Everyone talks about the “do-nothing Congress” and how Republican obstruction has neutered the federal government. But recently there was one policy area where warring parties in Congress actually settled their differences.

Late last year, both houses passed and President Obama signed new national education legislation to replace the infamous No Child Left Behind law from the early years of the George W. Bush administration.

The Washington Post reported, “The Every Student Succeeds Act, which received strong bipartisan support from both houses of Congress, will directly affect nearly 50 million students and their 3.4 million teachers in the nation’s 100,000 public schools.”

Obama declared it “a Christmas Miracle.”

Unfortunately, when it comes to education policy, the b-word, “bipartisan,” has not necessarily been a good thing. After all, NCLB was a product of bipartisanship, as were other fiascos such as the Iraq War and the bank bailout.

But there are indicators that maybe with ESSA bipartisan may not be bi-stupid. The “may” in that sentence is contingent on how general provisions and vague stipulations in the 1,000-plus page ESSA bill are interpreted and implemented.

While NCLB coupled a myopic obsession with “testing and punishing” public schools and closing the “low performers” with expansions of competitive charter schools, ESSA give states and school districts more flexibility to determine education policies. A possible outcome of this increased flexibility could be that local policy leaders may finally abandon failed “reform” ideas of NCLB and focus on what really matters most: Making sure every student has ample opportunity to learn and every school has what it needs to attend to each child’s needs.

But ESSA has potential downsides too.

In sizing up the potential of ESSA, reform critic Stan Karp observes for Rethinking Schools, “This could produce some modest openings for change … But there are as many pitfalls as openings.” He cautions, “For more than a decade states, under federal pressure, have been expanding the reach of test-driven reform, closing schools, and promoting charters and privatization. Rolling back these trends will not be easy.”

The window to determine the direction of the new national education policy is narrow. Committees spelling out rules and defining new regulations of ESSA are meeting in Washington, DC now. The deadline of August 1, the expiration date for waivers states had to get for not being NCLB compliant, is fast approaching. And by this fall, states must submit their implementation plans for approval in order to get federal funding.

So far, everyone thinks they’re going to get what they want out of ESSA, but we all know that’s not how it’s going to be.

Teachers Are At The Table

Teachers’ unions, that have been strident critics of federal education policy for years, think the new policy direction may be for the better. Both national unions, the American Federal of Teachers and the National Education Association, were quick to celebrate the pasage of ESSA and are now determined to influence the workings of the new law.

At a recent town hall I attended in Silver Springs, MD, a suburb of Washington, DC, NEA president Lily Eskelson Garcia and NEA state chapter officers hailed the passage of ESSA as a “new beginning” and a “game-changer for kids.” About 150 educators and union activists, from 15 states, packed into the civic center to hear what the law promises and how they can mobilize to ensure it isn’t just another form of bad.

Numerous speakers noted the presence of teachers and union representatives on the committee negotiating the new regulations, which prompted many to declare, “Teachers are at the table rather than on the menu.” The menu, in this case, is likely a reference to the feeling teachers have had that education reform has been something done to them rather than with them.

One entrée on the reform menu that’s been eighty-sixed is the federal requirement to base teacher evaluations, in part, on student scores on standardized tests. This was a provision not included in NCLB but required in the waivers imposed by the Obama administration. Teachers have long objected to this practice and numerous authoritative studies have determined test-based evaluations often lead to flawed results, over-testing of students, and more teaching to the test. ESSA lifts this requirement.

Another reason teachers feel less targeted under the new federal policy is that a provision of NCLB known as Adequate Yearly Progress also goes away. AYP is the yardstick the federal government imposed to determine how every public school and school district in the country is performing academically according to results on standardized tests. Even though the vast majority of schools were never able, and would never be able, to meet the unrealistic expectations imposed by AYP, the consequences for not hitting the mark were harsh and could include the firing of teachers and eventual closing of the school.

