U.S. GOVERNMENT PUBLISHING OFFICE

20–675 PDF WASHINGTON : 2018

S. HRG. 114–785 

ESSA IMPLEMENTATION: UPDATE FROM THE U.S. 

SECRETARY OF EDUCATION ON PROPOSED 

REGULATIONS 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

ON

EXAMINING EVERY STUDENT SUCCEEDS ACT IMPLEMENTATION, FOCUSING ON AN UPDATE FROM THE SECRETARY OF EDUCATION ON 

PROPOSED REGULATIONS 

JUNE 29, 2016 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

LAMAR ALEXANDER, Tennessee, Chairman 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

SUSAN COLLINS, Maine 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

BILL CASSIDY, M.D., Louisiana 

PATTY MURRAY, Washington 

BARBARA A. MIKULSKI, Maryland 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

DAVID P. CLEARY, Republican Staff Director 

LINDSEY WARD SEIDMAN, Republican Deputy Staff Director 

EVAN SCHATZ, Minority Staff Director 

JOHN RIGHTER, Minority Deputy Staff Director 

(II) 

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C O N T E N T S 

STATEMENTS 

WEDNESDAY, JUNE 29, 2016 

Page 

COMMITTEE MEMBERS

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, Labor, 

and Pensions, opening statement ....................................................................... 1 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 4 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming .................... 15 

Murphy, Hon. Christopher, a U.S. Senator from the State of Connecticut ........ 16 

Burr, Hon. Richard, a U.S. Senator from the State of North Carolina ............... 18 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 19 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 21 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 23 

Roberts, Hon. Pat, a U.S. Senator from the State of Kansas .............................. 25 

Bennet, Hon. Michael F., a U.S. Senator from the State of Colorado ................. 27 

Collins, Hon. Susan M., a U.S. Senator from the State of Maine ....................... 29 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 31 

Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska ........................ 32 

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode Island ...... 34 

WITNESS

King, John, Secretary, U.S. Department of Education ......................................... 6 

Prepared statement .......................................................................................... 8 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Ensuring Equity in ESSA: The Role of N-Size in Subgroup Accountability, 

by Alliance For Excellent Education ............................................................ 39 

Response by Secretary King to questions of: 

Senator Alexander ..................................................................................... 51 

Senator Enzi .............................................................................................. 52 

Senator Collins .......................................................................................... 53 

Senator Hatch ............................................................................................ 53 

Senator Sanders ........................................................................................ 55 

Senator Warren ......................................................................................... 57 

(III) 

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(1) 

ESSA IMPLEMENTATION: UPDATE FROM THE 

U.S. SECRETARY OF EDUCATION ON PROPOSED REGULATIONS 

WEDNESDAY, JUNE 29, 2016 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10 a.m., in room 430, 

Dirksen Senate Office Building, Hon. Lamar Alexander, chairman 

of the committee, presiding. 

Present: Senators Alexander, Murray, Enzi, Burr, Isakson, Murkowski, Collins, Hatch, Roberts, Casey, Franken, Bennet, Whitehouse, Murphy, and Warren. 

OPENING STATEMENT OF SENATOR ALEXANDER

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor, and Pensions will please come to order. 

We have a vote at 10:30. We might have another one after that. 

But I think we can surely get through the opening statements, the 

Secretary’s statement. And I think Senator Murray and I can get 

through our questions. 

What I will do is I’ll try to go vote early and then I’ll come back, 

and in the meantime we’ll continue the hearing so all Senators will 

have a chance to use their 5 minutes and ask their questions. 

This morning we have a hearing on oversight of the Every Student Succeeds Act. Senator Murray and I will each have an opening statement, and then we’ll introduce our witness, the U.S. Secretary of Education, John King. 

Secretary King, welcome. We’re glad that you’re here. 

This is our fourth oversight hearing on the Every Student Succeeds Act. Secretary King, you and I have had some debate on the 

meaning of words in the law, some discussion about it. It reminded 

me of Lewis Carroll’s book, ‘‘Through the Looking Glass,’’ when 

Humpty Dumpty said, ‘‘When I use a word, it means just what I 

choose it to mean, neither more nor less.’’ Like Humpty Dumpty, 

we choose our words carefully, and we did when we wrote the law 

fixing No Child Left Behind. 

We held 24 hearings between 2007 and 2014. In 2015, we had 

three hearings. There were 58 amendments, many other amendments. The words we used were debated, carefully and deliberately 

chosen. We meant for the words to mean what they say, nothing 

more, nothing less. That, of course, is our job. The Constitution settled that a long time ago. An elected Congress chooses the words 

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to make the laws. It’s the Executive’s job to implement the law in 

a way that’s consistent with the meaning of those words. 

Let me give you an example of doing that properly. When I had 

your job 25 years ago, in 1992, Congress did something I very 

much disagreed with. It passed legislation adopting a pilot direct 

loan program. I had argued that the Department of Education had 

no business being a bank for millions of students. There were far 

too many problems, risks and costs, but Congress disagreed. It 

passed the legislation. The President signed it and adopted a pilot 

direct loan program. 

After the President signed the bill, I had about as much time left 

in my term as you do in yours this year, and it was my job to start 

implementing the law Congress passed with which I disagreed. So, 

I did it, and I faithfully followed the words, and I asked all the universities whether they would like to be a part of the pilot program, 

and over time eventually about 25 percent did. I implemented the 

law the way Congress wrote it. 

Let me give you an example of how I think the Secretary of Education should not respond when implementing a law Congress has 

written. I’m not going to dwell on it because you and I have discussed it, and we did again this week. But it’s the proposed ‘‘supplement, not supplant’’ regulation that was rejected by a negotiating rulemaking committee. It’s a very simple provision. It simply 

says Federal title I dollars that go to local school districts are not 

meant to replace State and local dollars for schools. We give title 

I money to a school, a school district has to show the school is getting the same amount of State and local dollars it would receive 

without title I money. 

One witness testified at the last hearing the law was so plain 

that there didn’t even need to be a regulation, but you’ve come up 

with a proposal that forces school districts to show they essentially 

equalized spending of their State and local dollars among title I 

and non-title I schools, although the new law, in section 1605, explicitly prohibits exactly that. According to the Congressional Research Service, the proposed regulation ‘‘appears to go beyond what 

would be required under a plain language reading of the statute.’’ 

The proposal is so far out of bounds—these are my words—that I’m 

assuming any regulation, if there even needs to be one, will bear 

no resemblance to the proposal you’ve drafted. 

But let’s talk today about the accountability rule that the Department proposed on May 31st. This goes to the heart of the law 

to fix No Child Left Behind. In our studies, we heard more about 

testing than any other subject. I even at first proposed we eliminate the federally mandated tests. But the more we got into it, the 

more we understood that it wasn’t the federally required 17 tests 

that were the problem. It was having the U.S. Department of Education make all the decisions about what to do about the results 

of the tests, which is what we call the accountability system. 

The Federal Government decided that math and reading test results would determine whether schools and teachers were succeeding or failing. And I believe that the reason we got 85 votes 

in the Senate is because so many were tired—and these were 

teachers, Governors, chief State school officers—of the United 

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3 

room teachers in States so much about what to do with the children in their schools. 

I want to make sure that any regulation that your Department 

proposes about accountability is consistent with the words we chose 

and the intent of the bill the President signed. You’re receiving 

comments until August 1. You’ll consider those comments. I look 

forward to working with you to continue the discussions we had 

this week to ensure that the regulations comport with the law. 

Today I’ll focus on two main concerns. I’ll mention them just 

briefly. 

One is, does the proposed accountability rule actually get the 

Federal Government back in the business of setting State academic 

standards? Senator Roberts asked you about this during your confirmation hearing. Under No Child Left Behind, the Department, 

in effect, mandated that States adopt Common Core standards. 

Thirty-eight out of 42 had to in order to receive waivers from No 

Child Left Behind. This new law repealed that effective mandate 

in at least five different specific prohibitions. There was nothing 

unequivocal about it. We also changed the law from requiring a 

State to demonstrate that they have adopted challenging standards 

to say all a State had to do was to assure the Secretary that it has 

adopted those standards. We chose our words carefully. 

Your proposal in this regulation says a State must ‘‘provide evidence at such time and in such a manner specified by the Secretary’’ that it has adopted these standards. Wouldn’t this give you 

the power to reject the standards by rejecting the evidence? 

The second area that I want to mention is does the proposed accountability rule get the Federal Government back in the business 

of deciding which schools are succeeding or failing? It appears to 

re-institute the failed No Child Left Behind formula requiring that 

math and reading tests be the primary measure for deciding 

whether schools are succeeding or failing. You’ve invented out of 

whole cloth a so-called summative rating system that’s nowhere in 

the law that would essentially require all States to come up with 

an A through F system for all their schools based primarily on test 

scores on federally mandated tests in math and reading. 

The whole point of the law was to return to the States whether 

to do that or not. I know that New York City and Florida did that, 

but other States might not want to do it that way. 

Senator Murray often talks about the law’s guardrails, and we 

agree there should be some guardrails in this law in what States 

must and may not do. But again, we chose our words carefully. 

They were carefully and vigorously negotiated, and any regulation 

must stay within those words. In fact, the law also includes some 

very specific guardrails on the Secretary, specific prohibitions. 

For the last 15 years, the Federal Government has gradually become, in effect, a national school board. Congress decided last year 

to reverse that trend. The President signed the bill. That should 

put an end to it. 

On August 1, we really come to the end of an era. I call it the 

end of the ‘‘Mother, May I’’ era, an era when Governors and chief 

State school officers had to come to Washington to get permission 

to do a number of things about their schools. Those conditional 

waivers are gone. The following mandates are gone from No Child 

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Left Behind: the standards mandate, the adequate yearly progress 

mandate, the test-based accountability, the school turnaround models, the highly qualified teacher requirements, teacher evaluation 

mandates. Those responsibilities have now been restored to States 

and local school boards and classroom teachers. 

Our hope is that this new flexibility will unleash a new era of 

innovation and excellence in student achievement, one that recognizes that the path to higher standards, better teaching and real 

accountability is classroom by classroom, community by community, and State by State, and not through Washington, DC. 

Senator Murray. 

OPENING STATEMENT OF SENATOR MURRAY

Senator MURRAY. Thanks very much, Chairman Alexander. 

Secretary King, thank you for being here today. I look forward 

to today’s discussion. 

We are here today, almost 7 months after the President signed 

the Every Student Succeeds Act into law, for another update on its 

implementation. As we have talked about before, No Child Left Behind was badly broken. This law fixes it in many critical ways. But 

a law is only as good as its implementation, so I’m really glad we’re 

having this discussion today. 

I want to kick this off by focusing on two areas, accountability 

and the need for a continued collaboration and inclusion as this 

process continues, and I will have questions on a few others. 

First, as I have talked about since before we passed this law, 

ESSA is an extension of one of the most important goals of our 

country, ensuring civil rights and equality of opportunity for every 

child. In order to do that, we need to make sure schools and States 

are held accountable for providing a quality education to all of their 

students, no matter where they live or how they learn or how much 

money their parents make. 

This is critical because we know what happens when we don’t 

have true accountability. Inevitably, it’s the kids from the low-income neighborhoods, kids of color, kids with disabilities, and kids 

learning English who too often fall through the cracks. We know 

we can do better as a country, but we also know we’re not there 

yet. 

Secretary King, I appreciate the work you’ve done here to 

prioritize the regulations focused on implementing the Federal 

guardrails in the law, and I’m very glad to see strong regulations 

coming out that make sure the law operates as it was intended and 

truly accomplishes the clear accountability goals we laid out. This 

is good news for students; I hope it continues. 

I am concerned about a few provisions in the draft regulations 

that could derail those efforts; for example, allowing States to compare the performance of individual subgroups to the average performance of all students in the State. ESSA was clear: the performance of every single student in every single subgroup matters. But 

allowing States to measure subgroup performance by comparing to 

the average performance of all students could lower the expectation 

for students, because many students could be underperforming, 

driving down the average performance level within a State. 

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That’s why instead, all student subgroups should be expected to 

meet State standards and academic goals established by the State 

regardless of how they compare to other students in the State. I’ll 

have a question on this where we can go into more details, but this 

is something I’m taking a close look at, as well as other regulations 

from the Department for school interventions and supports. 

Because the intent of the law is clear, it needs to actually help 

students succeed, and we need strong regulations flowing from that 

goal if we want this law to do what so many of us hoped that it 

will. 

One other issue I want to touch on is the need for continued collaboration to encourage and ensure the voices of all stakeholders 

are heard throughout the ESSA implementation process. This is so 

important, but it won’t happen on its own. It requires the Department to use every available opportunity to assist States and school 

districts, as well as breaking down barriers to ensure full participation. 

I am pleased the Department sent a letter to States last week 

highlighting the importance of stakeholder engagement. The letter 

provides helpful suggestions to States to improve stakeholder engagement, including holding meetings at varying times during the 

day, providing accommodation and support to participants, and ensuring transparency in the process and timeline for engaging in the 

plan development process. Getting input from teachers, civil rights 

groups, parents, and many more will be essential in making sure 

the law works in the coming months and years, and that’s something I feel very passionately about. 

