New Law, Same Story: Fed Ed Tyranny Continues Under ESSA


The Every Student Succeeds Act (ESSA) passed Congress in 2015 despite the strong protests of more than 200 organizations and leaders after claims by leadership about the legislation:

  • “Prohibiting the Secretary of Education from forcing, coercing, or incentivizing states into adopting Common Core”
  • “Ending the era of federally mandated high-stakes tests”
  • “Eliminating the federally mandated one-size-fits-all accountability system”

All of these claims were false then and continue to show themselves false now. Even though ESSA prohibits the secretary of education from incentivizing or coercing Common Core, that is closing the barn door after the horse is already gone. There is no enforcement mechanism, most states have already adopted Common Core, any state standards changes have been purely cosmetic, and the law itself still requires Common Core or standards very much like them, as admitted by former Obama education officials, so it is irrelevant what the secretary does in the future.

One of the other biggest concerns by both citizens and state and local officials was the continued oppressive control over state and local education by the federal government — features remaining from ESSA’s predecessor, No Child Left Behind. One of the biggest and strongest objections was the law giving the education secretary veto power over state plans.

The latest example of federal tyranny in this area is the written threat by Frank Brogan, assistant secretary of elementary and secondary education, to withhold $340 million of Title I funds from Arizona because the state is not toeing the federal line in technical requirements for a waiver to offer a different high school test — the ACT or SAT — in place of the Arizona statewide standardized test for high school math, English and science.

In 2017, Alabama also wanted a one-year waiver from federal testing requirements while it sought to develop or purchase a new test to replace the highly unsatisfactory ACT Aspire. The Aspire was not providing questions to schools and teachers to give them an idea about how to help students improve. However, the Alabama request was denied by then Acting Deputy Secretary Jason Botel, a Common Core and social justice supporter, who eventually left USED. Nevertheless, Alabama proceeded on their own to use a different test — Scantron, formerly Global Scholar, which had already been in wide use in Alabama as an interim assessment for its statewide test — while the next test is chosen for the 2020 administration.

Utah also applied for a waiver on ESSA’s 95-percent testing participation mandate. As explained by Jane Robbins, the waiver was requested because:

…state law specifically protects the rights of parents to opt their children out of statewide assessments. It also forbids the State Board of Education from imposing negative consequences on schools or employees because of the number of opt-outs.

One reason for the rising opt-out numbers is discontent with the SAGE (Student Assessment for Growth and Excellence) test. SAGE was developed for Utah by the American Institutes for Research, which is not an academic-assessment company but rather a behavioral-research organization. In increasing numbers, parents have concluded they don’t want their children subjected to problem-riddled testing that hasn’t been proven academically valid – especially when, as shown by Dr. Christopher Tienken, Common Core testing is designed more to centralize control over education policy than to benefit student learning.

The clash here, then, was between parents’ inherent right to govern their children’s education and indeed protect them from harm, as explicitly protected by state law, and federal mandates. Guess which won?

On May 31 the U.S. Department of Education (USED) denied the request for a waiver. USED found that a waiver wouldn’t “advance academic achievement” as required by the statutory waiver provision, because failure to force test participation would mean not all students were subjected to federally incentivized standards and federally mandated tests. 

Making things worse, after the first denial, Utah tried and was denied a second time, followed up by a threatening letter by Secretary DeVos. Then, the state superintendent and one state board member refused to stand for parents or the state and federal constitutions and capitulated to these tyrannical federal demands via Utah’s ESSA state plan. According to a pro-parental rights state school board member, Michelle Boulter, elected in 2016:

The Superintendent and the Board Chair acted independently of the elected board. In short, the public was not given the chance to weigh in on the ESSA plan because those who were elected to represent them were never given the chance to see or to vote on the new plan. Instead, administration and a single board member presented a plan to the federal DOE that puts it in direct conflict with Utah State law–a state law which prohibits the violation of natural parental rights. In the end, after being denied repeatedly, Utah became fully compliant with Federal dictates, setting aside the promise of the state’s ability [claimed by congressional leaders] to forge their own educational path.

The sad and ironic aspect of all three of these cases is that ESSA says that the most that can be withheld for failure to comply is administrative funds, which generally amounts to about 2 to 3 percent of states’ education budgets:

ESSA 1111(a)(7) FAILURE TO MEET REQUIREMENTS.—If a State fails to meet any of the requirements of this section [1111(a) State Plans], the Secretary may withhold funds for State administration under this part  until the Secretary determines that the State has fulfilled those requirements.

Arizona, Utah, Alabama and every other state should call the feds’ bluff. Senator Lamar Alexander urged the states to take USED to court if they are not providing promised flexibility. Voters should respectfully remind the president of his promises to rein in the size and scope of the U.S. Department of Education and that his current education secretary has done little to help him keep those promises. Congress needs to repeal ESSA. The rights and welfare of American students, parents and teachers depend on these actions.

Karen R. Effrem, MD

Dr. Karen Effrem and her husband have three children. She is trained as a pediatrician and serves as national education issues chairman for Eagle Forum and president of Education Liberty Watch.

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