Also, teachers feel they’re now “at the table” of policy making because of other aspects of ESSA. A handout circulated to the town hall crowd noted the new law not only moves decision-making closer in proximity, geographically, to teachers, it also gives teachers more opportunity to participate in those decisions. Specifically, ESSA calls for “committees of practitioners” – made up of educators, parents, and other community members – to be involved in school policy-making to some degree.

The consensus at the town hall was that lifting the regulatory weight off teachers and giving them more voice in policy decisions will let them do more of what they feel they do best: address the needs of their students.

But teachers aren’t the only ones who smell opportunity in the details of ESSA.

Resisting The ‘Cheap Fixes Of ‘Reform’

“Part of ESSA that’s important is that states are now being asked to come up with their own policy approach to help kids,” Kevin Wener tells me in a phone call from his office in Boulder, CO where he directs the National Education Policy Center. NEPC analyzes research-based education policy in the context of a social justice mission.

What Welner likes about ESSA is how the new law opens up the possibility that attention will shift away from the shallow accountabilties of test scores to more meaningful measurements of learning opportunities and school resources.

What he worries about is that rather than choosing meaningful change, states and district leaders will continue to embrace short-term gimmicks and resist the costs and long-term thinking required from research-based policy.

“There’s this belief we can overcome ingrained policy problems with cheap fixes,” he says. Among the cheap fixes Welner points to is the current trend to expand charter schools. “Simply changing the name of John Dewey School to John Dewey Charter School does nothing to help kids unless the name change is accompanied by an influx of resources and opportunities,” he tells me.

Indeed, where educators see in ESSA a potential for increased participation and influence, advocates for charter schools see more money and power for their enterprise.

Under ESSA, charter schools will continue to receive a hefty allotment of federal tax dollars in perpetuity. According to a reporter for Education Week, the Department of Education’s Charter Schools Program has been received over $3 billion from the feds to help launch new charter schools around the country. That outlay got an $80 million increase over last year and is slated for $333 million more in 2016. ESSA also makes the charter school grant money part of the federal law rather than subject to annual authorization, which stabilizes the cash flow until the law is changed.

Chief charter school advocates celebrate the passage of ESSA. The day it passed, the Washington Examiner reported adulation coming from the most prominent charter school advocacy organizations including the Center for Education Reform and the Foundation for Excellence in Education created by Jeb Bush.

Writing for the education reform advocacy website The 74, Nina Rees, the president & CEO of the National Alliance for Public Charter Schools, sees in ESSA an opportunity for “states to continue empowering low-income families by devising programs that expand their current school choice options.”

Noting the “dedicated stream of money” ESSA writes into federal code, she also says the new law provides “more flexibility and independence” for charters and a means to address the “creeping regulations that reduce autonomy and inadequate funding.”

Rees believes the flexibility in ESSA will make states “get serious about fixing their worst-performing schools,” which sounds a whole lot like a call for the continued regime of test and punish imposed by NCLB. No doubt, she foresees the continued branding of public schools as “failing” as a great marketing pitch for unregulated, well-financed charters.

So the fear is ESSA may make it easier for charters to game the current system even more to their advantage.

A Free Pass To Constrict Student Rights

“An intrinsic part of what makes charters, charters is their ability to be exempt from certain regulations,” Dan Losen explains to me in a phone conversation. “I get that.” But Losen worries about some of exemptions charters have sought in the past and may have greater leeway to obtain under ESSA.

Losen is the director of the Center for Civil Rights Remedies at UCLA’s Civil Rights Project. He has worked at the CRP since 1999, when it was affiliated with Harvard Law School, where he has also been a lecturer on law.

Earlier this year, Losen and his colleagues at CRP dropped a bombshell of a report on the charter school industry, which examined out-of-school suspension rates for over 5,000 charter schools. The CRP analysis found many charter schools rely more heavily, in comparison to public schools, on discipline approaches that include suspending high percentages of students, particularly black and Latino students and students with disabilities, especially at the secondary school grade levels.

According to a review of the report’s findings in U.S. News & World Reports, “Charter schools are four times more likely to suspend black students than their white peers.” Students with disabilities in charters are “twice as likely to be suspended as their non-disabled peers.”