When we were working to pass this law, I worked hard to bring 

in voices of students and those who would be instrumental in implementing it, voices from teachers like Lyon Terry in Seattle, 

whose hard work to get his kids excited about coming to school was 

being labeled as failing under our previous broken education law; 

voices from parents like Duncan, whose son attends Highland Public Schools, where many of the kids in the school district struggle 

with poverty; and voices from high school principals like Laurie 

Wineberry from Spokane, who talked to me about the desperate 

need for commonsense policies for testing in her school. Those were 

important voices when we wrote the law; they are important voices 

as we implement it. 

I’m very glad the Department is focused on true collaboration, 

and that needs to continue. 

I’m also glad that last week the Department, in collaboration 

with HHS, provided clarity for how States, school districts, and 

child welfare agencies can implement the new foster care requirements under ESSA by working together to support foster children 

enhance their educational success. 

This Administration has a little less than 7 months left in office, 

but that’s still plenty of time to make progress on these and several 

other key areas, and I’m confident we can. I’m confident because 

all the people I just talked about, Lyon and Duncan and Laurie 

and so many others across this country, including many in this 

room today, who speak out for change and empower our Nation’s 

students and schools, inspire me to keep fighting. I know this is a 

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priority, not just for the members of this committee and the Department but for our entire country. 

Secretary King, thank you for being here today. I’m looking forward to this hearing to hear more from you and the steps you’re 

taking to implement the law so that it works for all of our students 

and what all of us can do to help to make sure that happens. 

Thank you. 

The CHAIRMAN. Thank you, Senator Murray. 

Secretary King, you’re welcome to make a statement. If you could 

keep it to about 5 minutes, we’d appreciate it. That would give the 

large number of Senators we have here today a chance to ask questions. 

Mr. SECRETARY. 

STATEMENT OF JOHN KING, SECRETARY, U.S. DEPARTMENT 

OF EDUCATION 

Secretary KING. Thank you so much. Thank you, Chairman Alexander, Ranking Member Murray, and members of the committee. 

I appreciate the invitation to come back before the committee and 

testify today regarding how the Department of Education is moving 

forward with the implementation of the Every Student Succeeds 

Act, which the President signed into law on December 10, 2015. I 

am grateful that, thanks to the leadership of Chairman Alexander 

and Ranking Member Murray, as well as the members of this committee, Congress acted last year to reauthorize this critical piece of 

legislation. 

Over the past 71⁄2 years, thanks to hard-working educators supported by families, our schools and students have made tremendous 

strides. The high school graduation rate is at a record high, and 

schools in 49 States are helping students meet college-and-careerready standards and assessing their progress. More States also are 

investing more money and helping to ensure children are ready to 

succeed when they enter kindergarten, increasing their spending 

on early learning by $1.5 billion over the past 3 years. And yet, so 

much work remains. 

Far too many students from every background still arrive at college needing remedial classes, and Black and Hispanic students 

continue to lag behind their White peers in achievement and graduation rates. The latest figures from our Civil Rights Data Collection illustrate in powerful and troubling ways the disparities in opportunity and experience for different groups of students in our 

schools. 

Just a few statistics. Students with disabilities are more than 

twice as likely as students without disabilities to be suspended. 

Schools with high concentrations of Black and Latino students are 

less likely to offer advanced courses such as calculus and physics, 

which also are critical for success in college. One out of every five 

high school students who are English learners is chronically absent. These are the very children that the Elementary and Secondary Education Act of 1965, as most recently amended by ESSA, 

was designed to protect and serve. 

The good news is that ESSA provides local communities and 

States a pathway toward excellence and equity for all students, as 

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bility in ESSA, States will be able to go beyond test scores in math 

and English by adding their own indicators of school quality and 

progress to ensure a rigorous, well-rounded education for every student. 

We know that strong literacy and math skills are necessary for 

success in college, careers, and life, but they are not sufficient. Importantly, a rich, rigorous, well-rounded education helps our children make critical connections among what they’re learning in 

school, their curiosities, their passions, and the skills they will 

need to become the sophisticated thinkers and leaders who will 

solve the most pressing challenges facing our communities, our 

country, and our world. 

Understanding that this work requires all of us working together, States are expected to involve local educators, parents, civil 

rights groups, business leaders, tribal officials, and other stakeholders in choosing other indicators of quality such as decreases in 

chronic absenteeism or increases in the number of students taking 

and passing advanced classes. 

The legislation also includes critical protections and provides additional resources for our traditionally underserved students such 

as students of color, students from low-income families, students 

with disabilities, students learning English, Native American students, foster and homeless youth, and migrant and seasonal farm 

worker children. 

States must take meaningful action to improve schools where 

students or groups of students are struggling, and in high schools 

that have low graduation rates year after year. But the flexibility 

of the law also allows them to tailor these interventions to schools’ 

specific needs. As with all legislation and policy, the quality and fidelity of their implementation are critical to success. Please allow 

me to update you quickly on our progress toward helping States 

implement this law fully and faithfully. 

The first thing we did was listen. To date, we’ve convened over 

200 meetings with stakeholders across the country. These included 

dozens of meetings with educators and school leaders in rural, 

urban, and suburban communities. We posted a notice seeking public comment on areas in need of regulation and requested feedback 

on areas in need of guidance. We received hundreds of comments. 

In response, we prioritized accountability, including data reporting and State plans, assessments under title I, parts A and B, and 

title I’s requirement that Federal dollars supplement, not supplant, 

State and local funds for education. 

As you know, this past spring we engaged in negotiated rulemaking. The negotiators were able to reach consensus on assessment, and we will move forward with publishing those regulations 

for comment. The negotiators were not able to reach consensus on 

supplement, not supplant, but we have gotten a lot of important 

feedback and will continue to listen to that feedback. 

Last month we issued our proposed rulemaking on accountability, State plans, and data reporting. It was published in the 

Federal Register on May 31st, and we will continue to receive comment through August 1st. We encourage comment on these proposed regulations and look forward to responding to that comment. 

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Consistent with the strong civil rights legacy of the law, the proposed regulations ensure a focus on all students, including historically underserved subgroups of students and accountability decisions. They ensure that meaningful action is taken to improve the 

lowest-performing schools, with families, educators, and stakeholders playing an important role in the process. They also ensure 

that educators, students and families have an accurate picture of 

students’ academic performance. 

We’ve also committed to issue guidance in several key areas 

based on the feedback we’ve received. We already recently issued 

guidance around foster youth. We will soon issue guidance related 

to homeless youth, as well as English learners, and after that on 

title II, title IV, and early learning. As we issue that guidance, we 

are guided by the many comments we’ve received, looking for technical assistance and support, and we will continue to take comment 

from stakeholders in other areas where guidance may be helpful. 

In conclusion, ESSA is a bipartisan achievement that provides 

the statutory foundation to close our remaining gaps and address 

our persistent inequities. I have appreciated hearing many of your 

thoughts on implementation of the law so far and look forward to 

hearing from you today. We take your feedback and all feedback 

we receive very seriously. I look forward to continuing to work with 

you to ensure high-quality implementation of this law supported by 

the Department that guarantees a world-class education for every 

child. 

Thank you. I’m happy to take any questions you may have. 

[The prepared statement of Secretary King follows:] 

PREPARED STATEMENT OF SECRETARY JOHN KING

Thank you Chairman Alexander, Ranking Member Murray, and members of the 

committee. I appreciate the invitation to come back before this committee and testify today regarding how the Department of Education is moving forward with the 

implementation of the Every Student Succeeds Act (ESSA), which the President 

signed into law on December 10, 2015. I am grateful that, thanks to the leadership 

of Chairman Alexander and Ranking Member Murray, and the members of this 

committee, Congress acted last year to reauthorize this critical piece of legislation. 

Over the past 7 years, our schools and students have made tremendous strides. 

Our Nation’s high school graduation rate is at a record high 82 percent, in part due 

to significant gains by historically underserved student groups. Forty-nine States 

and the District of Columbia have adopted and are implementing rigorous, collegeand-career-ready standards and aligned assessments for all students. In the last 3 

years alone, since the President’s call to action on preschool for all, 38 States and 

the District of Columbia have increased their public pre-school investments for 4 

year olds by more than $1.5 billion. When the President made that call to action, 

11 States did not offer preschool. Now all but four States do. Between 2008 and 

2013, there was a nearly 30 percent reduction in the number of students who did 

not graduate on time and college enrollment for Black and Hispanic students is up 

by more than a million. 

Yet so much work remains. Far too many students from every background still 

arrive at college needing remedial classes. And pernicious gaps remain for students 

who have been underserved for generations. Black and Hispanic students continue 

to lag behind their White peers in achievement and graduation rates. Our recent 

Civil Rights Data Collection (CRDC) release illustrates, in powerful and troubling 

ways, the disparities in opportunities and experiences that different groups of students have in our schools. Students with disabilities are more than twice as likely 

as students without disabilities to be suspended. Black and Latino students participate at lower rates in gifted and talented education programs. Schools with high 

concentrations of Black and Latino students are less likely to offer advanced 

courses, such as calculus and physics. One out of every five English Learner and 

more than a quarter of Native American high school students is chronically absent. 

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These are the very children that the Elementary and Secondary Education Act of 

1965, as most recently amended by ESSA, was designed to protect and serve. 

ESSA advances equity by upholding critical protections for America’s disadvantaged students. The law maintains resources and supports for students from lowincome families; students with disabilities; English Learners; Native American students; foster and homeless youth; neglected, delinquent, or at-risk youth; and migrant and seasonal farmworker children. ESSA requires that all students be taught 

to rigorous college-and-career-ready academic standards and that vital information 

about their progress and performance be shared with educators, families, students, 

and communities on an annual basis, through statewide assessments. For the first 

time, the law asks States to consider the progress of all of their English Learners 

toward English Language Acquisition in the context of their title I plans. ESSA also 

encourages a smarter approach to testing. Our Administration is pleased that ESSA 

includes provisions consistent with President Obama’s Testing Action Plan, which 

put forward principles for reducing the amount of classroom time spent on unnecessary standardized testing, encouraging States to limit the amount of time devoted 

to these assessments and supporting efforts to audit, streamline and improve assessments at the State and local levels. 

Through this law, Congress has reinforced the Federal commitment to holding 

ourselves accountable for the progress of all students while establishing a new, improved Federal-State partnership that moves away from the one-size-fits-all approach of No Child Left Behind (NCLB) and its overemphasis on testing as the only 

means of assessing how schools and students are doing. ESSA builds on the work 

already underway in States to develop their own strong State systems for school improvement. And it maintains the expectation of meaningful action to support students in schools where students or groups of students are struggling—and, in high 

schools that have low graduation rates year after year. 

ESSA also provides local communities and States with a pathway toward equity 

and excellence for all students, by reclaiming the goal of a well-rounded education 

for all students. Using the greater flexibility in ESSA, States will be able to go beyond test scores in Mathematics and English Language Arts by adding their own 

indicators of school quality and progress, to ensure a rigorous, well-rounded education for every student. We know that strong math and literacy skills are necessary 

for success in college, careers, and life—but they are not sufficient. That may mean 

States measuring how students—particularly historically underrepresented subgroups of students—are doing in Advanced Placement and International Baccalaureate courses, or whether they have access to rigorous coursework like physics 

or computer science. It may mean States taking a closer look at chronic absenteeism, post-secondary enrollment, placement in remedial college coursework, or 

socioemotional development as additional measures of how schools are serving all 

students. 

The possibilities are expansive, but their real-world impact for children will depend on implementation. A rich, well-rounded education helps our children make 

critical connections among what they’re learning in school, and their curiosities, 

their passions, and the skills they will need to become the sophisticated thinkers 

and leaders who will solve the most pressing challenges facing our communities, our 

country, and the world. 

As a parent of children in public school, and a former teacher, principal, and State 

education commissioner, I can tell you that the prospect of a new law of this magnitude is both exciting and daunting. There is an incredible amount of work to be 

done at all levels to implement the law. ESSA represents a significant departure 

from NCLB in many ways. There are new opportunities, such as the Innovative Assessment Demonstration Authority, and new requirements, including the requirement to publicly report per-pupil expenditure data. The law rightly shifts more authority to States and also expects more of them—from developing and incorporating 

new indicators beyond test scores and graduation rates into their accountability systems to building the infrastructure for meaningful stakeholder consultation and engagement. 

Since the bill was signed into law, we have been listening to the many stakeholders who care about implementation. We met with teachers and principals and 

their representatives, State and school district leaders, tribal officials, parents, civil 

rights leaders, and many others to hear their questions and concerns and identify 

areas in which regulations, guidance, or technical assistance might be most needed. 

We posted a notice seeking public comment on areas in need of regulation in the 

Federal Register, and also requested feedback on areas in need of guidance. We received hundreds of comments. All told, we held over 200 meetings with stakeholders 

across the country. And our outreach continues. 

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In response to that feedback, we announced our intention to regulate in a few key 

areas: accountability (including data reporting) and State plans, assessments under 

title I, parts A and B, and title I’s requirement that Federal dollars supplement, 

not supplant, State and local funds. 

