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GENERAL MEMORANDUM 13-072

GENERAL MEMORANDUM 13-072
Elementary and Secondary Education Act Reauthorization Moving in Congress

In recent weeks there has been legislative action regarding the reauthorization of the Elementary and Secondary Education Act (ESEA). The ESEA was last reauthorized in 2001 as the No Child Left Behind (NCLB) Act. That authorization expired in 2007 but Congress has continued to appropriate funding for the various education programs. The House-passed ESEA reauthorization bill (HR 5) reflects the Republican view to greatly reduce the federal role in education and provide greater flexibility to states and local districts. The Senate Committee-approved version (S 1094) also provides some flexibility but reflects more of the Administration's education goals, including waivers, mandated interventions for poor-performing schools, and mandated evaluation systems for teachers and administrators. S 1094 may be brought up in the fall for full Senate consideration under an open amendment procedure which would allow Republicans the opportunity to offer amendments reflecting their interests.

We report below on the major ESEA reauthorization and Native-specific education bills.

ESEA Reauthorization Legislation

House-approved ESEA Bill. On July 19, 2013, the House amended and passed the Student Success Act (HR 5, H. Rept. 113-150 Part 1) by a vote of 221-207. HR 5, introduced by House Education and Workforce Committee Chairman Kline (R-MN), is the first major ESEA reauthorization bill to be acted on in the 113th Congress.

Although the House adopted a number of amendments to HR 5, it would still seek to reduce the federal role in education policy, and promote flexibility for states and school districts to exercise greater control over education. The Administration has threatened to veto a bill like HR 5 should it reach the President's desk.

HR 5 would reauthorize the ESEA through 2019, with funding levels authorized at near FY 2013 post-sequestration levels. It would eliminate a number of programs as well as consolidate many programs under two new flexible grant programs. It would also eliminate the current school accountability requirements enacted as part of the NCLB.

Among the other proposed ESEA changes are provisions that would:

  • In lieu of the NCLB-mandated accountability system, allow states to develop their own academic standards and other academic indicators in reading, math and science, and, at the state's discretion, standards in other subject areas
  • Allow states to identify the poorest performing schools and allow local districts to develop improvement strategies and rewards
  • Eliminate the "highly qualified teacher" requirements, and allow states, at their option, to develop teacher evaluation systems
  • Eliminate the Maintenance of Effort spending requirements as a condition for receipt of federal funding, and adjust the Title I (Improving Academic Achievement of the Disadvantaged) funding allocation so funds would "follow the student" to other public or charter schools instead of the current statute's process of funding allocated to schools with high levels of low-income students
  • Consolidate a number of programs to create the Local Academic Flexible Grant and the Teacher and School Leader Flexible Grant programs, and eliminate over several dozen programs
  • Prohibit the Secretary of Education from imposing conditions on states regarding curriculum standards and assessments (e.g., Common Core Standards)

The bill would maintain the requirement that states and school districts issue and distribute an annual report card, including disaggregated data on student achievement and high school graduation rates.

Title VI – Indian Education. One of the amendments to HR 5 adopted on the House floor that is of particular importance to Native students is a provision that would retain American Indian/Alaska Native/Native Hawaiian education as a separate title under the ESEA. The House adopted the amendment by a vote of 263-161. HR 5 as introduced would have merged ESEA's Indian education programs into Title I (and eliminate Title VII, which is the separate Indian education title in current law). The amendment was offered by Subcommittee on Indian and Alaska Native Affairs Chairman Don Young (R-AK), along with Representatives Gabbard (D-HI), Hanabusa (D-HI), and McCollum (D-MN).

HR 5 would revise the Indian Education section as "Title VI–The Federal Government's Trust Responsibility to American Indian, Alaska Native, and Native Hawaiian Education." Among the proposed changes under Title VI are ones that would:

  • Expand the eligible entities applying for formula grants to include not only local educational agencies and Indian tribes but also Indian organizations, Alaska Native organizations, or a consortium of such entities
  • Provide that once student documentation of eligibility for services has been completed, it does not have to be renewed or duplicated for subsequent grant awards
  • Authorize a new National Activity for Native language acquisition and restoration programs
  • Authorize tribe/tribal education agency cooperative agreements with state and local educational agencies that would allow the option to operate programs in public schools located on tribal lands that serve Native students
  • Revise the Title I committee requirements to include "family members" (rather than "parents") of children who are attending the school/s
  • Eliminate several programs, including the Gifted and Talented Indian Students program and the Fellowships for Indian Students

Senate Committee-approved ESEA Bill: Strengthening America's Schools Act of 2013, S 1094. On June 12, 2013, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved on a party-line vote the Strengthening America's Schools Act (S 1094), with amendments. S 1094, which is the Senate version of the ESEA reauthorization, was introduced by HELP Committee Chairman Harkin (D-IA).

