal mandates on state public schools. States must implement changes under the new law by the beginning of the 2017-18 school year. Federal rulemaking and state implementation are already well underway.3

    ESSA affects four key aspects of Wisconsin’s school accountability system that the Wisconsin Legislature addressed in 2015:

    • Academic standards;
    • Standardized state tests;
    • Interventions for low-performing schools; and
    • Teacher evaluation systems.

    This article provides an overview of these key issues with regard to 1) the major education proposals considered in 2015 by the Wisconsin Legislature; and 2) the provisions of ESSA, with an eye to its more flexible approach, which could affect future legislative priorities.

    Standards-based Accountability, Then and Now

    ESSA does not change the basic orientation of federal school reform, best described as standards-based accountability. This approach leverages student standardized test scores to pressure underachieving schools to improve on measures of student progress. NCLB heavily emphasized state “accountability systems” based on standardized test scores; teacher evaluation systems incorporating those scores; and federally determined interventions for schools with low scores or high achievement gaps.

    ESSA, like NCLB, aims to reduce achievement gaps by holding states, schools, and teachers accountable to test and report the performance and progress of disadvantaged subgroups of students, such as low-income students, minority students, students with disabilities, and English-language learners. (See accompanying sidebar, Achievement Gaps.)

    Many observers question how well NCLB and its predecessor, the 1965 Elementary and Secondary Education Act, met the goal of improving educational quality and opportunity among disadvantaged subgroups of students. Aspects of NCLB were widely criticized as unattainable, especially expectations that states show “adequate yearly progress”6 toward federally prescribed goals.

    For instance, NCLB set a nationwide goal of “universal proficiency,” or having 100 percent of students perform at grade level in reading and math, by the 2013-14 school year. Arguably, this goal was aspirational, but because NCLB attached penalties to it, more and more schools were labeled as failures. ESSA, by comparison, creates more flexibility for states to shape their own goals for improving achievement.

    Achievement Gaps

    Wisconsin schools have the widest racial disparity in the nation in academic achievement between white students and students of color.4 The disparity, referred to as the “achievement gap,” is a continual cause of great concern and controversy, particularly in designing our accountability system. Superintendent Tony Evers has called the achievement gap “the most important issue facing education in our state” and “the civil rights issue of our time.”5

    Academic Standards

    NCLB required that state accountability systems measure achievement on tests aligned to nationally accepted academic standards, and Wisconsin (like most states) chose the Common Core State Standards.7 Much controversy ensued over federal pressure for states to adopt this set of standards (originally developed by a coalition of states) and the standardized tests created to accompany them.8 (See accompanying sidebar, Waivers from No Child Left Behind.)

    The Wisconsin Legislature and Gov. Walker have pushed back against State Superintendent of Public Instruction (hereinafter Superintendent) Tony Evers’ decision to adopt the Common Core State Standards as model standards in Wisconsin. The 2015-17 biennial budget ended Wisconsin’s participation in the consortium that built the standards. It also prohibited the Superintendent from adopting or mandating school district use of Common Core.9 Local districts remain free to select their academic standards.

    Just as Wisconsin law limits state influence over school district academic standards, ESSA limits federal influence in response to resistance to nationalized standards. It prohibits the U.S. Secretary of Education from mandating or incentivizing states to adopt any specific academic standards.10 State plans must include adoption of “challenging state academic standards,” but states will not submit their chosen standards for federal review or approval.11 Federal mandates or coercion of states or schools regarding curriculum and instructional content are now prohibited; under ESSA, the federal government cannot even endorse any curriculum.12

    State Tests

    Many stakeholders have spoken out against the heavier emphasis on standardized testing as test scores gained greater significance in evaluating schools, districts, and teachers. Despite the intense national concern about overtesting,13 perhaps the area least changed by ESSA is the system of standardized testing used to measure progress toward state achievement goals.

    Jessica E. OzalpJessica E. Ozalp, U.W. 2011, is an attorney with the Wisconsin Legislative Council, Madison, where she provides legislators with nonpartisan legal and policy research services, and staffs legislative standing committees on education and workforce development.

    Rachel E. SnyderRachel E. Snyder, U.W. 2014, is also an attorney with the Wisconsin Legislative Council, Madison, where she provides legislators with nonpartisan legal and policy research services, and staffs legislative standing committees on education, family law, and tourism.