As required by statute, for the title I, part A assessment and supplement, not supplant regulations, we engaged in negotiated rulemaking in late March and early 

April. Through that process, we were able to gather a lot of good input and feedback, and reached consensus on assessments, but not supplement, not supplant. For 

title I, part A assessment regulations, the consensus-based language will be reflected in the notice of proposed rulemaking that we will publish later this year. For 

supplement, not supplant, we are considering how best to address the feedback we 

received from a wide variety of stakeholders and carefully considering how best to 

meet the objective behind this proposed regulation. 

Our notice of proposed rulemaking (NPRM) on accountability, State plans, and 

data reporting was published in the Federal Register on May 31 for a 60-day public 

comment period concluding on August 1. We welcome comment from all quarters on 

these proposed regulations—including from members of this committee. In addition, 

the NPRM contains several directed questions on which the Department is seeking 

particular input. As always, we know the regulations will be improved through public input, and we look forward to receiving feedback. 

One of our top priorities in the proposed regulations was to guarantee a meaningful role for stakeholders in the development of each State’s vision for its educational 

system. It is important that the input and perspectives of parents, teachers, principals, civil rights and community leaders, and other State and local education and 

community leaders be reflected in both the initial development and the ongoing implementation of State plans under ESSA, especially as State and local leaders shape 

new school accountability systems under the law. 

Our proposed regulations on accountability create flexibility for States to create 

their own vision of an excellent, well-rounded education, and add their own indicators of school quality or student success to include in their accountability systems, 

such as chronic absenteeism or access to and success in advanced courses. States 

have flexibility to choose these indicators, as long as they can be measured by subgroup, meaningfully differentiate among schools, and demonstrate that they are related to academic achievement or graduation rates. 

Consistent with the strong civil rights legacy of the law, the proposed regulations 

ensure a focus on all students and historically underserved subgroups of students 

in accountability decisions, and provide safeguards to ensure that all students have 

an accurate measure of their academic performance, and that parents and communities are informed when students are falling behind. And the proposed regulations 

confirm that public charter schools must be included in State accountability systems. 

The proposed regulations ensure that meaningful action is taken to improve student outcomes in the lowest-performing 5 percent of schools, in schools that fail to 

graduate at least two-thirds of their students, and in schools where a subgroup of 

students is consistently underperforming or chronically low-performing. At the same 

time, the regulations build on the new law’s flexibility around school improvement 

and intervention and support locally designed solutions to improve struggling 

schools, and provide a clear role for parents, families, educators, and stakeholders 

to meaningfully participate in the implementation process. These strategies must be 

evidence-based and, as a part of determining how to improve their lowest-performing schools, districts must look at resource inequities. 

The proposed regulations ensure that parents, educators, and community members have key information about how schools and students are performing and being 

supported, providing clear and transparent data on report cards on critical measures 

of student success, school quality, and resource equity—including per pupil expenditures, and enrollment in post-secondary education. And in order to ensure that parents and students have a clear sense of how their schools are performing, the proposed regulations require a comprehensive summative rating for each school based 

on the State-designed system of indicators. 

Finally, the proposed regulations encourage States to think comprehensively 

across their programs about how to support student success, and streamline requirements, through their submission of consolidated State plans. As a former State 

chief, I know how important it is not to think about these programs as separate 

silos, and instead to think holistically about the best ways to spend Federal funds. 

In April, I announced that the Department would be issuing non-regulatory guidance on several key topics: students in foster care, homeless students, and English 

Learners. Each of these topics was raised frequently in our stakeholder outreach. 

I am happy to report that last Thursday we released the first of those three—EnsurHELPN-003 with DISTILLER

11 

ing Educational Stability for Children in Foster Care—and plan to issue guidance 

to support homeless students and English Learners at the end of the summer or 

early fall. The Department is also working on guidance to support States and districts as they implement title II, title IV, and the provisions in ESSA around early 

learning. Our aim with these guidance documents will be to highlight examples and 

best practices as States and districts make use of some of the new funding opportunities in the law. These guidance documents are designed to help States and school 

districts understand their options and share what the Department has learned 

about what works across the country. 

Last week’s guidance addresses concerns specifically related to students in foster 

care, who are more likely to lag in academic achievement or be retained in grade, 

and less likely to graduate high school, than their peers. An important contributing 

factor is the high mobility of these children, which often causes unplanned school 

changes and slowed academic progress. 

To address these concerns, ESSA added important new protections for children in 

foster care to promote greater educational stability and improved educational outcomes overall. Our guidance on these ESSA foster care provisions, released jointly 

with the Department of Health and Human Services, clarifies the new statutory requirements regarding children in foster care, promotes greater collaboration between State educational agencies, local educational agencies, and child welfare 

agencies, and highlights promising examples to help guide implementation. We hope 

that this guidance, developed with the input of a diverse group of stakeholders, will 

be a helpful tool that equips the field to successfully implement the new foster care 

provisions under ESSA and to improve supports for children in foster care more 

generally. 

We are continuing to engage with stakeholders to identify additional areas where 

guidance and technical assistance may be useful. Our goal is a Federal-State partnership that will support local school districts and their schools in helping every 

student succeed. 

As I noted at the beginning of my remarks, we have made incredible progress as 

a nation over the past several years, but there is more to be done. ESSA is a bipartisan achievement that provides the statutory foundation to close our remaining 

gaps and address our persistent inequities. I have appreciated hearing many committee members’ thoughts on our implementation of the law so far, and look forward 

to hearing from you today. I take your feedback, and all the feedback we receive, 

very seriously. I look forward to continuing to work with you to ensure a high-quality implementation of this law, supported by the Department, so that we can ensure 

a world-class education for every child. 

Thank you. I am happy to answer any questions that you have. 

The CHAIRMAN. Thank you, Mr. Secretary. 

We will begin a round of questions now. 

Mr. Secretary, my goal would be that the country feels the same 

way about this new law at the end of this year as it did at the end 

of last year. I think there was a good deal of literal rejoicing that 

we had achieved a consensus in a complex area that affected so 

many millions of American families and brought some stability to 

elementary and secondary education policy. I’m hopeful that after 

the regulations are finally done, that we’ll still feel the same way. 

In that spirit, let me continue a conversation you and I were having, and I only have 5 minutes, so I want to get in two or three 

questions. When we wrote the law, we envisioned that States 

would have time to plan for the transition to the law. You’ve heard 

and we’ve heard some States say that your proposed regulation 

doesn’t permit a State to do this. 

Let me ask you if what I’m about to describe would be an appropriate timeline for a State, in your view, that States would develop 

and implement their new accountability systems during the school 

year that begins in 2017 and 2018. That’s next year. That means 

they would be collecting data in that year. Then in the following 

year, 2018–19, they would be identifying new schools in need of improvement. That would leave the year coming up, 2016–17, as a 

transition year during which I would assume that States would 

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continue to work with their already identified schools, although 

some States might want to move more rapidly. 

Does that schedule—would your proposed regulation allow that 

sort of schedule? 

Secretary KING. I appreciate the question. Our goal is to make 

sure that as the committee has developed this law, that we focus 

on trying to expand the definition of educational excellence, giving 

States the opportunity to add indicators alongside English and 

math performance and graduation rates. We want States to move 

as quickly as they can on that. 

The CHAIRMAN. Right. 

Secretary KING. The timeline assumes that, yes, 2016–17 would 

be a transition year and that States would continue intervention in 

their previously identified schools. 

The CHAIRMAN. Right. 

Secretary KING. The timeline in the current draft regulations on 

which we are seeking comments anticipates that States would implement their new accountability system in 2017–18 and address 

the needs of schools identified in that accountability system in 

2017–18. That said, we’ve heard feedback from States that some 

States would like the ability to carry over the schools in which they 

are intervening from 2016–17 into 2017–18. That’s feedback that 

we’re open to and will continue to listen closely to comment. 

The CHAIRMAN. Just so I understand, what I said was that a 

State would collect the data and develop its new accountability system in 2017–18, and then begin to identify the schools in 2018–19. 

Secretary KING. Yes, understood. Under the current regulations, 

that would not be. The interventions would begin in 2017–18. But 

as I said earlier this week and will emphasize again, we are open 

to comment on the timeline and open to adjusting that timeline. 

The key question that States will need to address as they provide 

comment is in which schools will they provide additional support 

in 2017–18? Would that be the same schools as in 2016–17? 

The CHAIRMAN. So I’ll have time for one more question, let me 

strongly urge you to make clear to schools as quickly as possible 

that if they choose to, they could implement their new accountability systems in 2017–18, and then they could identify new 

schools under that system in the following year, 2018–19, if they 

choose to do that. 

May I move on to one other question? Your proposed regulation 

requires that all schools receive a single summative rating based 

on a State’s accountability system. An A to F rating system might 

be a good idea for some States, but in other States it’s been widely 

criticized. New York City is moving away from using an A to F system. And furthermore, the law prohibits the Secretary from ‘‘prescribing the specific methodology used by States to meaningfully 

differentiate or identify schools.’’ 

I don’t see anywhere within the law the words ‘‘single summative 

rating,’’ and how do you justify a proposed regulation requiring 

such a rating in light of the prohibition that was specifically in the 

law that the President signed in December? 

Secretary KING. The key is that parents, educators, communities 

have clear information about the performance of schools. We do not 

require in the regulations the use of an A through F rating. 

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The CHAIRMAN. A single summative rating. 

Secretary KING. States could take a variety of approaches to a 

single summative rating. They could use an A through F system if 

they so chose. They could use a numerical index if they so chose. 

Or they could use a categorical system, which actually is required 

in the statute. States will have to identify schools for comprehensive improvement, comprehensive support. In order to do that, they 

will need a summative rating to achieve that status. Similarly, 

States will need to have schools that get targeted support. That, 

too, is a categorical rating. And then there would be schools that 

would get neither comprehensive nor targeted support, and that too 

is a categorical rating. 

All we require is that they have some methodology by which they 

can identify those schools and clearly communicate about the performance of their schools with the public. 

The CHAIRMAN. My time is up. But I would like you to think 

about where in the law you get the authority to provide for a single 

summative rating. 

Senator Murray. 

Senator MURRAY. Thank you, Mr. Chairman. 

The CHAIRMAN. May I—not taking time off of you, I think I will 

go vote, if I may, and leave you in charge of the committee, and 

I’ll come right back. 

Senator MURRAY [presiding]. OK, do that. 

Mr. Chairman, before I begin my round of questions, I want to 

echo the concerns that were voiced about the timeline for identifying the schools for improvement. 

Like the Chairman, I have heard from stakeholders that States 

may not have their new accountability systems in place by the beginning of the 2017–18 school year, and as a result States would 

have to identify schools based on old data from systems designed 

before ESSA was actually signed into law, and that’s deeply concerning to teachers and parents in my State and around the country. I hope, as your Department works on the final regulation, 

you’ll address that very real issue for our States and our schools. 

On the questions, I really worked hard to make sure that ESSA 

requires schools to receive supports and interventions where any 

group of students is consistently underperforming. However, I’m 

very concerned that the draft rule weakens that requirement by allowing States to compare the performance of subgroups of students 

to other students who may also be underperforming rather than requiring States to ensure each individual subgroup of students 

makes sufficient academic progress on their own. 

In practice, that could mean that a school could have a group of 

students—say, students with disabilities—missing their State-set 

goals for many years and not receiving the support which is so important that they need to improve, as required by ESSA. How do 

you square that proposal in the regulation with the requirements 

of the law? 

Secretary KING. Yes. We think it’s very important that States 

and districts are focused on their schools where subgroups are 

underperforming. The regulations create parameters for States to 

develop their systems for identifying those schools that need targeted support for underperforming subgroups and provides options 

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that States could use a system that relies on goals and targets. 

States could use a system that relies on the gap between subgroups 

and the highest achieving subgroup, for example. But States ultimately would have to identify those schools where they have struggling subgroups, and also would have to identify those schools 

where the struggling subgroups are struggling at a level that’s consistent with the bottom 5 percent of schools as well. 

But this is a place, again, where we’re open to feedback, and certainly there are contrasting views on what the parameters for 

State subgroup, targeted subgroup identification should be, and 

we’re open to feedback on that. 

Senator MURRAY. OK. I just want to make sure they get the resources they need, and if we’re not identifying them, they won’t. 

On another issue, I’m very concerned that my home State of 

Washington is facing a homelessness crisis. We have school districts like Everett where the number of homeless students has 

risen to almost 1,000. McKinney-Vento liaisons are struggling now 

to meet the increased needs of homeless children and families, and 

that has been a goal of mine for a very long time, to make sure 

we meet their needs. 

ESSA makes a number of changes designed to increase the capacity of liaisons to identify and support homeless children so that 

they can succeed in school. How is your Department planning to 

make sure that these changes are implemented effectively? 

Secretary KING. I share your commitment to addressing the 

needs of homeless students. We’ve been holding conversations with 

students who have been homeless with advocacy groups to try to 

develop our guidance to implement the provisions of the new law 

regarding homeless students, and we expect to issue that guidance 

shortly this summer. 

Senator MURRAY. OK, I’ll be looking for that. 

