“This reform delivers a much-needed fix to the outdated policies of No Child left Behind by rejecting the overuse of standardized tests and one-size-fits all mandates, and instead, empowering states and school districts to develop their own strategies for improvement.” –The White House
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The author of this blog wrote an article for our upcoming issue of the Michigan State International Law Review. In her article, she wrote about the importance of passing a new law under the Elementary and Secondary Education Act (“ESEA”) and looked to the policies of Canada for suggestions. While awaiting publication, a new law passed. This post examines the new law in light of her analysis. (Be sure to check back or sign up for email notifications to see the full article.)
Every Student Succeeds Act: Reauthorization of the Elementary and Secondary Education Act
Though the last reauthorization of ESEA, No Child Left Behind (“NCLB”), expired in 2007, Congress could not agree on a new education law for the U.S. until late 2015. This new law, the Every Student Succeeds Act (“ESSA”), was signed by President Obama on December 10, 2015 and officially replaces NCLB. ESSA allows states the flexibility of determining how to use federally required tests for accountability purposes and the ability to pilot innovative assessment systems. The law also strengthens state and local control, from teacher accountability to adopting curricula. Additionally, the Secretary of Education is no longer allowed to mandate or incentivize states to adopt or maintain standards like Common Core. While the ESSA helps states develop better assessments and curricula, encourages innovative teaching, and mandates better education (including cultural education) for Native students, it is silent as to cultural education for all students.
Will There be a Lot of Change Under the New Law?
The new law takes much of the power away from the federal government and gives it back to the states. This shift has the potential of being a positive move considering states likely know their students better than the federal government. However, some believe that ESSA will not have much of an impact on states’ education. This is because forty-two states and the District of Columbia already received waivers from NCLB under the Obama administration. Thus, a majority of states have already been operating under the concepts of ESSA. “States with waivers were essentially allowed to set their own goals for raising achievement, come up with their own strategies for turning around struggling schools, and design their own methods of measuring student progress.”
What is Missing Under ESSA?
In my student note for the International Law Review, I analyzed the importance of culturally responsive education/teaching for all students by looking at the inclusive education policies implemented in Canada. Numerous studies have shown that states that have implemented culturally responsive curricula have seen improvements in the achievement levels of students of color. However, the pedagogy is not widely welcomed: for example, ethnic studies has been completely banned in Arizona. Without some federal oversight in this area, it is easy for underrepresented students to continue to slip through the cracks.
NCLB was a bipartisan bill at the time of its enactment and civil rights advocates were among those who championed it. Civil rights advocates reveled in the federal oversight of the law because of the its potential ability to protect marginalized and underrepresented students. However, as NCLB unraveled, it became obvious that the law on paper and the law in practice were two completely separate things as culturally responsive education was not implemented. With less federal oversight, it may seem as though ESSA does not advance protection for marginalized and underrepresent students. However, even though ESSA prohibits the federal government from forcing states to adopt certain standards, it does not prohibit the federal government from requiring states to create a culturally responsive curriculum.
Culturally responsive education is not only valuable to students of color, but also to white students because it provides a place for all students to explore racial and cultural experiences and differences, especially with the growing racial tensions occurring today. While opponents claim that culturally responsive education is “reverse racism,” they fail to understand that the current textbooks and materials in most American classrooms are oversaturated with European and Anglo-American views, which are polarizing for non-white students. Though ESSA improved upon many of the failures of NCLB, much is needed to implement culturally responsive curricula and fully address the needs of marginalized and underrepresented students.
 President Obama Signs the Every Student Succeeds Act, The White House (Dec. 10, 2015), https://www.whitehouse.gov/photos-and-video/video/2015/12/10/president-obama-signs-every-student-succeeds-act.
 Every Student Succeeds Act, Pub. L. No. 114-95, 114 S. 1177 (2015).
 Every Student Succeeds Act § 1201.
 Every Student Succeeds Act § 1111(b)(1)(G)(ii).
 Every Student Succeeds Act § 4611, 6001.
 Emmarie Huetteman & Motoko Rich, House Restores Local Education Control in Revising No Child Left Behind, NY Times (Dec. 2, 2005), http://www.nytimes.com/2015/12/03/us/house-restores-local-education-control-in-revising-no-child-left-behind.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news&_r=3.
 Alia Wong, The Bloated Rhetoric of No Child Left Behind’s Demise, What Displacing the Dispicable Law Actually Means for American Schools, The Atlantic, (Dec. 9, 2015), http://www.theatlantic.com/education/archive/2015/12/the-bloated-rhetoric-of-no-child-left-behinds-demise/419688/.
 J. Weston Phippen, How One Law Banning Ethnic Studies Led to its Rise, The Atlantic (July 19, 2015), http://www.theatlantic.com/education/archive/2015/07/how-one-law-banning-ethnic-studies-led-to-rise/398885/.
 Arce v. Douglas, 793 F.3d at 977; see also Roque Planas, Game-Changing Ethnic Studies Bill Heads to California Governor, Huffington Post, Sept. 9, 2015, http://www.huffingtonpost.com/entry/game-changing-ethnic-studies-bill-heads-to-california-governor_55f202bee4b002d5c078d38f (trial set for Fall 2016).
 Huetteman & Rich, supra note 8.
 See Melinda D. Anderson, The Value of Ethnic Studies—For All Students, Teaching Tolerance (Jan. 15, 2015), http://www.tolerance.org/blog/value-ethnic-studies-all-students. “’While students of color must wrestle with the implications of race in their everyday lives, it’s also important for white students to understand how the exclusion of diverse perspectives and voices from the curriculum means that we do not yet have the society that we deserve . . . . For all of our nation’s founding rhetoric of freedom and equality under the law, all students in U.S. schools need to understand that not all groups were seen or treated as equal.”’ Id. (quoting Dr. Ebony Elizabeth Thomas).
 See Roque Planas, California Bill Would Require High School Ethnic Studies, Huffington Post, Jan. 15, 2015, http://www.huffingtonpost.com/2015/01/15/california-ethnic-studies_n_6480170.html.