The report followed closely after a video published by the New York Times went viral showing a teacher at a prominent charter school humiliating a young child in front of the class. The charter school was in the same chain of schools where the Times had previously found a principal who had drawn up a “got-to-go” list of disruptive students. These schools also have extraordinarily high rates of suspensions for kindergartners, according to a report by PBS.

The report from Losen and his colleges gave statistical weight to the anecdotal reports from the Times. PBS, and other media channels that many charter schools practice especially harsh forms of student discipline that purposefully push out low-performing and disruptive students.

The high suspension rates are concerning. As an Education Week reporter explains in her review of the CRP report, exclusionary discipline practices like suspensions and expulsions are strongly linked to “chronic absenteeism, lower achievement, lower graduation rates, and heightened risk for grade retention and involvement in the juvenile justice system.” What the EdWeek reporter doesn’t mention is that using suspensions to encourage struggling students to leave the school is also a short cut to improving a school’s test scores and high school graduation rates.

Of course, public schools also, in general, disproportionately suspend black and Latino students and students with disabilities. But not only do charters tend to do so at higher rates; those charters that rely on suspensions to get their “high performing” status are held up as models for other schools to follow and targeted for more funding and autonomy in the language of the new federal ESSA.

Also in ESSA, there is a provision to address this issue – but also an opportunity for the charter school industry to circumnavigate scrutiny.

Losen and his colleagues write in their report that ESSA has “several provisions that address school discipline, including a requirement that every state review its schools and districts for the overuse of suspension.”

But in his conversation with me, Losen explains the new ESSA provisions on charter school discipline practices don’t apply when a state law explicitly exempts charter schools.

Losen points to states such as California where charter advocates persuaded the state to exempt their schools from the state’s code of conduct governing the use of suspensions. According to Losen, when an effort arose to make that code apply to charters, the charter industry successfully beat back the bill.

A quick run-down of charter school exemptions, state by state, posted on the website of the Education Commission of the States reveals charter schools in many states enjoy broad ranges of exemptions, while in other states exemptions are granted at the district or charter authorizer level.

When charters aren’t given exemptions they often act with impunity to flaunt the law. In New York, according to a letter to the editor posted in the New York Times by a state supervising staff attorney who advocates for children, most charters routinely ignore Constitutional and state law requirements to provide parents written notice of suspensions and an opportunity for a hearing.

Of course, federal civil rights laws still apply. But according to Losen, there are ways charters can fudge those requirements too.

Under ESSA, state accountability systems will have to report a lot more about how all schools treat a broader range of student populations, such as black and Latino students and students with disabilities. State reports also have to specify how many students a school must have in a given population of students in order to report their outcomes. Statisticians refer to this number as an “n” size. Setting the right n-size is critical, according to Losen. Set it low and schools can’t cover up what happens to students who are a small minority in the school. Set it high and schools can cover up all sorts of discrimination.

“With charters already educating disproportionally low numbers of students with disabilities and students who don’t speak English as their first language,” Losen explains, “there’s a good reason to set the n-size low, say around ten,” in order to ensure charters can’t cover up discrimination. Yet Losen fears many states will be persuaded by charter lobbyists to set n-sizes high, even as high as 100, and provide “a back door way for only the very largest charter schools to be held accountable.”

Losen’s concerns with how the implementation of ESSA will be gamed by the charter industry go beyond student rights. With ESSA, he sees the potential for states to let more money go to for-profit charters, including bogus on-line charters, and to provide less oversight of supplemental services – basically, outside for-profit vendors providing tutoring to struggling students – that proved to be such an avenue for fraud under NCLB.

Although he welcomes the “positive development on test-based accountability and language related to discipline” in the new law, he finds the lack of federal oversight of charter schools “disconcerting.”

Where We Should Be Heading

Instead of an open door for charter school malfeasance, Welner hopes ESSA addresses the inadequate resources in the education system and shifts the focus away from “the old NCLB mindset that we can have accountability without equity.”

