"Negotiated rulemaking" and its role in ESSA

In addition to releasing guidance on assessments (my previous post), the US Department of Education (ED) announced last week that it will engage in "negotiated rulemaking" for the Every Student Succeeds Act (ESSA).

Negotiated rulemaking is a process where ED appoints people to serve on a committee to help develop regulations, as opposed to "regular rulemaking" which is undertaken by ED staff. Negotiated rulemaking is intended to increase the likelihood that regulations will be accepted by all interested parties, in part by having them at the table during regulation development.

ESSA requires ED to use negotiated rulemaking in the areas of:

  • assessments,
  • standards, and
  • the "supplement not supplant" provision (which involves funding).

Individuals appointed to the Negotiating Committee will represent a broad range of constituencies, including state and local educators, administrators, civil rights organizations, parents, students, the business community, and more. The negotiators selected to serve on the committee will convene for up to 3 multi-day meetings that will conclude by the end of April.

The committee will address several issues related to assessments, including:

  • district flexibility to use a locally selected assessment in high schools for accountability purposes instead of the statewide assessment;
  • inclusion of students with disabilities in academic assessments, including alternate assessments based on alternate academic achievement standards for students with the most significant cognitive disabilities;
  • inclusion of learners of English in academic assessments and English language proficiency assessment;
  • computer-adaptive assessments.

It's interesting to note that even though ED has the authority to use negotiated rulemaking to regulate on academic standards, the issue is not included within the announcement - could this, perhaps, be a signal that ED is unlikely to regulate in this area?

For the other provisions under ESSA, such as accountability, ED will go through the regular rulemaking process (which does not include a negotiating committee), most likely this spring.

ED will take nominations for members of the Negotiating Committee until February 25 and will only consider nominations from those individuals or organizations that responded to last month's request for information (RFI) on ESSA regulations.

More information on the negotiated rulemaking process may be found HERE (beginning in middle of second column).