    Under ESSA, as under NCLB (and NCLB waivers), states must test every student in reading and mathematics, every year in grades 3-8 and once in high school. States must also administer science tests at least once in elementary school, once in middle school, and once in high school.14 Under Wisconsin law, schools must administer state tests that measure “pupil attainment of knowledge and concepts” in grades 4, 8, 9, 10, and 11.15 Some of the federal and state testing requirements overlap, and some do not. Where there is overlap, the administration of one test may satisfy both federal and state requirements.

    2015 Efforts by the Wisconsin Legislature. Under the 2011-13 biennial budget, the Legislature directed the Superintendent to select and administer a standardized test developed by the Smarter Balanced Assessment Consortium or another entity beginning in the 2014-15 school year.16 Superintendent Evers selected the Badger Exam, which was administered for the first and only time in the spring of the 2014-15 school year.

    In the 2015-17 biennium, the Legislature considered several changes to the state testing system. Due to a variety of concerns, including logistical testing difficulties and opposition to Common Core, the Legislature prohibited the use of Smarter Balanced tests beginning in the 2015-16 school year.17 Superintendent Evers replaced the Badger Exam with the Wisconsin Forward Exam, which was administered for the first time in spring 2016.

    Testing under ESSA

    How Often to Test. Although ESSA kept NCLB’s yearly testing schedule, the U.S. Department of Education has issued guidance urging Congress and the Obama administration to address overtesting. ESSA encourages states to reduce time spent on testing beyond federal requirements, by providing funds for state-led audits of time spent on local and state tests.18States can choose to eliminate local tests deemed not to contribute to student learning and set a cap on the percentage of instructional hours spent testing students.

    Which Test. Common Core-aligned tests, like Common Core standards, have recently met significant state resistance. In response to this concern, ESSA prohibits the U.S. Department of Education from developing, sponsoring, or providing incentives for a national test in any subject unless explicitly authorized by law.19 Wisconsin is not the only state that has recently replaced Common Core-aligned tests.20 ESSA could lead to more states going in this direction.

    How Scores Are Used. Under ESSA, states can choose not to weigh test scores as heavily as NCLB required them to in evaluating the performance of schools, school districts, and teachers.21 The methodology and formulas for these calculations in state accountability systems are beyond the scope of this article, but it is important to note ESSA permits states to reduce the emphasis on test scores for accountability purposes. The new law also lets states determine their own targets for academic performance as measured by state tests. Similar to NCLB, ESSA requires states to identify the lowest performing five percent of schools and identify high schools failing to graduate at least two-thirds of students.22 Unlike NCLB, ESSA allows states to decide for themselves how to address these deficiencies. Thus, this article describes Wisconsin’s accountability system mainly in terms of corrective action for low-performing schools.

    Opting Out of State Tests. NCLB and NCLB waivers required each state to test a minimum of 95 percent of students and did not explicitly grant parents or students the ability to opt out of taking the tests. However, Wisconsin law requires schools to excuse a student from taking the state-required tests administered in grades 4, 8, 9, 10, and 11 upon student or parental request.23

    In 2015, legislation was introduced to expand the opt-out provision to require that schools excuse students from taking any state or federally required test administered in grades 3-12, except for the high school graduation exam.24 As the bill worked its way through the Assembly, concerns were raised that allowing additional opt outs could put Wisconsin at risk of not testing 95 percent of students statewide. Not meeting this requirement could put federal funding at risk. Ultimately, the bill passed the Assembly but not the Senate.

    ESSA recognizes local flexibility to permit individual opt outs, without removing the state’s obligation to test 95 percent of students in the state.25 While retaining the NCLB testing requirements, it also explicitly recognizes a parent’s right to decide to opt out as permitted by state or local law.26 Therefore, it is possible that the opt-out bill or a similar proposal could have new life in the Wisconsin Legislature.

    Accountability System and Interventions

    Accountability Under NCLB. Under its NCLB waiver, Wisconsin adopted an accountability index designed to measure student growth and achievement. This system was enacted into state statute to fulfill federal obligations. Based on student data, annual “report cards” rate schools and school districts using five performance categories. The Superintendent must annually identify low-performing schools and school districts and make recommendations for improving them. School boards must take certain actions to correct poor performance, and the Superintendent can require certain additional interventions.27

    2015 Legislative Proposals. Despite the adoption of the accountability system, significant achievement gaps have persisted in Wisconsin. During the 2015-16 session, members of the Legislature passionately debated the efficacy of the accountability system, focusing on the measures used to track student academic achievement and the interventions used to address low performance.