I wanted to ask you about the preschool, which, as you know, is 

a priority of mine. ESSA includes new policies to encourage our 

States and districts and schools to use money for preschool programs. I’m very proud that my home State of Washington is leading the way when it comes to using this funding for preschool. 

Bremerton School District uses their title I money to raise the 

quality of child care so that kids are prepared to learn when they 

start kindergarten. 

How is your administration planning to get the word out about 

these new provisions and help States leverage their ESSA funding 

to improve access to high-quality early learning? 

Secretary KING. We think the commitment to preschool is one of 

the signature achievements of ESSA. We are working with Health 

and Human Services on an MOU around continued implementation 

of the Preschool Development Grant Program and its new form in 

ESSA, and we are working on guidance on early learning that will 

focus on best practices and examples of approaches just like the 

one you’re describing, where States may use their title I dollars or 

school improvement dollars to focus on expanding access to preschool for students most in need. 

Senator MURRAY. OK. And finally, I’m hearing a lot about teacher shortages in my State, particularly special education, teachers 

of English learners, STEM teachers. In ESSA, we rewrote title II 

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dealing with teachers to improve that. I wanted to ask you, how 

is the Department planning to make sure that States and districts 

know about the new tools in ESSA? Because we are facing this crisis. 

Secretary KING. I’m proud to say States are doing, I think, some 

good work in this area through the equity plans that were developed under NCLB and that are continued under ESSA. There’s an 

opportunity for States to refine those equity plans. We also are developing guidance on title II that we expect to issue later this year 

that will help point States toward the available resources and to 

some examples of best practice. And as you know, the President 

has also made additional proposals in the 2017 budget around 

these kinds of teacher shortage issues, including strengthening 

teacher loan forgiveness and the Best Job in the World initiative, 

which would focus on recruiting great teachers to high-need 

schools. 

Senator MURRAY. OK, very much appreciate that. 

Senator Enzi. 

STATEMENT OF SENATOR ENZI

Senator ENZI. Thank you, Senator Murray. I appreciate this 

hearing, and thank you for being here, Mr. Secretary. 

You and I had a phone conversation prior to your HELP Committee confirmation hearing in which you kind of conveyed to me 

that you didn’t intend to follow the Every Student Succeeds Act as 

it’s written. That led me to vote against your confirmation. An example is Section 8205 of the bipartisan law states that the Secretary must identify the Department of Education positions that 

are no longer required due to the elimination of programs and subsequent shift of authority back to the States. That law requires the 

Secretary to, not later than 1 year after such date of enactment, 

reduce the workforce of the Department by the number of full-time 

equivalent employees the Department identified. 

When I asked you if you were on track to reduce the number of 

positions at the Department of Education within 1 year, you stated 

to me that you were going to move those positions to other areas 

within the Department. So I wrote you a letter after that conversation asking you to clarify your answer. I had to wait 31⁄2 months 

for a response from you to that letter, and I only got it yesterday 

afternoon. I hope we don’t have to have a hearing any time we 

want to get a late response from you, and I’d like to know if you’re 

on track to reduce the number of positions within the Department 

of Education per the statutory requirements that none of us voted 

against and that was signed into law by President Obama. 

We all agreed to reduce the size of the Department of Education. 

It’s the law. Will you do so? 

Secretary KING. To be clear, we will certainly follow the statute. 

The programs that we discussed in our call that existed in 2015 

were funded through the appropriations process in 2016. Those 

programs continue, and the employees associated with those programs continue to do that work. As programs are phased out 

through the appropriations process and the close-out process is 

completed for those programs, yes, those positions would be eliminated. We talked about the individuals, the incumbents in those 

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positions, and I said I thought it was likely that some of those people would pursue other positions, available positions within the Department. 

If there are programs that are eliminated, then those staff positions will not be needed. Virtually every program that existed in 

2015 was funded through the appropriations process for 2016. 

Senator ENZI. In the Senate there are distinctly different jobs. 

The appropriators get to set the maximum amount of money that 

you can do. The authorizers set what you can do. That law is very 

clear as it’s written, and we worked on this reauthorization for 

many years, and I think we finally got it to where it needs to be. 

We’re not rewriting it, and I expect that you won’t do it as well. 

I’d encourage you to answer all congressional inquiries within a 

timely manner and actually have the inquiry come from you. I 

haven’t gotten anything from you yet. I’ve gotten it from some assistants, and I had to wait over 3 months for a response to that 

letter I wrote allowing you an opportunity to clarify an answer that 

troubled me. 

There are two other letters that were sent by Senator Alexander 

and I, and again those letters are answered by subordinates. I appreciate the response from your staff, but when I write to you, I 

expect to hear from you. Because we’re doing a vote, I won’t take 

a lot of time. I’ve got two more very important questions that I 

think are a part of the law that I will submit, so I yield the balance 

of my time. 

Senator MURRAY. Senator Murphy. Senator Murphy, I believe 

Senator Alexander should be back by the time you finish as well. 

STATEMENT OF SENATOR MURPHY

Senator MURPHY. OK. Thank you very much, Senator Murray. 

Welcome back, Secretary King. Thank you very much for being 

so available to us, making frequent visits before the committee. I 

know how important this is to you, and you know how important 

it is to us. 

I want to talk to you about the accountability regulations, and 

in particular I wanted to ask you two questions, one about the regulations around N size, which for members here that don’t know 

is the terminology we use to determine the size of the subgroups 

that are counted for accountability purposes, then I want to ask 

you a second question on how we measure the performance of the 

subgroups. 

As many of us have said over and over and over again, ESSA is 

fundamentally a civil rights law. There’s no reason for the U.S. 

Congress to be involved in the business of local education unless 

we are in the business of making sure that this is a basket of civil 

rights protections. We made very clear in the law that we wanted 

schools to have specific, targeted interventions for what we call 

subgroups. These are populations of poor students or disabled students or minority students. But we also specifically said in the law 

that Congress wasn’t going to dictate, nor was the Administration 

going to dictate, how big these subgroups would be. But clearly, 

there is a number that is in violation of both, I would argue, the 

spirit and the letter of the law. If you had a subgroup that was 100 

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students large and anything under 100 students didn’t count as a 

subgroup, then you wouldn’t be in compliance with the law. 

Rightfully, the regulations, true to the law, not stating a particular number, say that if your number is 30 or higher, you have 

to explain why. And the reason for that is that if every State pegs 

their number at 30 or higher, then one out of every five disabled 

students, for instance, in this country won’t be subject to any accountability standards. 

I wanted to ask you about why you picked this number 30, because I think there’s a lot of us who are concerned that that number is too high; that, in fact, there are 29 States today that have 

N sizes that are under 30 that under this regulation might consider 

moving that number up. 

Just talk to me about this issue of why you picked 30. Many of 

us are very concerned that if that becomes the new normal and any 

minority student or poor student who is in a school and there’s less 

than 30 of them, they won’t be counted, that leaves a lot of kids 

outside of the accountability system. Talk to me about that. 

Secretary KING. As you indicated, the law preserves the ability 

for States to set the N size, but we wanted to make sure that there 

were thoughtful parameters as States think about what N size to 

use. We require them, as you said, to provide a justification if they 

are going over 30. We did that based on research evidence. There 

was an IES study that showed that for students with disabilities, 

if you set the N size above 30, you would only get to about 32 percent of students with disabilities. But if you set it at 30 or lower, 

you would get to 79 percent of students with disabilities potentially 

being identified within subgroups in schools. 

That’s how we came up with 30. But the idea is that States 

would give their explanation in their State plan, and that would be 

subject to peer review. 

Senator MURPHY. How about the second question about the accountability regimes? You’ve allowed for a multitude of factors to 

be built into accountability standards, but I’m concerned that there 

could be States that use standards that don’t necessarily tell the 

true story about how students are performing. 

For instance, in my State, we’ve got pretty high graduation rates, 

but we have pretty low proficiency rates in math and reading. For 

instance, 58 percent of African American high school students are 

proficient in reading, and yet they have a graduation rate of 80 

percent. If you use graduation rates, then you’re not really seeing 

the underlying story, in part because you’ve got things like social 

promotion that pushes kids out the door. 

What are the tools at the Department’s disposal to make sure 

that these accountability systems are actually capturing the true 

performance of students? 

Secretary KING. The statute really gives States the responsibility 

to design their accountability systems, as you know, but also says 

that the academic indicators need to have substantial weight and 

much greater weight than the non-academic indicators. We’ve tried 

to structure the State plan process so that the peers will evaluate 

whether or not States have indeed complied with that substantial 

weight requirement and much greater weight requirement by ensuring that schools where students aren’t making academic 

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progress continue to get the comprehensive support that they need 

to improve performance for students, that schools that are getting 

targeted support because of subgroup under-performance actually 

see meaningful improvement in the academic performance of those 

subgroups. 

We’ve tried to balance both State flexibility with civil rights 

guardrails to make sure that States really are paying attention to 

the kids who are most at risk. 

Senator MURPHY. I ask these questions to make the committee 

aware there are a lot of us that were very involved in these accountability regulations who frankly don’t think they go far 

enough. To the extent that in this city you know you’ve done something right when both sides aren’t happy, I know there are many 

that think some aspects of the regulations go too far, there are 

many of us who think that they could have gone much farther, and 

I appreciate you taking concerns from both sides. 

Just a last thing, Mr. Chairman. Some of the data that I was referring to was in a study called Ensuring Equity in ESSA: The Role 

of N-Size in Subgroup Accountability, from the Alliance for Excellence in Education. I ask to enter this into the record. 

The CHAIRMAN. [Presiding] Thank you. It will be, Senator Murphy. 

Senator MURPHY. Thank you, Senator. 

[The information referred to can be found in additional material, 

and online at https://www.all4ed.org.] 

The CHAIRMAN. Senator Burr 

STATEMENT OF SENATOR BURR

Senator BURR. Thank you. 

Mr. Secretary, I’ll be brief because of the vote. 

Why does the Federal Department of Education not trust local 

schools to solve problems in their own school systems? 

Secretary KING. We do trust State and local flexibility. At the 

same time, we know there’s a long history in this country of States 

and districts not—— 

Senator BURR. So the fact that we passed legislation that reinforced their local flexibility, you don’t buy that. 

Secretary KING. We think that local flexibility is important, but 

we also think the law importantly preserves civil rights guardrails 

that are essential. 

Senator BURR. Mr. Secretary, have you ever been to a school in 

North Carolina? 

Secretary KING. I have visited schools in North Carolina, yes. 

Senator BURR. Have you been there since you’ve been Secretary? 

Secretary KING. I’ve not been to a school in North Carolina since 

I’ve been Secretary, no. 

Senator BURR. You cite in this rule within the proposed regulation that you’re forcing this new accountability regime on 90,000 

schools. You point to research done in 2014 by the National Bureau 

of Economic Research on how NCLB accountability systems 

incentivize school label for sanctions improved in areas that led to 

their identification in the State’s accountability system. That reHELPN-003 with DISTILLER

19 

search focused on North Carolina, and I took interest in this citation because of North Carolina. 

What your rule doesn’t mention in citing that research is that 

the authors of the research explicitly cautioned that given the limited breadth of the research finding, ‘‘one should not jump to the 

conclusion that No Child Left Behind-style sanctions regimes is an 

effective way to identify schools in need of change.’’ 

Simple question: Why would you continue to head down this destructive path? 

Secretary KING. I think our regulations actually preserve State 

and local flexibility, advance State and local flexibility within the 

areas of defining educational excellence and defining the interventions in struggling schools. I agree that one of the problems in No 

Child Left Behind was an overly prescriptive set of responses to 

struggles in schools. 

At the same time, we have to make sure that States and districts 

pay attention when their students of color or their low-income students or their English learners or their students with disabilities 

are not performing. 

Senator BURR. In your comments back on this rule, have you had 

people supportive of this pathway that you’re headed down? 

Secretary KING. The proposed accountability regulations reflect 

much of the comment that we have received, and I anticipate that 

we will continue to get comment, particularly from parents’ organizations, educator organizations, and civil rights organizations who 

worry that in the absence of the civil rights guardrails that the law 

puts in place—— 

Senator BURR. I would ask that you share with the committee 

that list of groups that have come out and said they’re supportive 

of this pathway. 

I thank the Chair. 

The CHAIRMAN. Thank you, Senator Burr. 

Senator Warren. 

STATEMENT OF SENATOR WARREN

Senator WARREN. Thank you, Mr. Chairman. 

Thank you for being here, Secretary King. 

The Department of Education recently released its latest Civil 

Rights Data Collection Report, a survey of American public schools 

that looks at students’ access to resources like advanced classes 

that prepare them for college. 

But when I reviewed the data, I’m very concerned by what I see. 

Low-income students and students of color are disproportionately 

attending schools where they simply don’t have access to the kinds 

of classes they need for our most competitive colleges and universities. I just want to highlight one example out of the report. According to your data, the clear majority of mostly White high 

schools offer calculus, which makes sense, because it is a prerequisite for most colleges. But only a third of mostly Black and 

Latino high schools offer calculus, which means that the kids attending two-thirds of mostly Black or Latino high schools are at a 

serious disadvantage in preparing themselves for college. 