The bill would provide flexibility to states and districts in formulating student accountability systems (states with approved flexibility waiver plans could continue that process); impose mandated interventions for poor performing schools; require teacher and principal evaluation systems; and consolidate a number of programs.

Regarding Indian education, S 1094 would:

  • Continue an ESEA title (Title VII) specific to Native education
  • Provide an exemption for American Indian/Alaska Native/Native Hawaiian Native language teachers from the teacher certification requirements
  • Expand eligibility for Indian Education formula grants to include Indian organizations or a consortia of eligible entities
  • Increase minimum grant amounts from $3,000 to $10,000 (this amount would be further increased to $15,000 if the Secretary determines it necessary for program quality purposes)
  • Provide that once student documentation of eligibility for services has been completed, it does not have to be renewed or duplicated for subsequent grant awards
  • Authorize use of Title VII funds to support the preservation, reclamation and restoration of Native languages, while eliminating several programs authorized (but not funded) under the National Activities category

Senate Republican ESEA Bill: Every Child Ready for College and Career Act, S 1101. On June 6, 2013, HELP Committee Ranking Member Alexander (R-TN) introduced the Republican version of ESEA reauthorization legislation as S 1011, the Every Child Ready for College and Career Act.

Like HR 5, S 1101 would eliminate the NCLB Adequate Yearly Progress accountability system and allow states to develop their own academic standards and assessments. It would allow states to self-identify the poorest performing schools and allow local districts to develop their own improvement strategies.

Title I funds would follow the student to whichever school they attend and would consolidate numerous programs authorized in current law into two block grants to give states more flexibility in use of those funds. The bill would retain current law requirements that states have "high academic standards" and administer annual tests in reading, math and science. S 1101 would also allow states, at their discretion, to utilize Title II teacher development funds to develop teacher and principal evaluation systems.

S 1101 would authorize set amounts for the Indian Education, Native Hawaiian and Alaska Native grants–at approximately five percent less than the FY 2013 appropriated levels. No other changes are proposed for Title VII.

S 1011 was not marked up by the HELP Committee but will likely be the source of a number of Republican floor amendments when S 1094 is considered by the full Senate.

Native-Specific Education Bills

Two ESEA bills have been introduced that are limited to Native education, S 1131 and HR 2367. We do not know whether any of these provisions will be incorporated into the Senate ESEA or a final ESEA bill.

BUILD Act for Native Education, S 1131/HR 2367. On June 11, 2013, Senator Tom Udall (D-NM) introduced S 1131, the Building upon Unique Indian Learning and Development (BUILD) Act, which is nearly identical to the bill he introduced in the 112th Congress. S 1131 was referred to the Senate Committee on Indian Affairs. Representative Lujan (D-NM) introduced a companion bill (HR 2367) on June 13, which was referred to the House Committee on Education and the Workforce.

The main provisions of the BUILD Act would:

  • Authorize the In-School Facility Innovation Program Contest to generate innovative solutions to school facility deficiencies in the BIE system and other tribal schools
  • Authorize grants to eligible institutions (with priority for grants to tribal colleges and universities) to develop educational programs to expand the number of and provide incentives for teachers and administrators qualified to teach in schools serving Native students
  • Provide that the "highly qualified teacher" definition would not apply to teachers of Native languages in lieu of state-devised alternative licensure or certification requirements for teachers of Native languages
  • Authorize a grant program to help ensure the survival and vitality of Native languages
  • Increase BIE-funded and other tribal schools access to grants, contracts, or other assistance otherwise available to elementary and secondary schools or early childhood and pre-kindergarten programs
  • Establish "Safe and Healthy Schools for Native American Students" program to improve school environments and enhance student skill development with a focus on the prevention of substance abuse, suicide, violence, pregnancy and obesity as well as the establishment of programs to promote healthy eating, anger and conflict management, and drop-out prevention.

Section 8 of the bill would authorize forward-funding for the handful of tribal colleges not already covered by the current law's forward funding authority – United Tribes Technical College, Navajo Technical College, Institute of American Indian and Alaska Native Culture and Arts Development, Haskell Indian Nations University, and Southwestern Indian Polytechnic Institute. In addition the bill would forward fund Interior Indian scholarships, adult education and special higher education scholarships.

If we may be of further assistance regarding the legislation in this report, please contact us at the information below.

# # #

Inquiries may be directed to:
F. Michael Willis (mwillis@hobbsstraus.com)
Marie Osceola-Branch (mosceola-branch@hobbsstraus.com)

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