    In both the Assembly and the Senate, legislators prioritized revisions to the statewide school accountability system as the very first bills offered in the 2015-17 biennium (Assembly Bill 1 and Senate Bill 1). Both bills would have modified the report card system and vested monitoring authority in an entity other than the Superintendent.

    Despite the intense national concern about overtesting, perhaps the area least changed by ESSA is the system of standardized testing used to measure progress toward state achievement goals.

    However, the two houses disagreed about how to address poor performance. The Assembly bill authorized the use of sanctions against low-performing schools, such as converting them to charter schools. Instead of sanctions, the Senate bill required low-performing schools and school districts to develop improvement plans that included certain interventions and imposed fiscal consequences for failing to comply with the plan.28

    Ultimately, the Legislature did not enact either bill, and the state-required interventions remain unchanged. Instead, minor changes were made to the report card system through the 2015-17 biennial budget. Specifically, the budget added items to the list of student measures used to assess school and school districts and required that they be disaggregated by subgroup. The budget also introduced a five-star rating system corresponding to the existing performance categories, and, beginning with the 2015-16 school year, required that choice schools and independent charter schools receive report cards rating them according to the same performance measures.29

    Accountability Under ESSA. ESSA reduces the role of the federal government in dictating corrective action in low-performing schools, giving states more flexibility to modify their existing accountability systems. ESSA replaces federal sanctions and federally determined interventions with a state-led plan for persistently low-performing schools. States will work with schools and local districts to develop achievement goals and improvement plans.30 Interventions will be localized, created bottom-up instead of top-down, with states merely reporting to the federal government what local schools did with the intervention funds.31 ESSA limits the ability of the U.S. Secretary of Education to reject or place conditions on the approval of state plans,32 implementing a state peer-review process instead.

    The proposals advanced in 2015 show the Legislature’s eagerness to make more significant changes to the state accountability system. Given that only minor changes passed in 2015, lawmakers may take the opportunity offered by ESSA to explore redesigning the state accountability system when the Legislature reconvenes.

    Waivers from No Child Left Behind

    In most states, agreements with the U.S. Department of Education actually govern compliance with No Child Left Behind (NCLB). In 2011, with reauthorization still stalled and more states falling short of NCLB goals, the Obama administration implemented waivers to NCLB (officially known as “ESEA flexibility”).

    Wisconsin, like most states, signed a waiver agreeing to implement an approved accountability plan and meet certain conditions in exchange for exemption from the NCLB’s more stringent requirements. With ESSA taking effect, all state waivers expire Aug. 1, 2016, and the Secretary of Education is prohibited from implementing this type of conditional agreement going forward.

    Teacher Licensing and Evaluation

    Teacher Licensing. In an effort to afford all students access to a high-quality education, NCLB and NCLB waivers required states to ensure that teachers of core academic subjects33 were highly qualified. To be highly qualified, teachers were required to have 1) a bachelor’s degree, 2) full state certification or licensure, and 3) subject-matter competency.34

    In Wisconsin there are several ways for a teaching license applicant to prove satisfactory completion of licensure requirements, referred to as “pathways to licensure.”35 In 2015, satisfying federal “highly qualified” requirements was often a concern as the Legislature sought ways to help school districts address teacher shortages by creating alternative or additional pathways to licensure.

    Ultimately, the Legislature created four additional pathways to licensure. It expanded licensure options for teaching industrial arts, technical education, and vocational education, and it created an opportunity for a teacher licensed in another state to obtain Wisconsin licensure by reciprocity and created a specific license for teaching in Montessori schools.36

     ESSA eliminates the “highly qualified teacher” requirement,37 leaving teacher licensing requirements to the discretion of each state. As a result, the Wisconsin Legislature will have more flexibility to act as it seeks to balance access to uniform, high-quality education with the need to address increasing teacher shortages. The Legislature may take the opportunity to redesign educator licensing requirements in the next half of the biennium.