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Secretary King, can you explain how the Department’s implementation of ESSA and your proposed regulations will help close 

these critical opportunity gaps for our students? 

Secretary KING. Certainly, our hope is that as States develop 

their accountability systems, that they will include indicators like 

access to advanced courses. You’re exactly right about calculus. We 

see a similar pattern around chemistry, around physics, around access to advanced placement and international baccalaureate 

courses. States have the option to include that kind of indicator 

and then to act on it, we hope. 

We also think it’s important that States are transparent about 

equitable access to resources, and advanced course work could be 

a part of that. 

We also think this goes to the heart of the supplement, not supplant question, that to the extent that schools serving high-need 

students can’t offer these courses, it is often bound up with a lack 

of resources, and ensuring that the Federal resources are indeed 

supplemental is essential to making sure that kids have equitable 

access to these opportunities. 

Senator WARREN. Thank you very much. I am glad that your proposed rules give us better data to shine light on these disparities. 

But we’re also going to need to use those data to make clear to 

States that short-changing students based on where they live or 

their family incomes is just unacceptable, and I hope you’ll continue to deliver the message loud and clear as you move forward 

with the accountability provisions in ESSA. 

Now I want to turn to some other troubling data recently out of 

the Department. This time it’s on the higher education side. New 

data from the Department’s Student Loan Bank show that despite 

the availability of many repayment options to help students, we’re 

still facing an avalanche of student loan defaults. When a student 

defaults, the bank hammers them, seizing wages, slamming their 

credit reports. But it seems that life isn’t so hard for the servicers 

who get paid to manage those loans. 

So here’s my question, Secretary King. The Department announced a new competition for these servicing contracts, and I 

know you are looking to clean up these deals. Can you tell me what 

you’re doing to make sure that the next round of negotiations creates some accountability for these companies so they actually help 

families who are struggling instead of just fattening their own bottom line? 

Secretary KING. Yes. We are developing a new servicer contract 

and a new servicer structure that will involve a common platform 

with multiple servicers providing services through that platform. 

Borrowers will have a single entry point where they can get and 

submit information, but then servicers will compete on performance. 

One of the key things that we’ve done in that servicer contract 

re-compete is built in a set of principles that implement the President’s Student Bill of Rights, Student Borrowers Bill of Rights. 

Those principles were developed jointly with the Treasury Department and CFPB and we think represent what good servicing 

should look like. 

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21 

This contract will proceed in several stages: first, identification 

of the platform provider, and then the identification of the servicers 

who will work on that platform. But we intend to ensure that 

servicers do a good job supporting students, and better than they’ve 

done. 

Senator WARREN. Good. I’m very glad to hear this and this commitment on your part. Let me put a finer point on this. What role 

should the company’s political influence here in Congress or their 

connections to officials inside the Student Loan Bank play in the 

selection process for these servicers? 

Secretary KING. None. 

Senator WARREN. Good. Thank you. 

Three years ago the head of the Student Loan Bank testified in 

this committee that it was basically impossible to hold one of the 

biggest servicers accountable for breaking the rules because they 

were more or less too big to fail, and this has to stop. Past performance matters. If the Department grants another massive new contract to a company with a track record of harming students and 

members of the military, or if the company is facing State AG and 

Federal lawsuit investigations, then I think that’s a serious problem. I know that you want real reform, and that means holding 

these student loan servicers accountable. I know that those companies have a lot of lobbyists right here on Capitol Hill, but the families and the students don’t, and they need you. 

Secretary KING. Absolutely. 

Senator WARREN. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Warren. 

Senator Isakson. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Chairman Alexander, and thank 

you for your great work on ESSA, and thank you for calling in advance and asking what I was going to ask you so you had a week 

to prepare. 

No. 1, I’m married to an IDEA teacher, speech and hearing, who 

worked with special education for years, have always had a quarrel 

with the 1 percent cap on cognitive disability for assessment purposes because I believe that the IEP ought to be required for every 

student in America’s schools to determine the best educational plan 

given their ability, both exceedingly good or exceedingly bad. 

With that said, what are you doing to help ensure that kids are 

identified for IDEA purposes in terms of their education, and what 

are you doing to give us the flexibility necessary to see to it a kid 

can be assessed on the mechanism that’s best for their intellectual 

capability? 

Secretary KING. This was one of the topics that was part of the 

negotiated rulemaking, and consensus was reached on the structure both for the requirements for the 1 percent cap and also the 

waiver process for the 1 percent cap. That consensus reflects the 

principle that we believe that all students with the right supports 

and accommodations can ultimately succeed, except there is an important need to pay attention to the needs of those with severe cognitive disabilities who may be unable to achieve at the same level. 

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So the negotiators tried to strike the right balance in both defining the cap and defining the requirements for the waiver. 

Senator ISAKSON. I want to yield in favor of the child every single 

time with a disability. We need to make sure they’re getting the 

appropriate assessment, and the arbitrary cap by government is 

not the right way to run that program. 

Second, on what Ms. Warren was asking, Senator Warren was 

asking a minute ago, aren’t all student loans now direct loans from 

the government? 

Secretary KING. There are student loans that are taken through 

private lenders, but within the direct loan program we’ve tried to 

put in place repayment options that we think will help address 

some of the default problems that we have by allowing folks to cap 

the percentage of their income that goes to student loan repayment 

at 10 percent of their income. 

Senator ISAKSON. The service agents are agents for the government, are they not? 

Secretary KING. The servicers do work for us under contract, and 

unfortunately I think historically those contracts have not built in 

all the borrower protections that they should have, and we intend 

to ensure that they do going forward. 

Senator ISAKSON. That would be our fault, not the servicer’s 

fault. Is that not correct? 

Secretary KING. At the end of the day, the servicers also have a 

responsibility to not try to read the contract to find loopholes to 

provide less than adequate service to students. And rather than 

focus on where we’ve been, we’re focused on going forward and ensuring that the contracts build in the right protections for students. 

Senator ISAKSON. The point I want to get to is this. One of the 

biggest things we need to do in education is teach our kids how to 

be responsible in managing their own money and learning the life 

skills that are necessary. Student loans are a good way for us to 

do that. I think the more we focus on teaching our students to borrow what they can repay and to understand repayment is an obligation, not just a promise, we’ll be a lot better off. I just wanted 

to throw that in real quickly. 

On the 95 percent assessment threshold—are you familiar with 

what I’m talking about? 

Secretary KING. Yes. 

Senator ISAKSON. We gave a lot of flexibility to the systems, and 

I gave them a lot of flexibility to allow students’ parents to opt 

their child out of an assessment. Are you familiar with that provision? 

Secretary KING. I am. 

Senator ISAKSON. It’s possible because of opt out and other anomalies that may happen, the system may fall below 95 percent. Is 

that not correct? 

Secretary KING. Both NCLB and the Every Student Succeeds Act 

have a requirement that States would assess all students, and 

ESSA, as you know, has a specific requirement for State action 

when the participation falls below 95 percent. 

Senator ISAKSON. That’s my point. The 95 percent is a goal, and 

the State has the responsibility, if the State doesn’t meet that goal, 

to execute a plan to get to that point. Is that not correct? 

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Secretary KING. In our regulations, we provide a set of options 

for States, including a State-determined option for how they would 

address being under the 95 percent participation, and ultimately 

getting to the all-student participation that’s required by the statute. 

Senator ISAKSON. Are you sure they’re options, or are they mandates? 

Secretary KING. They’re a set of options, including a State-determined option. 

Senator ISAKSON. Because I think our intention—Secretary Alexander, Chairman Alexander now, past Secretary Alexander, tried 

to get us to do, and we did a very good job of it, setting goals but 

leaving the administration, the punishment, the calculation and 

the goals, or the mechanisms to achieve those goals to the States, 

not to the Federal Government. 

Secretary KING. This is a place where there will be State options, 

and the States would describe which option they had chosen in 

their State plan that would be subject to peer review. 

Senator ISAKSON. I think the point is it’s very important that we 

carry out not only the letter of the law but the spirit of the law, 

and the spirit of that law was to leave the determination to the 

local board of education or the State wherever possible to achieve 

and meet those goals. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thanks. 

Mr. Secretary, I don’t usually do this on the way to Senator 

Franken, but you have no authority in the law to prescribe specific 

options. That’s the job of the Congress, and that’s something we 

need to talk about as we go along. None whatsoever. 

Secretary KING. Just to be clear—— 

The CHAIRMAN. None whatsoever. 

Secretary KING [continuing]. We describe options, and then 

States choose, including—— 

The CHAIRMAN. But you do not have the authority to define what 

options States may choose. The State has the specific authority and 

flexibility under the law to do that. That’s what No Child Left Behind kept doing, and that’s what the problem is with this rule. 

Secretary KING. One of the options is the State defines exactly 

what they will do, and then that is part of their State plan. So just 

to be clear, although we describe options, the State is determining 

their approach entirely. 

The CHAIRMAN. That’s helpful. Thank you for allowing me to 

clear that up. 

Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. Thank you, Mr. Chairman. 

I want to talk about something that is of particular interest to 

me and that I was very glad we were able to get into ESSA, which 

is making sure that foster kids can stay in their school when they 

change foster parents. We had testimony, I think it was back in 

2010, of a young lady named McKayla from Minnesota who ended 

up going to Hamlin and has done very well, a very impressive 

young lady. She had missed 4th grade entirely when she changed 

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parents. These kids, foster kids, have 10, 11 foster parents, routinely, and very often the only constant in their life is their school. 

What has been going on is the kids who have a favorite subject, 

a teacher, an activity in their school that is the biggest constant 

in their life, friends, for goodness sake, in a school, suddenly 

change foster parents and they are forced to go to a different 

school. Everyone sort of agreed finally, we got this done. So basically the way we wrote it in ESSA is the school district and the 

public welfare agencies have to figure out how to pay for transportation. If the kid is moved outside the school district to get to 

school, somebody has to pay. 

In your proposed regulation, school districts are ultimately responsible for providing and funding transportation for foster kids 

to their school of origin. Since it’s the comment period on that regulation, I’d like to comment, and I’d rather you go with your guidance, because your guidance does not specify who is ultimately responsible. I’d like the school and the public welfare agencies in the 

State to be working together on this. I want to eliminate any kind 

of barrier to this happening. This makes such a difference to these 

kids, and these kids deserve to stay in their school. That’s my comment. 

Secretary KING. I appreciate that. We share the commitment 

around educational stability for foster youth, because kids are moving between schools is often the reason that kids miss school, do 

not make the academic progress they need to, are retained in 

grade, drop out. 

What we try to do in the guidance is say that the child welfare 

agencies and the school districts should be working together, and 

we offer examples of best practice around the country, including 

best practice around dispute resolution when the child welfare 

agency and the LEA have different perspectives. It is true that in 

the regulations we try to offer a path for how those disputes would 

ultimately be resolved around transportation costs. But, yes, we 

are taking comment and we will consider all comment, including 

yours. 

Senator FRANKEN. Thank you for including my comment. I’m a 

Senator. My goodness, I think all of you should be insulted. 

[Laughter.] 

I want to talk about something else that I worked for to get into 

this bill. Given that one in five youth between the ages of 13 to 18 

have or will have a serious mental illness, I firmly believe that 

mental health is one of our country’s most pressing unmet needs. 

I’m proud of the work that we’ve been able to accomplish on mental 

health, but we have a long way to go. 

In ESSA, we include provisions that I’ve long championed to increase mental health services in schools. That’s why I was very disappointed that the spending bill that passed out of the Senate Appropriations Committee did not provide adequate funding for ESSA 

student support and academic enrichment grants, which includes 

my mental health provisions and other critical programs that 

Americans really care about. That’s really something that parents 

care about, and the schools care about, and I’m hopeful that we can 

increase the funding once this bill comes to the floor. 

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My question is what can the Department of Education do to support school districts that are trying to expand mental health services at the local level? Because I’ve seen this work in school districts that do this. I’ve had roundtables with parents who say it has 

changed their family, it has changed their kid’s life, it has changed 

them. 

Secretary KING. Yes. We share your disappointment with the 

proposed funding level for title IV. Certainly, the President proposed a significant increase around title IV, $222 million in additional funding for title IV, because we’d like to see more access to 

mental health services, among other elements that are addressed 

in title IV. 

We issued joint guidance earlier this year with Health and 

Human Services to help guide schools and districts on how they 

could take advantage of the Affordable Care Act to support schoolbased mental health services. We think there are existing dollars 

under ACA and Medicaid that could be used to support schoolbased mental health services, and we offer some examples of best 

practices in that joint guidance. 

We also, through our Promise Neighborhood Grant program, are 

supporting efforts to match schools with community-based organizations and community-based health providers to try to get those 

mental health services to kids and to families, because often mental health issues in the family have an impact on children as well. 

I share your commitment and would love to see the title IV funding higher. 

Senator FRANKEN. OK, thank you. 

Thank you, Mr. Chairman, and I hope that my colleagues share 

this commitment to mental health in schools so that we can maybe 

get a little bit more funding for that. 

The CHAIRMAN. Thank you, Senator Franken. 

Senator Roberts. 

STATEMENT OF SENATOR ROBERTS

Senator ROBERTS. Thank you, Mr. Chairman. 

