The Senate's plan to replace No Child Left Behind, explained

The Senate voted 81-17 Thursday to replace No Child Left Behind, the landmark federal education law that's now long overdue for an overhaul.

The Senate's bill, the Every Child Achieves Act, would keep the signature feature of No Child Left Behind — standardized testing. But states would have more leeway to set goals for their schools and decide what to do if schools don't meet them, rolling back the federal government's role in education policy.

The Senate bill is a bipartisan compromise on the key issue: how much say the federal government should have in how states hold schools accountable. That's left some on each side of the debate unhappy.

Civil rights groups, who urged senators to vote against the bill, say it doesn't do enough to make sure all students, particularly disadvantaged students, are learning. "What is missing is an expectation that if any group of students is not meeting those state’s set goals, someone has to do something about it," said Daria Hall, director of K-12 policy for Education Trust, an advocacy group that was deeply involved with crafting the original No Child Left Behind law.

On the other side, the law is almost certainly too liberal for House Republicans, who barely passed a more conservative version early in July. Although the Senate bill passed with a large bipartisan majority, it's far from clear if it will ever become law.

Why people are trying to replace No Child Left Behind

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No Child Left Behind is long overdue for an overhaul. Once bipartisan, the law has lost support from both conservatives and liberals. And it's already failed to meet the specific, ambitious goal it set out to accomplish: ensuring every child in the US could do math and read by mid-2014.

When a school getting federal money for low-income students failed to make adequate yearly progress toward that goal, No Child Left Behind detailed what states were expected to do to fix it. After six years without making progress, the penalties became severe: Schools could have their entire staff fired and replaced, they could be turned into charter schools, or they could be taken over by the state.

It wasn't enough to make progress overall; to comply with the law, schools had to prove that historically disadvantaged groups of students, such as students learning English or students from low-income families, were progressing. When No Child Left Behind was signed into law in 2002, policymakers assumed Congress would update the law — and revise its ambitious goal of universal proficiency in reading and math — sometime in the following decade.

That never happened. For years, neither Congress nor the executive branch seemed particularly interested in rewriting the law. Instead, the Obama administration allowed states to escape some of the law's consequences by making other policy changes, such as adopting new academic standards and developing new ways to evaluate teachers. Nearly all states now have some kind of waiver from the law.

How the Senate would change the law

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The Every Child Achieves Act keeps some features of No Child Left Behind while giving states much more flexibility on how to hold schools accountable:

1. Schools still would still test students in reading and math every year, and set goals for their students, including for historically disadvantaged groups of students.
2. Those goals would have to include test scores, graduation rates and English proficiency rates, among other factors, when setting goals for their schools. States could also include other variables that they think are important.
3. States could decide for themselves how much weight they should give each factor. The federal government would have 90 days to decide if the state's plan was acceptable — but they'd have to cite "substantial evidence" that it wasn't in order to force a state to change.

That gives states much more power to determine what makes a good school and decide what to do if schools aren't living up to those standards. Among other things, it leaves how to punish or change low-performing schools up to states.

"What this Senate bill does is try to find the right balance on where the pendulum should be between flexibility and accountability," said Joel Packer, executive director of the Committee for Education Funding and a former director of education policy for the National Education Association.

But some civil rights groups, who remain staunch supporters of the concept behind No Child Left Behind, fear that the bill swings the pendulum too far away from federal accountability.

The bill doesn't say that states have to intervene when schools consistently don't perform well on tests, or when subgroups of students — such as black students or students with disabilities — lag far behind their peers. An amendment from five Democratic senators to add such a requirement failed, 43 votes in favor to 54 against.

That amendment was an illustration of the tricky tightrope the bill has to walk. For civil rights groups and some Democrats, a requirement that states do something about low-performing schools, or schools that are failing disadvantaged students, is a must-have. To Republicans, it's a representation of too much federal overreach.

The House would go much further in getting the federal government out of school accountability

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The House's plan to replace No Child Left Behind, the Student Success Act, narrowly squeaked its way to passage by a 218-213 vote.