Welner believes under the new law the federal government still has the power to use its money to rectify resource inequities and discrimination, but he remains “skeptical” policy leaders will do that.

“The reality of ESSA will inevitably play out, but nothing good will happen unless educators and parents do something to shape it,” Donna Harris-Aikens tells me in a conversation at the NEA national headquarters in Washington, DC.

Harris-Aikens, NEA’s director of the education policy and practice, believes “the law is written with a lot of potential but not a lot of guarantees.”

For instance, states now have the leeway to develop school accountability systems that go way beyond test scores to encompass a “dashboard” of school performance measures such as the level of student engagement in the school, the quality of the school’s learning climate, and the presence of essential supports such as libraries, science labs, and reading specialists.

Losen fears many states will be persuaded by charter advocates to exempt their schools from the more qualitative accountability measures, such as school climate and student engagement, in order to keep their harsh, demanding learning environments hidden.

But Harris-Aikens believes the accountability dashboard will be an opportunity for schools to attend to student needs beyond academics, including their health and nutrition, their motivation and persistence, and their social-emotional well being.

With school improvement plans under ESSA now being built at the local level, rather than delivered as a federal mandate, Harris-Aikens sees an opportunity for the enactment of ESSA to lead to the development of more schools that attend to the whole array of student needs – what has come to be called “community schools.”

According to the Coalition for Community Schools, “full service community schools” are actually something specified in Title IV of ESSA under a program titled “Community Support for School Success.” CSS is an alliance of organizations that address education, youth and family support, and health and human services.

According to CCS, “The bill also contains provisions that advance the community schools strategy, including the requirement for indicators beyond academics in state and district accountability systems” and support and resources for programs that encourage partnerships between schools and community organizations that provide health and human services to children and youth.

These advocates for community schools see the new ESSA law as a way to “encourage more mayors like Bill De Blasio in New York City, Ras Baraka in Newark, and Jim Kenney in Philadelphia who are embracing community schools as a solution to their city’s vexing education challenges.”

Who Wins?

Under ESSA ” ‘comprehensive support’ is in; ‘quick fixes’ are out,” writes CCS president Martin Blank in the Washington Post. Blank points to numerous provisions in the new law that “balance accountability with support” for struggling schools and students with needs beyond those addressed in the narrow oversight of NCLB.

“ESSA has opened the door,” Blank argues for policy makers to reject the “cheap fixes” Welner spoke of and create systems that that ensure students receive the learning opportunities they deserve and schools get the resources and support they need.

Will the policy makers walk through?

“I’m very hopeful,” classroom teacher Sarah Neubold says of ESSA. Neubold is an art teacher who is now serving as a pre-k–12 content specialist for the Montgomery County Maryland school district.

When I spoke to her at the NEA town hall I attended, she told me how NCLB, with its emphasis on testing only a very narrow range of the curriculum, “marginalized” her subject. “Marks on a bubble sheet were more important than marks on a canvas,” she said.

But according to Neubold, ESSA names art, specifically, as core content. “My content will be valued again,” she said. And she sees the accountability dashboard possible under the new law as a hopeful sign schools will attend to the needs of the “whole child.”

Speaking for the sake of her own child, not just her students, Neubold assured me ESSA is a law that is more likely to ensure, “My son will have more opportunities to learn.”

Glowing recommendations for ESSA sound great. But the ominous specter of charter school industry expansions provided for by the new law can’t be ignored.

Somehow, the creators of ESSA seem to believe this will all be sorted out at the state and local level – that education policy can both take on the harder, more costly work of addressing the broad needs of students and schools yet keep those quick fixes like charter schools in the mix as well.

What the law’s framers don’t seem to understand is that’s not how the money for education is customarily sorted out.

Communities faced with an array of education options – such as charter schools and community schools – can’t usually select “all of the above.” And when families choose one option over another, and – as the charter school industry prefers – “money follows the child,” there is a winner and a loser.

ESSA may in fact open up all kinds of positive new potentials for schools and students, but the doorway feels more like a starting gate.