As the distinguished chairman of the committee has said many 

times, the bill which we passed last year to reauthorize ESEA restores responsibility to States for their local schools by providing 

increased flexibility to design and implement their education programs. The key word here is ‘‘local.’’ I’m very proud the bill includes my language to permanently end the Federal Government’s 

ability to use any incentive or tool or coercion to force States to 

adopt Common Core. If they want Common Core, fine. If they 

don’t, that’s the intent. 

In fact, just to be absolutely clear, here’s what my language says: 

‘‘No officer or employee of the Federal Government, including 

the Secretary, shall attempt to influence, condition, incentivize, 

or coerce State adoption of the Common Core State standards, 

or any other academic standards common to a significant number of States or assessments tied to such standards.’’ 

Here’s the problem. A high-ranking education leader in Kansas 

recently pointed out to me—and the fact that he wants to be anonymous is rather telling— 

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‘‘It is not, in our opinion, that the new ESSA law, based on 

the current version of the proposed regulations, is giving 

States flexibility around developing a rigorous and accountable 

model. It appears that, once again we can only build something 

as long as it meets a strict Federal requirement.’’ 

That certainly sounds like, to me at least, that the Department 

of Education is not following the spirit and intent of the Every Student Succeeds Act. As everyone is aware, ESSA has countless prohibitions explicitly stating that the Federal Government is prohibited from mandating, directing, controlling, coercing, or exercising 

any direction or supervision over academic standards that States 

develop or adopt, including Common Core State standards. The Administration is prohibited from influencing, incentivizing, or coercing States or school districts to adopt any specific academic standards. 

Mr. Secretary, I would like specifically to bring your attention to 

Section 1005(b) of the Act, which states that, 

‘‘States shall provide an assurance’’—a-s-s-u-r-a-n-c-e—‘‘assurance that the State has adopted challenging academic content standards.’’ Let me repeat that. A State shall only provide 

an assurance that they have adopted academic standards. 

Turning to proposed regulation 29916, which addresses the State 

plan requirements for challenging academic standards and academic assessments, this section would require each State education 

agency to provide evidence, evidence demonstrating that it has 

adopted changing academic content standards and aligned academic achievement standards. 

My question: What is the evidence for? Who is the judge? Where 

is it going? What Federal involvement or requirement has now 

been reinstated regarding academic standards? This, to me, is an 

example of the Department of Education trying to influence State 

academic standards once again, and it is also contrary to your commitment to me with respect to the intent, as well as the explicit 

prohibitions in the law, during your nomination hearing. In my 

view, there is obviously a big difference between providing an assurance and providing evidence. This proposed regulation eviscerates the intent of Congress and ESSA. 

Mr. Secretary, would you please explain what I think is a blatant 

violation of numerous prohibitions, and also the ESSA statute, that 

clearly says a State need only to provide an assurance that they 

have adopted academic standards, not evidence, to somebody within the dusty Common Core halls of the Department of Education? 

Secretary KING. Let me say as clearly as possible that standards 

are determined by States. The law is clear on that point. We are 

clear on that point. I’ve been clear on that point, as you said, in 

our prior conversations. 

The law also requires a process for ensuring that States have an 

assessment system that has been through peer review and that is 

fair to students and reliable. As part of that process, States provide 

evidence to peer reviewers, other States, and experts on assessment who participate in a process to ensure that the State has 

gone through a rigorous and reliable process of matching their 

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standards to their assessments. And as part of that process, that 

peer review process, which is underway—— 

Senator ROBERTS. We’re doing a two-step here, not a one-step. 

Secretary KING. This is unrelated to the content of the standard. 

Senator ROBERTS [continuing]. The box and say we are assuring 

you that we’re doing that with regards to your standards that are 

probably in writing so that they can understand what they are. But 

you’re saying that there is a secondary step that they’re going 

through with a whole bunch of folks who have to then say, OK, we 

are providing evidence. I don’t know what that evidence is. I don’t 

know what it means. Is it a lot of paperwork? Is it a rigorous test? 

What is it? 

Secretary KING. The longstanding peer review process required 

under NCLB is still in place under ESSA, a peer review process to 

ensure that the assessment system that a State develops is a valid 

one. And as part of that process, the peer reviewers—— 

Senator ROBERTS. Who are the peer reviewers? 

Secretary KING. Those are other States and would include experts on assessment who would participate in the peer review process. 

Senator ROBERTS. What, the big 12? What are we doing here? 

Secretary KING. These would be folks who work in other States 

and have worked on assessment systems across States who try to 

ensure that the assessments fairly reflect the law, are consistent 

with the law. So what States are doing is providing evidence of a 

process by which they have aligned their assessments with their 

standards. 

Senator ROBERTS. But we said assurance. We said assurance. We 

didn’t say—this is two different things. Now you’ve got peer review 

folks. Perhaps they’re helpful. But again, they could just check the 

box with assurance, as opposed to providing evidence to—I don’t 

know how many peer review groups you’re talking about. But it 

seems to me we’re going to have to have some further discussion 

about this, without any question. I appreciate your response. 

Secretary KING. And we are open to feedback on how we can 

make absolutely clear in the regulations that standards are set by 

States. That is clearly a shared commitment. 

Senator ROBERTS. I think that there’s a peer review for my distinguished colleague from Massachusetts. In Kansas, perhaps that 

would not be received with open arms, and probably from Kansas 

to Massachusetts would be the same thing. I apologize to my colleague. 

The CHAIRMAN. Thank you, Senator Roberts. 

Senator Bennet. 

STATEMENT OF SENATOR BENNET

Senator BENNET. Thank you, Mr. Chairman. Thank you very 

much for holding this hearing. 

Mr. Secretary, it’s great to see you again. Thank you for your 

leadership. 

In Colorado last week a bunch of folks came together and had 

an ESSA summit there. There’s a lot of excitement about the possibility of now being out from under No Child Left Behind. We’re 

having conversations about how we use that flexibility, at the same 

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time make sure we’ve got the rigor that’s needed. I know you yourself were a former principal of a school. 

I wonder whether you could talk about what the Department is 

doing to ensure that the voices and the knowledge of the people 

that are working in our schools, our teachers and our principals, 

are being involved in ESSA implementation around the country. 

Secretary KING. Thanks. That’s been a priority for us, and also 

a priority that we have communicated to States around their process. We’ve held over 200 meetings around the country with educators, with parents, with community leaders as we’ve worked to 

develop regulations and guidance, and received comments from 

over 700 individuals and organizations. 

At the State level we put out a Dear Colleague letter just last 

week to States laying out recommendations and best practices 

around stakeholder engagement. I think lots of States are doing a 

good job on this, but we worry some aren’t. Some haven’t worked 

with their districts to make sure that teachers or principals, for example, can get release time so that they can participate in this 

process. Some States have been slower than others to engage tribal 

leaders and civil rights organizations. We’ve been encouraging folks 

around the Council of Chief State School Officers, put out a guide 

to stakeholder engagement that they developed with a number of 

organizations, including civil rights organizations, and we’ve made 

clear in the regulations stakeholder engagement throughout the 

process is required. 

Senator BENNET. One of the things that is certainly true of the 

change in the law is that we have devolved the responsibility for 

implementation back to the States in a fairly significant way. How 

do you expect over time we’re going to be able to identify those 

places where they really are setting a rigorous standard for kids 

and demanding that standard for kids in places where it’s a less 

rigorous standard, and what do you expect the conversation to be 

like? 

Secretary KING. I think there are a number of protections around 

that. One is the peer review process at the outset that I was just 

talking with Senator Roberts about. There’s also the transparency 

requirements that I think will help us understand where subgroups 

are not performing, and we’ll be able to see are States making 

progress there. 

But one of the things the Department is going to need to be vigilant about is the law provides a lot of flexibility for States around 

how to intervene in schools that are struggling or schools with low 

graduation rates or schools with struggling subgroups, but we’ve 

got to make sure that those interventions actually translate into 

progress and that States respond when that progress isn’t made. 

Senator BENNET. Could you talk also a little bit—it’s often been 

said up here that this law is a civil rights law, and I agree with 

that. I think there’s not really any other reason for the Federal 

Government to be involved in education other than that at the K– 

12 level. Could you talk about what you’re doing, the Department 

is doing to ensure that as we go forward that spirit is maintained, 

and the commitment to equity that I think everybody up here 

shares to one degree or another is also maintained? 

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Secretary KING. Yes. We tried throughout the accountability regulations to preserve the important civil rights guardrails, making 

clear that States need to provide disaggregated data for all subgroups, not just at the summative level but for each of the accountability indicators that they put in place; that States need to have 

a clear process in place for identifying schools that have consistently underperforming subgroups, and then have meaningful intervention in those schools to improve subgroup performance; that 

there’s clear data disaggregation around equitable access to resources so that we can ensure that schools are providing opportunity on an equitable basis to our students of color, our low-income students, our English learners, our students with disabilities. 

This work is going to require continued vigilance on the part not 

only of the Federal Government but of States and districts to make 

sure that we don’t let kids fall through the cracks. 

Senator BENNET. My time is almost up, Mr. Secretary. I wanted 

to get in one last question. There are no more Federal models for 

escalating consequences as there were in No Child Left Behind. 

That’s now left to the States and local districts to figure out, to research and design these, and I just wonder whether you’ve thought 

that through a little bit, about how people are going to have the 

research they need in order to implement targeted school improvement strategies in this new world. 

Secretary KING. Yes. It’s very important that folks do that informed by evidence about what works, and certainly in efforts like 

the Education Innovation and Research Fund, the work of IES will 

help to provide that evidence base. We try in the regulations to 

talk about how States can, as they move progressively forward in 

more intense interventions if schools aren’t making progress, they 

need to rely on stronger evidence of effectiveness as they move 

through those levels of intervention, because we do have some good 

evidence around interventions that work. We know that in schools 

with struggling English learners, professional development for 

teachers around working with English learners using dual language strategies has a strong evidence base, and we want to make 

sure that folks are thinking about that as they plan their interventions. 

Senator BENNET. Thank you, Mr. Secretary. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Bennet. 

Senator Collins. 

STATEMENT OF SENATOR COLLINS

Senator COLLINS. Thank you, Mr. Chairman. Mr. Chairman, as 

I’ve listened to the debate at this hearing today, I am reminded of 

a provision that I wrote that was included in the Dodd-Frank Act 

that was known as the Collins Amendment. I had a longstanding 

battle with Federal regulators on the implementation of that 

amendment, and finally the Banking Committee actually held a 

hearing on what was the intent of the Collins Amendment. And 

needless to say, I was the lead-off witness. I started off by pointing 

out that I was Collins, I am Collins, I’m still around, and I know 

what my intent is. 

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I would say to you, Mr. Secretary, hearing the debate today, that 

Senator Alexander and Senator Murray, who are the authors of 

this rewrite of the Elementary and Secondary Education Act, are 

still here. They know what their intent is. They were careful in 

drafting the bill. And that’s why there is this frustration that many 

of us are feeling. 

I want to talk about the reporting requirements that are included in your proposed regulations. I think all of us can agree that 

transparency is essential, but reporting requirements should not be 

so onerous that small school systems in rural States have difficulty 

in complying unless they are specifically authorized by the Every 

Student Succeeds Act. We want to make sure the reporting requirements give parents and communities the information about their 

State accountability systems, but the proposed regulations establish many more reporting requirements than required by the law. 

They include, among other things, how States calculate and report data on the report cards, additional data for charter school 

students, and procedures for calculating reporting district and 

school expenditures. 

Two questions. Can you point to specific authority in ESSA that 

you believe allows the Department to propose these additional reporting requirements, which appear to me to be contrary to the intent of the law? And second, how does the Department square 

these additional reporting requirements with the mandate in the 

law that report cards be concise, understandable, and accessible? 

Secretary KING. We believe the reporting requirements in the 

draft regulations are consistent with the statute. We certainly are 

open to feedback on the reporting requirements, as we are to the 

entire regulation, look forward to feedback from stakeholders. 

There are places in the statute where, in order to fulfill the requirement of the statute, additional data will be necessary for 

States. But again, we are open to feedback on the proposed regulations, and if there are places where folks think there is already, for 

example, an existing data report that addresses something, we’re 

open to consolidating those. So this is a place where we look forward to stakeholder feedback. 

Senator COLLINS. To me it’s obvious in the law what is required, 

so I hope you’ll take a look. 

I want to second the comments made by the Chairman about the 

summative rating from three rating categories for each school. The 

Act requires that States evaluate their schools on academic and 

non-academic factors, but it does not require that each school be 

given a single rating. So, here we go. We seem to be going in the 

proposed regulations away from the new innovative educational approaches in favor of maintaining the status quo and the inflexible 

requirements of No Child Left Behind that were discouraging to 

teachers, to parents, to administrators, and students alike. 

How does a summative rating, which essentially reduces a school 

to a single number or letter grade, support the goal of State flexibility, which was a fundamental premise of the rewrite of this law? 

Secretary KING. The summative rating language in the regulation does not require the use of a letter grade or a numerical index. 

