WAUKESHA, Wis. – Two limited government groups are warning the Wisconsin Department of Public Instruction that it must involve the Legislature in writing the rules for the state plan for the Every Student Succeeds Act (ESSA) before it is sent to the federal government.
In a letter to State Superintendent for Public Instruction Tony Evers, the Wisconsin Institute for Law & Liberty and Wisconsin Manufacturers and Commerce warn that if DPI insists on creating the state ESSA plan first, the agency “could expose the State of Wisconsin to litigation and jeopardize hundreds of millions of dollars in federal funds for children attending Wisconsin’s schools.”
The process for creating the state ESSA plan, according to WILL and WMC, requires the creation of “a statement of scope,” establishing the rules for the plan that would have to be approved by the legislature before ESSA can be sent to the feds.
“The process you are using is not the process that is required by state law,” the letter from WILL and WMC says. “Policymaking is done by the state legislature.”
The letter adds that DPI is evading the necessary oversight from the legislature.
“That is problematic not only because it is yet another example of administrative overreach but because of the legal difficulties it creates for the people of Wisconsin in the future under ESSA,” the letter states.
ESSA is the federal replacement for the No Child Left Behind Act. Unlike No Child Left Behind, ESSA requires states to create report cards for the schools and come up with plans for dealing with failing schools, but leaves the policymaking to the states. In exchange for federal funds, states must develop a “state plan” and submit the plan to the U.S. Department of Education by Sept. 18, 2017.
At a state Assembly Committee on Education public hearing, State Rep. Ron Tusler, R-Harrison, asked DPI officials about the requirement that a statement of scope would have to be created.
Jennifer Kammerud, DPI’s Policy Initiatives adviser, said the Legislature will have to know what the plan will look like before the rules can be created.
“At a certain point, if there’s a feeling among all of us that there needs to be rules around something, then we should have that conversation,” Kammerud said, “But, no, right now there is no scope statement around this.”
DPI Senior Policy Adviser Jeff Pertl said typically there isn’t a statement of scope around state plans from state agencies.
“We certainly got the letter from WILL,” Pertl said.”We are certainly aware of that question. That has not been the practice historically.”
“Generally what happens is if an issue, to your point, is a mandatory requirement that is not currently placed in federal law, or in the state law, then there would need to be a change in law or a scope statement,” Pertl said.
CJ Szafir, WILL’s vice president of policy, disagreed. He said the rule-making process must take place before the ESSA plan is sent to the federal government.
“As we have been saying for weeks, the legislature is well within their legal and constitutional rights to force Evers to work closer with the legislature in making decisions for ESSA,” Szafir said in a statement Monday. “I’m glad that the DPI, reluctantly, agreed with us on this point.”
“But, as our letter with WMC indicated, DPI will have to go through the rule-making process in making decisions pertaining to ESSA,” Szafir said. “This will require legislative review of parts of the state plan. So, one way or another, the state legislature will have their say.”
“This issue is too important to play political games,” Szafir added.
When contacted for a comment on the rule-making controversy, Assembly Education Committee Chairman Jeremy Thiesfeldt‘s office said the lawmaker is consulting with the Wisconsin Legislative Council on the issue. “We are waiting on their thoughts before proceeding with any other opinions,” Thiesfeldt’s office said in an email.
Earlier in the hearing, Kammerud told legislators that DPI is ready to start writing the state’s ESSA plan.
“And we are looking and hoping and asking the chairman if we can come back every time you meet,” Kammerud said, “so that we can work with you and update you and stay involved with you in this process.”
Kammerud said that built into the process is a review period for the public, the governor and the Legislature.
“We put the legislative piece on there as a placeholder,” Kammerud said. “But I want you to know that we see that as a continual piece, not just a point-in-time piece.”
Later in her testimony before the committee, Kammerud said she hoped that DPI would have a state plan for ESSA in May, as the Legislature works through the 2017-19 budget process.
“And then, being able to make changes, working with you through all of May, June, July to make changes based on our interactions and evolving process is critical,” she said.
In order to give the governor 30 days to review the plan, Kammerud said it would have to be submitted to him by August. Afterward, DPI would make additional changes before submitting the plan to the U.S. Department of Education.
State Rep. Adam Neylon serves on the ESSA Stakeholders Council, a group of more than 30 members from different education interest groups and legislators advising DPI on the implementation of ESSA in Wisconsin. Neylon said he does not believe DPI has been working closely enough with the Legislature on ESSA.
“I am not satisfied at this point with how much the Legislature has been a part of the process,” Neylon told Wisconsin Watchdog Tuesday. “At the same time, I think that DPI has taken steps to expand engagement with the Legislature.”
Pointing to the three months the Legislature will have to review the plan before it is submitted to the governor, Neylon said he’s optimistic lawmakers would have time to work on changes.
“But I don’t think we should wait, sit back on our heels until the plan is developed and review it,” Neylon said. “I think we need to be actively engaged.”