After nearly two months of negotiating behind closed doors, Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash., the chairman and ranking member of the education committee, appear to be nearing consensus on major pieces of a bipartisan draft to overhaul the Elementary and Secondary Education Act, according to sources.
In what seems to be a departure from Alexander's original draft legislation, unveiled in January, the version being negotiated likely wouldn't allow Title I dollars for low-income students to follow them to the school of their choice, sources said.
The elimination of that language would be a big win for Murray, and especially for the Obama administration, which has all but said it would veto any bill that included the provision, known as "Title I portability." In their view, that would funnel resources out of poor communities and into wealthier ones.
Still, Title I portability is a big priority for Republicans in a rewrite of the ESEA, the current version of which is the No Child Left Behind Act. Some, including Sen. Tim Scott, R-S.C., would like to see such a provision pushed even farther to allow Title I dollars to also be used at private schools.
In addition, the version being discussed in negotiations that are slated to continue throughout the weekend would maintain the annual federal testing schedule, sources said. Currently, states are required to test students every year in math and English/language arts in grades 3 through 8 and once in high school, and also in science once in grades 3 through 5, once in grades 6 through 8, and once in high school.
Alexander's original draft included two testing options: stick with the annual testing regimen, or give states lots of leeway in how they assess students. The latter option would have allowed states to essentially go their own way on testing, whether that meant testing only in certain grade spans, using portfolios, combining the results of different formative assessments, or trying out competency-based tests, to name a few things.
Still, sources said, the compromise that's under discussion would provide some additional flexibility on testing through a limited pilot program that would allow states and school districts to develop innovative assessments.
The other half of the testing debate has to do with accountability. And at first blush, it seems as though Murray would come up somewhat short on her wish for a more-robust accountability system than what Alexander had included in his original draft.
Under the evolving draft, sources said, states would still need to disaggregate student data to help compare subgroups of students, including minorities, low-income students, English-learners, and those with disabilities. And they would still need to report graduation rates. But, as under Alexander's original draft, states would be able to create their own accountability systems, without the education secretary's hands-on involvement.
Murray has been firm in saying that states need to be held accountable for the billions of taxpayer dollars that they're sent each year, something that Alexander's previous draft, she has said, doesn't do.
However, it sounds like Murray would eke out something of a win on her demand that early-childhood education be included in the NCLB rewrite, according to sources. The version being negotiated doesn't appear to include anything as significant as an entirely new title authorized for billions of dollars, but it would list early-childhood education as an allowable use of funding for a broad swath of programs in the ESEA. That wouldn't be a major departure from current law, but it would provide more specificity.
And the evolving discussions could also produce a competitive grant program that would allow states to better coordinate their early-childhood education programs in order to increase quality and access. Of course, as with any authorization, there's no guarantee Congress would actually provide the funding for that program.
Murray, a former preschool teacher, and the administration have pushed hard to merge early education into the federal K-12 law. In fact, U.S. Secretary of Education Arne Duncan said just last week that it was the administration's No. 1 priority for a rewrite of the law.
In a speech on March 24, Alexander was adamant that he'd prefer to reorganize the $22 billion that already goes to federal early-education programs rather than adding new language to law.
The negotiations are still a work in progress, and the details are likely to continue to evolve before the education committee marks up a bill the week of April 13. Among the other apparent areas of agreement, sources said, are provisions that would:
It's important to remember that an Alexander/Murray draft would be just the first step in a lengthy Senate legislative process. Lawmakers on both sides of the aisle would have the opportunity to try to add language to or eliminate language from a bill during the markup process.
- Maintain the education secretary's waiver authority from provisions of the law, but place limits on tying conditions to waivers.
- Require states to have challenging academic standards, but those standards wouldn't need to be reviewed by the education department.
- Tweak the definition of "supplement not supplant."
- Not close the so-called "Title I comparability loophole."
- Keep in place maintenance of effort, which requires states to keep up their own funding at a particular level in order to tap federal Title I funds, while providing some flexibility for districts.
- Continue to require that schools have at least 40 percent of students in poverty in order to use Title I dollars for programs that benefit the entire school. The Alexander draft—and a bill to rewrite the NCLB law that was debated in the House—would scrap this requirement, allowing any school that gets Title I money to use the funds with all of its students.
Assuming Alexander's committee clears a bill, and assuming it's still bipartisan at that point (and that's a big assumption since Republicans will have the majority numbers to add and eliminate language as they please), it will then be up to Alexander and Murray to work over their caucuses in order to garner enough support for the measure to clear a 60-vote threshold needed to bring the bill to the floor for a vote.
So, will Congress be able to muster enough support to get a rewrite of the NCLB law across the finish line? It's still too early to tell, but that fact that Alexander and Murray appeared to be close to brokering a bipartisan proposal is a big deal.
But there's a major hurdle on the other side of the Capitol—it remains to be seen whether the House will ever reschedule a vote on a Republican-backed bill authored by Rep. John Kline, R-Minn., chairman of the education committee in that chamber.
Kline said last week that he's still not sure he has enough support within his caucus to pass his NCLB rewrite that was pulled from the floor in February amid waning support for the measure. And if the House doesn't move its version of the rewrite, it's hard to imagine Senate Majority Leader Mitch McConnell, R-Ky., would schedule floor time for the Alexander/Murray measure.