A State could use those, but a State could also use a categorical 

system consistent with the statute. The statute requires that 

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States identify schools for comprehensive support, that States identify schools for targeted support, and then there will be schools 

that are in neither of those categories. The statute envisions a categorical system, at a minimum. That’s consistent with our 

summative rating approach. 

Also, to identify the bottom 5 percent of schools that will get that 

comprehensive support, States will need to have a methodology to 

identify those schools that will require relative comparison of 

school performance, exactly what’s intended by the summative rating language. 

We think that the summative rating is exactly consistent with 

the statute. 

Senator COLLINS. I would beg to differ, but my time has expired. 

The CHAIRMAN. Thank you, Senator Collins. 

Senator Casey. 

STATEMENT OF SENATOR CASEY

Senator CASEY. Thank you, Mr. Chairman. 

Mr. Secretary, thanks for being here today and for your testimony. We all want to make sure that we’re making the right investments and making the right decisions with regard to children. 

I’ve often said that if kids learn more now, they’ll earn more later, 

and that’s not just a rhyme, it’s literally the truth. We know that. 

That starts certainly with great teachers at the core of that process 

of learning more so they can earn more later. 

I want to ask you two basic questions about teachers. First on 

the question of professional development, we know that in ESSA 

part of my legislation, the so-called BEST Act, was included to 

make sure that States and districts, school districts, implement evidence-based activities to strengthen the teaching profession and 

keep great teachers in the classroom. 

Could you describe the work that your Department is doing to 

support districts in providing effective professional development? 

And then I have a second question about teachers. 

Secretary KING. Yes. We certainly believe professional development can be key to improving academic outcomes, and also improving teachers’ ability to serve particularly at-risk populations of students, English learners, students with disabilities. We plan to issue 

guidance on title II, and we have some examples of best practice 

around the use of title II dollars to support high-quality professional development. We also are supporting States as they implement their equity plans around equitable access to effective teaching. Many of those equity plans rely heavily on quality professional 

development. 

We also have a number of professional development programs 

that are part of the Education Innovation and Research, or i3 program, and as those evaluations come back, we will have even a 

broader evidence base around effective professional development 

strategies that States and districts will be able to access. 

Senator CASEY. I appreciate that because we can’t seek to have 

great teachers in classrooms if we don’t have great professional development. 

I wanted to ask you as well—it’s an issue that I think Senator 

Bennet raised earlier, and I want to expand upon it a little bit. 

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This question of engagement by stakeholders, which is always the 

intent that we have educators, teachers, and other education professionals, parents and community leaders involved, and I know 

there’s been a fairly robust and significant engagement. But I 

wanted you to give us a sense of how do you measure that, how 

do you demonstrate that there’s been that kind of engagement, because I know that you sent a letter to State leaders highlighting 

the importance of that kind of engagement. I know and I would applaud what Senator Murray and Representative Scott have done in 

raising this issue. But I want to get your sense of where we are 

with engaging all of those critically important stakeholders. 

Secretary KING. Yes. There are some encouraging signs. The 

Council of Chief State School Officers issued a guide to stakeholder 

engagement, pointing out best practices, and they did that in partnership with over 30 organizations, civil rights organizations, educator organizations. I think that was an important step, an important resource for States. 

As I’ve talked with State chiefs, I’ve heard about efforts to do 

statewide tours, to hold public hearings, the effort to reach out to 

tribal leaders and civil rights organizations, parent groups, particularly parents of students who have been historically underserved, 

like students with disabilities and English learners. 

But there is certainly a range, and one of the reasons we issued 

the Dear Colleague letter is because of a concern that in some 

States they’ve been slower to do that stakeholder engagement, and 

in some States they’ve had a challenge around teachers and principals in particular getting the time that they need, the release 

time from their districts to participate in these activities. We wanted to try to encourage States to be very active in getting their districts to make sure educators can participate fully. 

We also in the regulations set out a requirement for frequent, 

consistent engagement of stakeholders. I think the success of the 

law is partly bound up with how effectively States mobilize a diverse cross-section of stakeholders in this work. 

Senator CASEY. I appreciate that. We just want to hear all those 

voices, especially the voices of educators. 

I’ll submit for the record a question on the work on suspensions 

and expulsions, trying to reduce the use of those practices. We’ll 

submit that in writing. Thanks very much. 

Secretary KING. Thank you. 

The CHAIRMAN. Thank you, Senator Casey. 

Senator Murkowski. 

STATEMENT OF SENATOR MURKOWSKI

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Secretary, I wanted to followup from a conversation that we had 

last time you were before the committee, and that relates to the 

cancellation in the State of Alaska of the Alaska Measures of 

Progress, the AMP assessment. As you know, we were compelled 

to cancel that statewide assessment because we had significant 

widespread, totally unexplained and unfixed technical problems 

that prevented students from being able to complete the AMP, a lot 

of frustration there, as I mentioned to you. You received a letter 

last week that outlines the Federal law requires assessments to 

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provide valid, reliable data that informs instruction, and it has to 

be of adequate technical quality and consistent with national recognized testing standards. 

The State Department of Education has requested a waiver from 

the requirement to assess during the 2015–16 school year. The 

question to you this morning is will you approve the State’s waiver? 

Secretary KING. As you know, we’ve been in close communication 

with leadership in Alaska. I think we’re awaiting the submission 

of some materials describing some of what took place as part of 

their waiver application. We will certainly review those when they 

come in. 

Senator MURKOWSKI. How much time do you figure you’re going 

to need to make this determination? Because this is obviously very, 

very important to the State of Alaska. 

Secretary KING. Yes. In the past in these situations it’s been a 

matter of weeks that we’ve needed to review the material submitted by the State, including the State’s plan to make sure that 

they have a system in place to ensure that they’re—— 

Senator MURKOWSKI. You’ve had it for some time now, but you’re 

saying that you’re requiring additional information from the State? 

Secretary KING. We can followup on the details. I know there’s 

information that we are awaiting from the State on the events that 

occurred, and also their plans to ensure that next year they’ll be 

able to implement assessments consistent with the law. 

Senator MURKOWSKI. As we’ve had the conversation, it’s not as 

if they want to avoid assessment. But again, when you have things 

totally beyond your control, when Kansas basically goes dark, if 

you will, and you cannot complete the testing, it really is a situation that calls out for review and for waiver. So we would ask you 

to move on that very quickly. 

You have indicated that you are waiting for some information 

from the State. I am still waiting for some information from your 

offices. When you were before the committee in April, you committed to make sure that my office was looped in as the Department and the State worked through the assessment vendor. I’m 

told that we are still waiting for answers to some 13 different questions that we sent to you. Can you commit to me that you will get 

these questions answered to me by the end of the week? Can you 

look into that for me? 

Secretary KING. I can certainly look into it. I don’t know if some 

of the answers to those questions are tied to the materials that 

we’re awaiting, but certainly I can followup with you on that. 

Senator MURKOWSKI. I would like your diligence on that. I appreciate it. 

I would ask you about a proposal—this is this diversity proposal, 

or diversity priority, excuse me, that you have proposed to add for 

all of the Department’s K–12 and post-secondary competitive 

grants. This priority would require all applicants to seek to increase schools’ racial and socioeconomic diversity, and I understand 

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creasing diversity in our schools is a worthy goal. I also understand 

the concerns about outcomes of students that are enrolled in some 

of our Nation’s very high-poverty schools. 

We’ve got a different situation in Alaska, and I hope that you 

recognize that we have some very, very isolated regions in the 

State. These are regions that are bigger than most other States. 

Poverty is high. The population in most of these is almost entirely 

Alaska Native. There are no roads. Eighty percent of the communities in Alaska are not accessible by road. Oftentimes where you 

do have roads, it’s very dangerous to transit in the winter. 

We know the barriers. We know the barriers very well. Many of 

the schools are barely able to sustain a K–12 school, so school 

choice is not an issue here. Then allocating funds is not going to 

change the facts on the ground. It is still a very small school, very 

isolated, geographically islanded. 

The proposal, as we look at it, could essentially prevent many, 

many rural Alaskan school districts, and even some of the University of Alaska campuses, from qualifying for any competitive grants 

from the Department. Of course, these are just exactly the grants 

that are designed to help the schools serve these students better. 

I would ask if you would look at this proposal and either redraft 

it so that schools in places like Alaska that are so remote and so 

unique are either exempt from this proposal or rescind it altogether. I think it is an issue where, again, we can’t change the 

facts on the ground. We can’t move that village into a place where 

it’s on a road system. What do I do? 

Secretary KING. That’s understood. This priority would be one 

that would not be automatically applied to all grant programs. The 

inclusion of the—— 

Senator MURKOWSKI. But then wouldn’t we be left out of funding 

opportunities? 

Secretary KING. As we develop grant programs, this is one of the 

considerations that we would have, whether it is feasible for all of 

the grant applicants to pursue this particular priority. Many of our 

grants, as you know, have priorities around serving rural schools 

and rural communities. We would certainly take into account 

issues of geographic isolation as we assemble a grant application. 

Senator MURKOWSKI. OK. I’ve raised it to you, and I would ask 

for your due consideration, either that Alaska be exempt as other 

States that are similarly situated or, again, redrafting. But if you 

could look at that, I would appreciate it. 

Thank you, Mr. Chairman. 

Thank you, Mr. Secretary. 

The CHAIRMAN. Thank you, Senator Murkowski. 

Senator Whitehouse. 

STATEMENT OF SENATOR WHITEHOUSE

Senator WHITEHOUSE. Thanks, Chairman. 

Thank you, Secretary King. Two topics from me. 

One, as you know, there was a middle schools element in ESSA. 

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ments. That’s a preview of coming attractions, and I’m not going 

to hold you to anything until we’ve done our homework with the 

middle school groups. 

The second issue has to do with the provision of the bill related 

to innovation schools. As you know, if you are a very, very big, 

fancy foundation with a lot of money and you have an innovation 

idea, you have a very strong capacity to push that idea into and 

through the multiple layers of education bureaucracy. The concern 

that led to the innovation schools element in the bill was that if 

you’re a school and you want to innovate in a certain way and you 

don’t have a foundation or some big group that has adopted you, 

you just want to do what you think is best for the kids, you look 

out at multiple layers of forest. You look out first at the layer of 

forest of the municipal education oversight, then if you can get 

through that, then there’s the second layer of the State education 

oversight apparatus, and how am I going to be able to get through 

that? If you can get through both of those, then there’s the third 

problem of what do you do with the Federal education oversight apparatus. 

My concern was that unless there was a path of some kind that 

was illuminated through those forests, we lost an enormous 

amount of innovation from journeys that were never begun because 

at the very get-go, at the principal level of the school level, they 

took a look at the multiple-layered bureaucratic forest in front of 

them and said, you know what, not worth our effort, I have no idea 

how this could possibly turn out in our favor. 

To me at least, and to the groups that worked with me on this, 

to be able to move innovation out of just big intellectual centers 

and foundations and so forth and actually have it happen in 

schools is a really important thing. I wasn’t in the conference, and 

so I can’t vouch for what happened to this in conference. You and 

I have talked about what I’ve been told about who was the adversary of this provision in conference, but I would very much like to 

hear from you now as you look at the innovation schools piece what 

your intentions are, how seriously you think you take this, and 

whether you think there actually is a role for innovation at the 

school developed level rather than waiting around for big foundations to be the champions. 

Secretary KING. Yes. 

Senator WHITEHOUSE. And they’re great, by the way. I’ve got 

nothing against the big foundations. They’re important champions. 

I just don’t think they’re the only ones. 

Secretary KING. That’s right. First on middle schools, let me say 

I share your commitment on middle schools. I was a middle school 

principal. Now I’m a middle school parent. I think middle schools 

have a crucial role to play in students’ long-term success, so I look 

forward to working together on that. 

On the innovation schools, I think the way that ESSA and the 

regulations work together creates significantly more space for 

school-based innovation, and we’ve been careful to think about that 

as we’ve been drafting the regulations. Certainly eliminating the 

one-size-fits-all school intervention approach of No Child Left Behind I think creates a lot of new space for States and districts to 

innovate in those schools that need to improve their performance. 

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Senator WHITEHOUSE. That obviously only applies to schools that 

have fallen into that pit and now need to try to extricate themselves. For a school that’s performing relatively well but simply 

wants to do something innovative, unless you can tell me something else, you do need a path like the innovation schools pathway 

because at the local school level they have no way of knowing, nor 

do they have the administrative resources to attempt how they’d 

get through that multiple set of bureaucratic obstacles, hurdles and 

approvals all required in front of them. 

Secretary KING. I think the way we’ve approached the regulations creates quite a bit of space in terms of the Federal role. 

There’s no obstacle in the regulations to States creating a similar 

path through some of the existing State constraints. But I’m certainly happy to continue to talk about ways that we can encourage 

that. 

Senator WHITEHOUSE. The principle of this is that there can be 

a process of alignment where the municipality, the Federal Government agrees that it will step out and let innovation happen if the 

State and the municipality have all done the same thing, and if 

certain requirements have been met at the school level from the 

get-go to show that this is a community-supported, stakeholdersupported, teacher-supported, well-developed effort. To say that 

we’re not going to stop the State government from doing it is a little bit different than saying we’ll accept that there should be a 

path that is lit for schools that want to do this so that they can 

know that if they follow this path, they can get to a result rather 

than just, like I said, a lot of these journeys were never begun, and 

who knows what the price was for the children from the journeys 

never begun? 