    Teacher Evaluation. Under the accountability provisions of its NCLB waiver, Wisconsin established and codified its “Educator Effectiveness” evaluation system.38 The waiver required an educator evaluation system that used multiple measures of performance, including student test scores, to assess educator performance. The system was designed to provide educators with regular feedback that could be used to inform and improve their performance as teachers and principals. ESSA does not require that states maintain an educator evaluation system,39 so the Legislature will have the opportunity to decide whether to retain Educator Effectiveness.


    States will have 18 months to transition to the new school accountability law. As federal rulemaking wraps up, guidelines and suggestions for state implementation will emerge during the summer of 2016. In revisiting school accountability decisions, Wisconsin and other states will enjoy an increased measure of self-determination in designing education systems to best develop our most precious resource: the next generation.

    Meet Our Contributors

    If you could pick a superpower, what would it be?

    Jessica E. OzalpI think I’d choose to be able to live without sleep. I’d gain precious hours each night to sit uninterrupted with the many neglected books on my library shelves. I could learn new languages, Skype more often with my friends and family living in distant time zones, and perhaps even find time to keep my house clean. It would be marvelous to actually feel rested during the day, as I’m guessing all lawyers would wistfully agree. I wouldn’t need to drink so much coffee all the time, although I probably still would for the pleasure of it. This superpower wouldn’t bring all the unwanted attention or pesky moral dilemmas that come with flashier abilities.

    Jessica E. Ozalp, Wisconsin Legislative Council, Madison.

    How did you find your way to your current position?

    Rachel E. SnyderA combination of networking, external support, and serendipity. As an undergraduate, I worked for an adjunct professor who owned a small law firm, and I had zero interest in becoming a lawyer. Small- town private practice was not for me. Likewise, I could not be a classroom teacher, but I loved education and hoped to find a job that somehow supported education. My professor encouraged me to attend law school, predicting that I would fit best in a government agency, but I stubbornly refused.

    After two years of unsatisfying work, I needed a change. Law school became an appealing opportunity to shake things up. Thankfully, my husband was supportive, my undergraduate professor graciously wrote a recommendation letter, and I was accepted to law school.

    Without a plan, I took all the education and administrative law classes that I could. A series of government-related internships, each one leading to the next, introduced me to the Wisconsin Legislative Council. Just before graduation, a position opened up. I now help inform state policymaking decisions by providing legislators with nonpartisan legal and policy research services, I work with the Legislature’s education-related committees, and I help review administrative rules through the Wisconsin Legislative Council’s Administrative Rules Clearinghouse.

    I am incredibly grateful for my current position and the people who helped me get here. It is a great privilege to truly enjoy my job, to learn new things each day, and to know that my work can positively impact my community.

    Rachel E. Snyder, Wisconsin Legislative Council, Madison.


    1 Every Student Succeeds Act, Pub. L. No. 114-95, 129 Stat. 1802 (2015) [hereinafter Pub. L. No. 114-95].

    2 Press Release, Senator Lamar Alexander (Chair, Senate Education Committee), House-Senate Conference Committee Begins Process to Fix No Child Left Behind, a “Law That Everyone Wants to Fix” (Nov. 18, 2015).

    3 Wisconsin has had direct involvement in the ESSA negotiated-rulemaking process. Committee materials can be found on the U.S. Department of Education’s website.

    4 Wis. Dep’t of Public Instruction, Promoting Excellence for All: A Report from the State Superintendent’s Task Force on Wisconsin’s Achievement Gap 8 (Sept. 2014).

    5 See, e.g., Press Release, Wis. Dep’t of Public Instruction, Grant Awarded to DPI and UW to Address Achievement Gaps (Dec. 17, 2015).

    6 “Adequate yearly progress,” or AYP, was the “yardstick” at the heart of NCLB. It represented quantified annual achievement targets for each state that were based on standardized test scores and used yearly to quantify and track growth in student achievement at each school district and school. NCLB imposed sanctions on states where growing percentages of schools did not meet AYP. See Accompanying sidebar, Waivers from No Child Left Behind. See also Alyson Klein, No Child Left Behind: An Overview, Ed. Week (April 10, 2015).

    7 The Superintendent adopted the Common Core State Standards as the state model academic standards. Most school districts adopted the state model academic standards. See Jessica E. Ozalp, The Common Core State Standards in Wisconsin, Information Memorandum of the Wisconsin Legislative Council (Feb. 13, 2015).

