Elementary and Secondary Education Act: Potential Options for Altering Regulations Issued by the Obama Administration

Elementary and Secondary Education Act: Potential Options for Altering Regulations Issued by the Obama Administration

Updated December 15, 2016
Elementary and Secondary Education Act: Potential Options
for Altering Regulations Issued by the Obama Administration
Following the comprehensive reauthorization of the
Recently, there has been congressional interest in options
Elementary and Secondary Education Act (ESEA) by the
for modifying or rescinding any final regulations issued by
Every Student Succeeds Act (ESSA; P.L. 114-95) on
ED. Assuming that ED promulgates final regulations in any
December 15, 2015, the U.S. Department of Education
of these four areas, there are likely several options available
(ED) has acted to promulgate regulations to accompany the
to Congress and the new Administration for altering or
new statutory provisions. ED has focused its ESEA
repealing the regulations, including making changes
regulatory actions primarily on Title I-A of the ESEA.
through appropriations acts, invoking the Congressional
Review Act, taking other legislative action, or making
Title I-A of the ESEA authorizes aid to local educational
changes administratively. Each of these options is discussed
agencies (LEAs) for the education of disadvantaged
briefly below.
children. Title I-A grants provide supplementary
educational and related services to low-achieving and other
Appropriations Acts
students attending pre-kindergarten through grade 12
The Labor, Health and Human Services, and Education, and
schools with relatively high concentrations of students from
Related Agencies (LHHS) bill provides discretionary
low-income families. Title I-A has also become a vehicle to
appropriations for programs administered by ED. Congress
which a number of requirements, such as accountability
could include language in the LHHS bill to prohibit ED
requirements, affecting broad aspects of public K-12
from using any of the fiscal year’s funds to implement the
education for all students have been attached as a condition
aforementioned regulations, should they be finalized. Such
for receiving Title I-A grants.
action would prevent ED from enforcing the regulations
during the fiscal year covered by the appropriations bill.
Since the passage of the ESSA, there are four primary areas
This approach, however, would not officially rescind or
in which ED has proposed ESEA regulations: (1) Title I-A
modify the regulations. It would only prevent ED from
accountability, state plans, and data reporting provisions
implementing the regulations during the relevant fiscal
(hereinafter referred to as accountability provisions); (2)
year. If Congress wanted to also rescind or modify the
Title I-A assessment provisions; (3) Title I-B Innovative
regulations, this could be done through additional
Assessment Demonstration Authority; and (4) Title I-A
provisions in the LHHS bill or through other legislative
supplement, not supplant (SNS) provisions.
action (see below).
The proposed accountability regulations and Title I-B
Congressional Review Act (CRA)
regulations were developed by ED and posted in the
The CRA is an oversight tool that Congress (with the
Federal Register for public comment on, respectively, May
approval or a veto override of the President) may use to
31, 2016, and July 11, 2016. As required by law (ESEA,
overturn a rule issued by a federal agency such as ED. The
Section 1601), regulations related to the Title I-A
CRA can be used only to invalidate final rules in their
assessment and SNS provisions were considered through a
entirety. For example, Congress would not be able to retain
negotiated rulemaking process (NRMP) during March and
some of the finalized accountability regulations and
April 2016. During these sessions, the negotiated
eliminate others through the use of the CRA. When a CRA
rulemaking participants reached agreement on the proposed
resolution meets certain criteria, it cannot be filibustered in
assessment regulations but not on the SNS regulations. As a
the Senate. CRS estimates that agency final rules submitted
result, the proposed assessment regulations published in the
to Congress—as required by the CRA—after June 2, 2016,
Federal Register on July 11, 2016, mirrored those agreed
may be subject to disapproval under the CRA in 2017. (The
upon during the NRMP. However, agreement was not
House and Senate Parliamentarians make the final
reached on the SNS regulations. In the event of a lack of
determination on the applicable date.) Thus, any final
consensus, the NRMP provisions authorize ED to offer its
regulations issued by ED prior to the end of the Obama
own version of proposed regulations, and ED proposed
Administration could be subject to disapproval under the
such regulations for SNS in the Federal Register on
CRA in the next Congress. If the CRA were used
September 6, 2016.
successfully to block a rule, the rule would not take effect,
and ED would be prohibited from issuing a substantively
The Obama Administration published final regulations
similar rule.
related to the Title I-A accountability provisions on
November 29, 2016, and the Title I-A and Title I-B
For a more detailed discussion of the CRA and how it
assessment provisions on December 8, 2016. It has until the
functions, see CRS Report R43992, The Congressional
end of its current term to publish any additional final
Review Act: Frequently Asked Questions, by Maeve P.
regulations.
Carey, Alissa M. Dolan, and Christopher M. Davis, and
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Elementary and Secondary Education Act: Potential Options for Altering Regulations Issued by the Obama Administration
CRS Insight IN10437, Agency Final Rules Submitted on or