The House bill is very conservative. While it also keeps the requirement that schools test students every year and report the results, it doesn't tell states how to hold schools accountable for the results, and it allows parents to opt their children out of standardized testing.

Beyond that, the Student Success Act would shift some federal funding for schools that serve a large number of poor students to schools with a smaller number of poor students, by allowing federal money to follow students who transfer from higher-poverty schools to lower-poverty schools.

While the Obama administration has said it has concerns about some of the accountability provisions in the Senate version, it's already threatened to veto the House version.

And the House version almost didn't pass. Heritage Action, the political arm of the conservative Heritage Foundation, said the bill wasn't conservative enough because it didn't allow states to opt out entirely and didn't create federal vouchers for poor students. The bill was yanked from the floor earlier in 2015 amid such concerns, and the vote to pass it on July 8 was a nail-biter: Until the last minute, it looked like the bill would fail.

The Senate bill is actually a bipartisan compromise — and that's the problem

Sens. Lamar Alexander and Patty Murray, respectively the lead Republican and Democrat on the Senate's education committee, worked together to come up with a bill acceptable to a broad swath of the Senate. It keeps some central ideas of No Child Left Behind while offering states more flexibility. It doesn't include conservative ideas that liberals would never vote for, such as turning federal funding for high-poverty schools into a voucher program for individual students.

So far, so bipartisan. But in a sense, that's the problem. While some House Republicans would vote for that less conservative bill, it's likely to be anathema to House Republicans who weren't sure even their version was conservative enough.

On the other hand, the Obama administration already isn't thrilled with how far the Senate bill goes in getting rid of federal accountability, and some Democratic members of Congress have indicated they aren't either. Eighty-four House Democrats urged the Senate to adopt the amendment that would tell states when to intervene in low-performing schools, to no avail.

The Obama administration will have to decide if the compromise bill, which removes much of the federal role in holding schools accountable for poor and minority students' performance, is acceptable.

"It’s going to be a very tight needle to thread," Packer said.

What has to happen in order for a No Child Left Behind replacement to pass

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Congress could pass a compromise version of the House and Senate bills. Obama might even sign it. But that would come down to whether House Speaker John Boehner is willing to bring a bill to the floor that could pass with the support of moderate Republicans and some Democrats. He'd have to violate the so-called "Hastert Rule": an informal principle that any bill should be able to pass with a majority of the House Republican majority.

The big argument in the bill's favor for Republicans: Even if the Every Child Achieves Act isn't perfect, it would severely limit Education Secretary Arne Duncan's sway over state education policy.

Duncan took a crisis — No Child Left Behind had lingered on long past its expiration date, and many American schools were going to be declared "failing" as a result — and turned it into an opportunity to use the power of the federal government to get states to change their policies.

The Education Department set conditions for getting a waiver from No Child Left Behind's punishments, and most states went along with those conditions. Among the results: More than 40 states stuck with the Common Core standards, and most states now have policies that evaluate teachers based in part on their students' test scores.

The waiver regime has gotten increasingly complicated. Some states now have waivers from portions of their waiver requirements. Some states have had to apply for waiver extensions. And in eight states without waivers, including Washington, No Child Left Behind and its penalties are still in place.

The Senate bill would cut back on Duncan's authority — and that of any future education secretary. The Education Department could no longer encourage states to adopt academic standards, a key way the Obama administration helped the spread of Common Core. And the department would have only limited authority to tell a state it had to do more to hold schools accountable.

Without an overhaul of the law, the next administration could create its own No Child Left Behind waiver regime to push its preferred policies.

But it's not clear if that argument is compelling enough to get a compromise bill through Congress. Boehner has violated the Hastert Rule before, but usually when there were immediate, devastating consequences: a debt default or a government shutdown.

Few people think it's a good idea for No Child Left Behind to remain in place unchanged. The question, now that the Senate bill has passed, is if the consequences of doing so are high enough for John Boehner to pass a bill unpalatable to many conservatives.

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