    8 For more on state trends, see Madeleine Webster & Daniel Thatcher, Common Core State Standards: Answers to Legislators’ Frequently Asked Questions, Nat’l Conference of State Legislatures (2014).

    9 Wis. Stat. § 115.293, as affected by 2015 Wis. Act 55 (eff. July 14, 2015).

    10 Pub. L. No. 114-95, § 1005, 129 Stat. at 1852.

    11 129 Stat. at 1824-25. The law also requires the standards to align with state university and technical education entrance requirements but prohibits construing this requirement to allow public institutions of higher education to control the specific set of standards that states should adopt. Id.

    12 Pub. L. No. 114-95, § 8023, 129 Stat. at 2113.

    13 SeeJulie Rowland-Woods, Testing Trends: Considerations for Choosing and Using Assessments, Ed. Trends (Ed. Commission of the States), Nov. 2015, observing that “[t]oday’s testing landscape is the result of decades of bipartisan efforts to ensure that all students are on track for success. Yet concerns with over-testing, teaching to the test and recognizing that students are more than a test score loom large for parents and policymakers alike.”

    14 Pub. L. No. 114-95, § 1005, 129 Stat. at 1825-26.

    15 Wis. Stat. § 118.30(1).

    16 2011 Wis. Act 32, § 9137(1u)(a).

    17 Wis. Stat. § 118.30(1).

    18 Pub. L. No. 114-95, § 1201, 129 Stat. at 1881.

    19 Id. § 8026, 129 Stat. at 2115.

    20 Webster & Thatcher, supra note 8.

    21 ESSA prohibits the Secretary from “prescribing the weight of any measure or indicator used to identify or meaningfully differentiate schools” or prescribing the specific methodology used by states to do so. It also prohibits prescription of “any aspect or parameter of a teacher, principal, or other school leader evaluation system within a state or local education agency.” Pub. L. No. 114-95, § 1005, 129 Stat. at 1842-43.

    22 129 Stat. at 1837.

    23 Wis. Stat. § 118.30(2)(b)3.-6. The opt-out was first enacted into law in 1993, for 8th and 10th graders. The 1995 budget extended the opt-out to other grades.

    24 2015 Assembly Bill 239.

    25 Pub. L. No. 114-95, § 1005, 129 Stat. at 1833, 1837. Each state must include in its state plan an explanation of how the state will factor the 95 percent requirement into its accountability system.

    26 Id. ESSA provides that it cannot be construed as preempting a state or local law regarding the decision of a parent to opt a child out of federally required standardized tests. At the same time, it allows the Secretary to withhold federal funds if a state fails to meet any of the assessment requirements.

    27 Wis. Stat. §§ 115.38, 115.385, 118.42.

    28 2015 Assembly Bill 1; 2015 Senate Bill 1.

    29 2015 Wis. Act 55, §§ 3194-3205, 3208.

    30 ESSA puts state agencies (in Wisconsin, the DPI) in control of developing the state plan, in consultation with their state governors and legislatures, and with stakeholders such as school districts, teachers, administrators, and parents. Each state plan must be published for public comment for 30 days before the agency submits it to the federal government. Pub. L. No. 114-95, § 1005, 129 Stat. at 1820-23.

    31 Pub. L. No. 114-95, § 1003, 129 Stat. at 1815-17.

    32 The U.S. Secretary of Education is authorized only to ensure that the plan is consistent with the law. Pub. L. No. 114-95, § 8014, 129 Stat. at 2107-08.

    33 Core academic subjects were defined to include English, reading and language arts, mathematics, science, world languages, civics and government, economics, arts, history, and geography. No Child Left Behind Act of 2001, Pub. L. No. 107-110, § 901, 115 Stat. 1425, 1958 (2002).

    34 Id.

    35 Wis. Dep’t of Public Instruction, Pathways to Licensure (last visited May 4, 2016).

    36 2015 Wis. Act 55, §§ 3247gb, 3247p-3247s; 2015 Wis. Act 259.

    37 Pub. L. No. 114-95, §§ 9212, 9214, 129 Stat. at 2159, 2160-66.

    38 Wis. Stat. § 115.415.

    39 States may opt to continue to use federal funds to continue these programs, but they will no longer be required as a condition of receiving federal funds. In fact, ESSA explicitly prohibits the Secretary of Education from mandating any aspect of a teacher evaluation system. Supra note 21.

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