Live from DC: Negotiated Rule Making and Rube Goldberg Machines

As the second block of the U.S. Department of Education’s ESSA Negotiated Rulemaking Committee’s meetings wraps up, I can’t help but compare the whole process to a giant Rube Goldberg machine (for one of the best in recent memory, watch OK GO’s music video “This Too Shall Pass”).

Before I elaborate, let me start with why I’m even here in the first place. NACSA joined a group of stakeholders to successfully nominate a charter/authorizer representative to the committee. Now that negotiations have begun, we are working with this representative to ensure the needs of authorizers are met as the committee discusses regulations concerning assessments and funding provisions.

These issues will ultimately impact a diverse array of authorizer responsibilities including the appropriate selection and use of annual assessments, school compliance with parental notification provisions, and how charter schools demonstrate they are using Title I funds appropriately.

But back to the Rube Goldberg machine. Our goal is to tinker with only the very first movement (say, the red car in the video above): we are trying to make the one change that will set off the right chain of events so we can ensure charter school accountability at the end of the day.

So what first piece is the Committee looking at right now? And how could that impact authorizers in the future when ESSA is in place?

NACSA and our recently formed ESSA Advisory Group is most interested in a brand new provision in ESSA: the ability of Local Education Agencies (LEAs) to select and use a nationally recognized academic assessment in high schools (such as the SAT or ACT) instead of the traditional state high school assessment. The ability to use this substitute assessment is not universal—a state has to choose to allow this flexibility and then must establish a system to evaluate and approve LEA requests.

This week, the Committee is looking at regulations for two of the “quality control mechanisms” for this new systems: the definition of the term “nationally recognized high school academic assessment,” which will determine what and how many potential types of assessments could be used, as well as the rules governing the process States and LEAs must use to approve assessment use and notify parents and the public.

Getting these regulations right is really important.

As any authorizer knows—especially those going through assessment transitions in their state right now—when you modify assessments, you modify one of the bases of charter school accountability. If a contract says “you need a 90 percent score on Assessment A”, but Assessment A is no longer given, you are in a bind.

The right regulations can make this easier. Regulations can make sure this contractual accountability is preserved by, for example, making sure that an authorizer is consulted before the assessment change is approved. Regulations can also preserve important autonomy (and contractual accountability) for charter schools in the event a traditional LEA wants to make an assessment change that, as a result, all non-LEA charter schools in its district would be required to use.

So as I sit through what at times seems like an endless series of meetings, Milton Bradley’s Mouse Trap is continually on my mind. We’re here in Washington this week to set the machine in motion in the right way so that authorizers can enforce charter school accountability two, five, ten years down the road.

Now, do I want to use the marble or the domino to start this machine?