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Congressional Leaders Raise Concerns with Integrity of ESSA Negotiated Rulemaking

House Education and the Workforce Committee Chairman John Kline (R-MN)—along with Subcommittee on Early Childhood, Elementary, and Secondary Education Chairman Todd Rokita (R-IN) and Senate Health, Education, Labor, and Pensions Committee Chairman Lamar Alexander (R-TN)—today wrote to the Department of Education to express “serious concerns about the integrity” of the department’s Every Student Succeeds Act (ESSA) negotiated rulemaking process. Among other concerns, the letter raises questions related to the makeup of the rulemaking panel, a lack of rural and student representation in the process, and the accuracy of statements made by the department’s negotiators.
 
First established in 1990, the negotiated rulemaking process was created to bring federal agencies and interested stakeholders together to develop certain new regulations through a framework designed to promote consensus among diverse groups. The Every Student Succeeds Act requires the department to use this process, at a minimum, for regulations on standards, assessments, and the requirement that federal funds supplement, rather than supplant, state and local funds.
 
To “evaluate the Department’s compliance with negotiated rulemaking requirements and the integrity of the ESSA negotiated rulemaking process,” the chairmen’s letter requests information related to a number of questions, including:
 
  • How the department met a requirement that individuals on the negotiated panel shall include “representation from all geographic regions of the United States, in such numbers as will provide equitable balance between representatives of parents and students and representatives of educators and education officials.”
     
  • Whether the department’s actions in naming panel participants biased the panel’s deliberations.
     
  • Protocols and/or criteria used to determine when a secretary or other high ranking department official will speak to a panel or otherwise participate in a panel’s work, as Secretary King did during the rulemaking process.
     
  • Steps taken to ensure statements made by the department’s negotiators accurately reflect the statute and their role in the negotiated rulemaking process.
     
  • The participation of three outside experts and the process for choosing those experts.
     
  • How the department determined which provisions related to assessments would be included in the process.

 
Additionally, the letter requests "all documents and communications related to the department’s determination of its legal authority for all regulatory language proposed to the negotiated rulemaking panel." The chairmen are requesting a response by June 7, 2016.
 
The full letter is available here.

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