ESEA Re-Authorization:
Hot Button Issues Up for Grabs!
Sasha Pudelski
Government Affairs Manager
March 29, 2012
Senate Committee
One Comprehensive Bill Re-Authorizing ESEA
October 18-20th of 2011
Chairman Tom Harkin, IA
Ranking Member Mike Enzi, WY
Voted out of committee 16-7
Floor - Harkin says only when House has a
bipartisan bill
House Committee
• Two bills to reauthorize ESEA
– Student Success Act & Encouraging Innovation
and Teachers Act
Chairman John Kline, MN
Ranking Member George Miller, CA
Mark-up was Feb. 28
All 23 R’s voted in favor, all 16 D’s vote against
Floor between now and July
ESEA: House & Senate Similarities
• Both eliminate AYP, AMO, 100% proficiency
• Both call for higher standards
• Both require annual testing in math/reading in
grades 3-8 and once in high school
• Continued data disaggregation
• States get big say in intervening in lowperforming schools
• Eliminates requirement re: tutoring and school
ESEA: House & Senate Differences
• House model lacks any specific turn around models,
as well as any parameters in identifying who would
use models
• House doesn’t include another percentage of schools
for special attention (Senate specifies turnaround
models for bottom 5% of schools)
• House bill eliminates HQT requirement
• House bill requires SEA/LEAs to develop teacher
evaluation systems (Driven by student performance
and having more than 2 levels); Senate only requires
it for those applying for competitive grants
• House bill includes significant expansion of funding
Hot Button Issues Stalling
ESEA Re-Authorization
Foster Care
Student Non-Discrimination
Seclusion and Restraint
Fostering Success in Education
• Amendment to incorporate legislation
introduced during HELP Committee mark-up
by Sen. Franken (D-MN)
• Franken introduced despite vocal opposition
from superintendents in MN
• Some Republicans voted for it, most did not
• HUGE unfunded mandate for school districts
Under Franken’s Amendment you
would have to:
• State SEA and State Child Welfare would decide
how payments for transportation to/from school of
origin would work (this could mean schools would
be on the hook for some, if not all, of costs)
• No parameters on where the child is placed (could
be 100s of miles away)
• No ability to object to placement or to weigh in on
child welfare agency decisions
• LIKELY scenario: Child Welfare decides the
placement, you pay for the kid to get to and from
school without ability to object
And it’s not just transportation!
• Foster Care students have the right to
immediate enrollment
• Mandate every district has a foster care liaison
who cannot be the McKinney Vento liaison
• Disaggregate student achievement by fostercare status in addition to other categories
• No funding associated with any of these costs
AASA’s Talking Points
• Unfunded mandate
• We’ve never received the funding we need to
transport homeless students, how can we be
asked to serve another vulnerable population?
• All other costs associated with a foster care child
fall on child welfare and this should be no
• These policies will not actually improve outcomes
for students in and out of the foster care system
Best Thing YOU Can Do
• Address the problem of improving educational
stability of foster care students by creating an
MOU with your local child welfare agency
• Prove you’re working to improve student
outcomes for these vulnerable kids and the
argument for federal mandates and intervention
is greatly weakened
• See for a list of
state laws that have been passed related to foster
• What we started with and where are today are
very different places
• Safe Schools Improvement Act (H.R. 1648/S. 506
• Both have some bipartisan support
• House bill has 145 co-sponsors, Senate has 39
These are high numbers
• Bullying bill is top legislative priority for civil
rights/LGBT community
Safe Schools Improvement Act as
originally written would:
• Require schools to report all bullying and
cyberbullying incidents
• Require that bullying data be disaggregated by
• Have a very broad definition of bullying and
• Require districts to have staff member who
handles bullying complaints
• Designate strict timelines for investigating and
resolving bullying complaints
Negotiated Senate Version:
• Creates federal definition of bullying that all
schools must adopt
– Conduct that is sufficiently severe, persistent or
pervasive to limit a student’s ability to participate
in or benefit from a program or activity OR create
a hostile, abusive educational environment.
• Must prohibit bullying based on sexual
orientation and gender identity
Current Predicament
• Civil Rights/LGBT Advocates still want to pass
the original bill
• We don’t want a federal bullying bill
• 47 states have their own laws, regs and/or
guidance on bullying, there’s no need for this!
• If there must be federal bullying legislation,
we prefer the negotiated Senate language, but
don’t expect us to support it
Student Non-Discrimination Act (SNDA)
• ANOTHER Al Franken Bill
• ANOTHER fight with the LGBT/Civil Rights
• Introduced in both House and Senate (H.R.
• 157 co-sponsors in the House; 37 in Senate
• It’s a small miracle this wasn’t add to ESEA
during HELP mark-up
What does SNDA do?
• SNDA prohibits public school students from being excluded from
participating in, or subject to discrimination under, any federallyassisted educational program on the basis of their actual or
perceived sexual orientation or gender identity or that of their
• The SNDA is closely modeled after title IX of the Education
Amendments of 1972 which prohibits discrimination on the basis of
sex and provides legal recourse to redress such discrimination.