issue non-regulatory guidance to assist the SEAs in
After June 13, 2016, May Be Subject to Disapproval by the
preparing their state plans and designing their
115th Congress, by Christopher M. Davis and Richard S.
accountability systems.
Beth.
Issues may also arise if Congress or the Administration
Other Legislative Action
rescinds an entire set of final regulations. Under the CRA,
Congress always has the option to pass legislation that
Congress is only able to consider final regulations in their
could change the ESEA or clarify how Congress intends for
entirety. For example, if Congress successfully rescinded
the ESEA to be implemented. For example, Congress could
finalized accountability regulations through the CRA, the
rescind a specific ED rule, rescind part of a specific ED
regulations pertaining to Title I-A would revert back to the
rule, limit ED’s authority to reissue a rule in a particular
regulations that predate the amendments made by the
area, or withdraw ED’s authority to regulate in a particular
ESSA. That is, the regulations in place prior to the
area. Such legislation would take precedent over any
enactment of the ESSA would continue to be in effect as
regulations issued by ED, should there be a conflict. If
long as there were a statutory basis for the regulations. For
Congress acted to modify or rescind any finalized
example, while regulations pertaining to adequate yearly
regulations, depending on the legislative language, ED may
progress (AYP) would no longer be relevant, there may be
not have to officially delete or modify the specified
other regulations that could continue to apply to Title I.
regulations.
Thus, ED would have to review each regulatory provision
to determine whether it was still valid or not.
Administrative Action
The new Administration could act to modify or rescind any
It is possible that there may be parts of any final ESEA
finalized regulations issued under the Obama
regulations promulgated since the enactment of the ESSA
Administration. ED could not, however, simply announce
that Congress would be interested in maintaining. If this
that a particular finalized regulation or set of regulations
were the case, it could make more sense to address the issue
had been modified or rescinded. Instead, ED would be
through a separate bill rather than the CRA. If Congress
required to follow the same notice and comment
needed time to develop a separate bill, it could prohibit ED
rulemaking procedures that it used to issue the regulations.
from using funds to implement the regulations in the
meantime. If this approach were taken, however, SEAs may
In addition, the negotiated rulemaking provisions of the
lack information needed to prepare their state plans and
ESEA require that unless the Secretary determines that the
design their accountability systems. One option would be to
NRMP is “unnecessary”—a term that has been narrowly
delay the implementation of the ESSA provisions until
construed in the administrative law context—the process
changes to the regulations are finalized and the SEAs have
shall follow the Negotiated Rulemaking Act (NRA). The
time to process the new requirements. Another option
NRA authorizes negotiated rulemaking and, in turn, adopts
would be for ED to issue guidance to assist SEAs in
the Administrative Procedure Act’s definition of
developing their state plans and accountability systems.
rulemaking, which states that “‘rule making’ means agency
process for formulating, amending, or repealing a rule.”
Congress or the new Administration could also act to
Thus, with respect to the Title I-A regulations, it appears
modify or rescind the proposed SNS regulations if they
likely that ED would have to reengage in the NRMP to
become final. There are currently no SNS regulations in
repeal or modify any final assessment or SNS regulations.
force, so rescinding any final rules promulgated by the
Obama Administration or making changes to the
Issues to Consider
regulations would not result in older regulations remaining
Should Congress or the new Administration choose to act in
in effect. In addition, the new SNS provisions are not
some way to modify or repeal any final regulations issued
statutorily required to take effect until December 2017, so
by the Obama Administration with respect to Title I-A
LEAs may have some time to adjust to any new
accountability, assessments, or SNS provisions, there are
requirements in this area if changes are made in early 2017.
some issues to consider. In order to receive a grant under
Title I-A for FY2017, state educational agencies (SEAs) are
CRS Experts
required to submit a state plan in the first half of 2017. As
ESEA: Rebecca Skinner; Jody Feder (legal issues)
part of this plan, the SEA is required to describe the
educational accountability system it will use and the
CRA: Maeve Carey (agency compliance/history); Chris
assessments that will be administered. If the Obama
Davis or Richard Beth (procedures); Alissa Dolan (legal
Administration were to promulgate final rules and Congress
issues)
or the next Administration were to modify or repeal any of
those regulations, it could cause confusion among the SEAs
Administrative law: Todd Garvey; Jared P. Cole
with respect to what they are required to include in their
state plans, assessments, and accountability systems. This
Rebecca R. Skinner, Specialist in Education Policy
confusion could be minimized if Congress were to act
Jody Feder, Legislative Attorney
quickly to enact clarifying legislation, if the new
Administration were able to rapidly promulgate new or
IF10510
revised regulations, or if the new Administration were to

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Elementary and Secondary Education Act: Potential Options for Altering Regulations Issued by the Obama Administration

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