• Considers harassment to be a form of discrimination
• Allows an aggrieved individual to take legal action against the
school district and recover reasonable attorney's fees should they
• Allows the federal government to deny school districts federal
funds if they are found to be in violation of any part of the
Why Does AASA Oppose It?
• Granting individual students a private right of
action against a school system creates new costs
and administrative structures and is a slower path
to preventing discrimination than training or
professional development.
• While AASA does not take a stand on whether a
student’s sexual orientation or gender identity
should be protected categories under law, we are
committed to providing a safe and healthy school
climate where all students feel safe and able to
Assessments for Students With
• Should we keep having kids take a test they
can’t do well on that does not demonstrate
the progress they are making?
• Disability community says HECK YES
• AASA says NO
• This boils down to a debate over the alternate
assessment for students with significant
cognitive disabilities
Sen. Isakson’s Amendment
• Sen. Johnny Isakson of GA introduced an
amendment in the Senate HELP mark-up to lift
the 1% cap on students with disabilities who
could take the alternate assessment
• IEP team would determine appropriate
assessment for student
• Debate on this amendment was the longest of
any amendment during mark-up
• Struck down on party-line vote
• Isakson promises to revisit amendment if/when
ESEA goes to the floor
AASA’s Position
• Arbitrary caps on alternate assessments are
irrational and do not ensure students are
properly assessed
• If the IEP team decides a student should take
an alternate assessment, the school should be
able to count those students’ scores for
accountability purposes
Seclusion and Restraint
• Senate bill, Keeping All Students Safe Act
(S.2020), introduced Dec 2011
• Goal was incorporation into Senate
Committee draft of ESEA
• Introduced as companion legislation to H.R.
1381 by Rep. Miller
• We’ve had bills on seclusion and restraint
before, but never a bill like Senate bill S. 2020
Bill Details
• S&R prohibited for special-ed and gen-ed students
• Prohibited from being including in IEP
• Requires all state training to be from state-certified training center (no trainthe-trainer approach)
• Schools must collect and submit data on:
1) the number of incidents that resulted in injury to student or school
2) that resulted in death,
3) in which the school personnel were not trained or certified to perform
4) age of student, disability category, race, ELL status, and socioeconomic status
• Mandated debriefing session all personnel all school personnel in the
proximity of the student immediately before and during the time of the
restraint must attend
• Information communicated by the student in de-briefing session cannot be
used against the student in any disciplinary, criminal or civil investigation
• This debriefing session must occur within five days of the incident and
parents must receive verbal or electronic communication the day of the
incident as well as formal written notification within 24 hours of the incident
But the real kicker is…
• Serious Bodily Injury
• In S. 2020, restraints can be used in emergency situations by
trained personnel, but only when the student is at risk of
imposing “serious bodily injury” on himself or others.
• What is the ‘serious bodily injury’ standard?
1) substantial risk of death;
2) extreme physical pain;
3) protracted and obvious disfigurement
• It is NOT A broken nose or pain rated a “7” on a
scale of 1-10
What happens if you use restraint
when it’s not serious bodily injury?
• Inappropriate restraint would mean a denial of FAPEyou could lose federal funds!
• Increase in litigation that you would likely lose
• In addition, if restraint is not written into IEP the parent
would not have to exhaust administrative remedies
prior to filing a lawsuit against a school district. This
means that mediation and resolution processes, as well
as due process hearings would no longer be necessary
• Removing these procedural safeguards and allowing
parents to immediately sue the district or launch a
complaint to the SEA could dramatically increase
litigation costs for school districts.
How we are fighting back
• AASA Keeping Schools Safe report
• New comprehensive survey that YOU SHOULD
TAKE in April on use of seclusion and restraint
• PROHIBITING these techniques does not mean
they will no longer be necessary.
• S. 2020 will mean more overly-medicated kids,
more transfers to residential placement
facilities and more injuries of students and
New Legislation Can Help
• AASA is pushing new legislation that would direct
funding to schools with poor disciplinary track
records when it comes to suspension/expulsion,
seclusion/restraint and bullying/harassment
• Rationale for this is simple: these “worst
offenders” catalyze the need for federal
legislation in the first place.
• If we can improve these schools’ practices and
policies, the rationale for broad federal legislation
is greatly diminished
• This bill gives a viable alternative for members of
Congress to support instead of SSIA and S.2020
Get and Stay Involved!
• Weigh in early, weigh in often
• These decisions are made whether or not you
weigh in.
• 15 minutes per month is all it takes.
• Get to know your Senator/Representative, and
perhaps more importantly, their education
• Invite the Representative/Senator and staffer to
your district. Anecdotes and stories have a lot of
sticking power with this Congress. Let the face of
your school be the one that sticks in their mind!
Wondering how to stay on top of these
hot-button issues?
• AASA Website:
• Leading Edge Blog:
• Get weekly updates from Capitol Hill on the
Legislative Corps Weekly Update! Email me if
you’d like to be on our list [email protected]

Federal Update: IDEA, Title III, R&S, Bullying