Secretary KING. I think that’s right, and this is the spirit behind 

our Teach to Lead work, where we’ve worked all over the country 

to bring together teacher leaders to develop innovative projects in 

their schools and districts. Certainly as we think about the guidance we’ll put out around title II, we will highlight the kinds of 

flexibility at the State and local level that have helped those Teach 

to Lead projects to thrive. 

But certainly I’m open to continuing to talk about ways that we 

can further encourage that kind of State and local space for innovation. It’s a shared commitment. 

Senator WHITEHOUSE. Thank you, Chairman. 

The CHAIRMAN. Thank you, Senator Whitehouse. 

Senator Murray, do you have any concluding remarks? 

Senator MURRAY. Thank you, Mr. Chairman. I just want to comment on the summative rating, and you answered the question. I 

know there’s been some discussion about that. 

Under our bill, States are actually required to develop accountability systems that hold schools accountable using multiple measures to judge school performance. States are required to do that because we wanted to make sure that we have better information to 

help States determine which schools are high performing and 

which ones need supporting, and to provide that information to 

parents as well. The bill also requires States to identify their lowest performing 5 percent of schools, high schools with graduation 

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rates at or below 67 percent, and schools with consistently underperforming subgroups. I did want to just clarify that. 

I do appreciate your response to that. I think we want to make 

sure this bill works. We want to make sure parents have information, schools have information, and the resources flow in the direction that we need them to go to. I appreciate your response. 

Secretary KING. Thanks. 

The CHAIRMAN. Thank you, Senator Murray. 

I’d like to put in the record a letter from the Network for Public 

Education. 

‘‘Dear Senator Alexander, when the Every Student Succeeds 

Act was proposed, our organization gave it qualified support. 

We would have preferred the elimination of mandated annual 

testing. We believed that under ESSA, parents, citizens and 

teachers would have a greater voice in the creation of their 

State school accountability system. We are, therefore, deeply 

disappointed in the proposed regulations put forth by Secretary 

King. It is apparent that he is seeking through regulation to 

maintain Federal control of State accountability systems despite the clear intent of the law. We believe that he is attempting to rewrite the law and extend Federal overreach, in some 

cases even beyond what was under No Child Left Behind.’’ 

We’ll include this in the record with specific items. 

[The information referred to was unavailable at time of print.] 

The CHAIRMAN. Mr. Secretary, I thank you for coming and listening. I think that, if I understood you correctly about the timeline 

that Senator Murray mentioned, that I mentioned, that States can 

expect to have more flexibility in terms of a transition year, then 

a year of implementation, and then a year of identifying schools 

that the regulation would appear to offer. If that is the case, I hope 

you’ll make that clear to States soon. I think if you do that, that 

will be seen as a welcome demonstration of flexibility and the fact 

that you’re actually listening to the feedback that you’re getting in 

comments on the regulation. Would you expect that before long you 

would make that clear? You think you just did. 

Secretary KING. I think I have, but I will say that the key question that I hope States will comment on is in the schools that they 

are providing additional support in 2017–18, how they will identify 

those schools. Will that be carrying over the schools from 2016–17? 

Will that be schools that are newly identified using the existing 

system, or schools that are identified using the new indicators, if 

they are available? 

This is a place where we’ve made clear to State chiefs and to others that we are eager for folks’ feedback and look forward to responding to that comment in the final regulation. 

The CHAIRMAN. One other just general thought, and let me use 

Common Core as an example, as Senator Roberts was talking. 

Sometimes when I say we repeal the Common Core mandate, some 

people have said to me, well, there really wasn’t a Common Core 

mandate. And the answer to that is, well, there really was, in effect, because while you didn’t say every State has to adopt Common 

Core, you said, the Secretary said at the time in order to get a 

waiver from the requirements of No Child Left Behind, you’ve got 

to adopt challenging standards that are common to a significant 

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number of States or get your State university system to do it, and, 

in effect, about the only way to meet that requirement was to adopt 

Common Core, and that’s what 30 of the 42 States who got their 

waivers did. 

I would caution you against any attempt in the regulation to do 

as Senator Roberts was saying, a two-step. You were saying very 

clearly, just as the law says, States set their own academic standards. But if the regulation makes it look like that you could reject 

the evidence, and by rejecting the evidence reject the standard, 

then that goes around the barn door. Do you envision that, that 

you would say to Kansas that you may set your standard but we 

don’t like the evidence you used to set it, so therefore we’re going 

to reject the standard? 

Secretary KING. No. What we’re trying to do in the regulation is 

describe the longstanding peer review process around States having high-quality assessments that align with their standards. Certainly if there’s any lack of clarity around States’ prerogative to set 

their standards, we want to emphasize that, and we’re open to adding language that makes that even more clear. 

The CHAIRMAN. I would appreciate that. One place to look might 

be to look at the use of the word ‘‘demonstrate’’ as opposed to the 

word ‘‘assure.’’ That word was carefully chosen. ‘‘Assure’’ means let 

you know we’ve done it. ‘‘Demonstrate’’ means prove it to us that 

you did it. Those are different words. I appreciate your response. 

I think that’s a constructive response. 

I think this has been a good hearing and I appreciate your coming. This is the fourth hearing we’ve had on the implementation of 

this Act, and I’ll conclude it the way I started. 

We want this Act to succeed, we’d like for you to succeed, and 

we’d like for the teachers and the school board members and the 

parents around the country to have the same feeling about this law 

at the end of this year that they did at the end of last year, which 

was one that they were pleased to see that Senator Murray and 

others, as well as the Republicans on the committee came to a consensus, resolved our differences, created a period of stability, and 

restored more responsibility to people closest to the children. If we 

could end the year with that same sort of feeling, why, you’ll have 

done a really good job. So would the President, so will we, and we 

can step back and let the teachers and the school boards and the 

States have this new era of innovation. 

Thank you very much for coming. 

Secretary KING. Thank you. 

The CHAIRMAN. I look forward to continuing the conversation. 

The hearing record will remain open for 10 business days. Members may submit additional information and questions to our witnesses for the record within that time, if they would like. That 

would be you. 

Thank you for being here today. 

The committee will stand adjourned. 

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RESPONSE BY SECRETARY JOHN KING TO QUESTIONS OF SENATOR ALEXANDER, 

SENATOR ENZI, SENATOR COLLINS, SENATOR HATCH, AND SENATOR SANDERS

SENATOR ALEXANDER

Question. Your proposed regulation basically says that once a State identifies a 

school as needing improvement, the school is always going to be identified as in 

need of improvement unless it shows ‘‘significant progress’’ on federally mandated 

math and reading tests or other academic measures like graduation rates. 

The law says: 

‘‘Develop a State accountability system that is based on test scores, graduation rates, another academic indicator for elementary schools, English proficiency, and another indicator of school quality or student success of the State’s 

choosing.’’ 

Test scores and the other academic indicators need have ‘‘substantial’’ weight in 

that system. 

But the law leaves up to the State what ‘‘substantial’’ means. And the Secretary 

is prohibited from prescribing ‘‘the weight of any measure or indicator used to identify or meaningfully differentiate schools.’’ 

Your regulation basically says that once a school is identified for improvement, 

you have to improve on the tests and other academic indicators or you cannot move 

out of identification. 

So federally mandated tests and academic indicators are once again the primary 

means used to determine whether a school is succeeding or not. 

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You also place several new requirements on any non-academic indicator a State 

may choose to include in its accountability system which severely limit what a State 

may include, when the law was clear we wanted States to have flexibility to include 

indicators they wanted to. 

This also reinforces the importance of tests and academic indicators. 

We have seen the results of a heavy focus on tests from the Federal level before, 

and it created an explosion of over-testing as schools and teachers prepared for 

these high-stakes tests. 

Don’t you agree we need to change that? How does your proposed regulation move 

away from such a heavy focus on tests? 

Answer. The proposed regulations, like the statute, would require the use of indicators in the accountability system that go beyond test scores to promote a more 

well-rounded education for students, something we believe is important. As is required by the statute, our proposed regulations would require States to adopt at 

least one indicator of School Quality or Student Success while providing the flexibility to determine how many and which such indicators would be appropriate for 

each State’s own context and needs. Our proposed regulations build on the statutory 

requirements by including critical guardrails that ensure that all of the indicators 

included in a State’s system advance the statutory purpose of the accountability system overall. 

To give States flexibility to develop systems that reflect their priorities, the proposed regulations do not prescribe or suggest specific percentages for any of the indicators, or a range for weights. Instead, the proposed regulations would add clarity 

to what ‘‘substantial’’ and ‘‘much greater’’ mean by focusing on how the indicators 

come together and impact school differentiation and identification. 

The proposed regulations do not require a State to base identification solely on 

test scores and graduation rates—all indicators would be taken into account in differentiating schools, but they must be taken into account in a way that is consistent 

with the statutory requirements for weighting. For example, the proposed regulations would ensure that, together, academic achievement, graduation rate or academic progress, and ELP are given ‘‘much greater weight’’ than indicators of School 

Quality or Student Success by providing that performance on one or more School 

Quality or Student Success indicator alone could not prevent a school from being 

identified for support and improvement unless the school made significant progress 

(determined by the State) on at least one of the ‘‘substantial’’ indicators, too. Further, the proposed regulations do not require a State to establish exit criteria for 

identified schools that are based solely on test scores and graduation rates. Provided 

that the school no longer meets the State defined criteria for identification, under 

the proposed regulations, a State would have discretion to examine a myriad of 

other student outcomes in the school to determine whether improvements are sufficient for a school to exit status, consistent with the statutory purpose of school improvement plans to ‘‘improve student outcomes.’’ 

As you know, the proposal was out for 60 day public comment, which recently 

closed on August 1, 2016. The Department will take all feedback and suggestions 

received under consideration as we finalize the regulation. 

SENATOR ENZI

Question 1. I have heard from many individuals in my home State of Wyoming 

that they believe the U.S. Department of Education is attempting to supersede the 

clear intent of the Every Student Succeeds Act through the regulation process. More 

specifically, it has become apparent to me and many of my constituents that the Department of Education is attempting to assert more control over State Educational 

Agencies than what the bipartisan Every Student Succeeds Act clearly intended. 

What are you doing as Secretary to address these concerns? 

Answer 1. Education is, and should remain, primarily a State and local responsibility. What we do at the Federal level is support States and school districts to improve opportunity for all students, invest in local innovation, research and scale up 

what works, and protect our students’ civil rights, providing guardrails to ensure 

educational opportunity for all children. The Every Student Succeeds Act provides 

greater flexibility for local communities and States to provide equity and excellence 

for all students. However, since the U.S. Department of Education was first established, it has played an essential role in protecting the civil rights of all students, 

especially our low-income students, students of color, students with disabilities, and 

English learners. The Department will continue to work with States and districts 

to implement their authority under the new law so we can all ensure that every 

child in this country, regardless of background or circumstance, has access to an excellent education that prepares her or him for college and career. 

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Question 2. Is the growing trend of offering ‘‘guidance’’ in lieu of promulgating 

rules a deliberate practice of your Department? What force and effect does guidance 

have? Why is guidance being used instead of rules? The most recent guidance on 

bathroom policies and gender equity in Career and Technical Education come with 

associated threats to affect Federal funding streams if not followed. How is this consistent with ESSA and the clear intent of Congress to give States more flexibility 

with Federal funds? 

Answer 2. Consistent with the Administrative Procedure Act, the Department has 

issued guidance documents, across multiple Administrations, in order to assist 

States, school districts, schools, and other stakeholders in understanding the Department’s policies and practices and interpretations of the statutes and regulations 

it administers and enforces. The Department does not issue guidance in lieu of promulgating regulations, but rather, elects to issue additional types of written materials as authorized by Federal law. The guidance documents themselves do not have 

the force and effect of law. 

SENATOR COLLINS

Question. During the reauthorization process, I worked with the junior Senator 

from Vermont and others to develop and improve an innovative assessment pilot 

program to give States and school districts the opportunity to move away from 

standardized tests and toward assessments that can measure learning competency 

and proficiency. This pilot program is one way to address concerns about over testing and could support those States, like Maine, Vermont, and others, that want to 

focus on what students are learning and how well they are applying that knowledge, 

not just how well they can take a test. We hoped these regulations would have come 

out in May, but they did not. 

When will the Department be issuing regulations or guidance on the Innovative 

Assessment Pilot? 

Answer. The Department, as laid out in the Administration’s Testing Action Plan, 

is committed to ensuring that all assessments students take are high-quality, fair, 

and worth the time students spend taking them. Critically, assessments must also 

provide valuable information on student learning and progress to parents, educators, and students themselves. States have made significant strides in recent 

years to improve the quality of their assessment systems, incorporating more complex question types and writing, measuring a broader range of skills and knowledge, 

and using technology to improve how assessments are administered and scored. 

However, we know that there is still more we can do to improve the testing experience—today, in too many schools, redundant and ineffective tests continue to consume valuable instruction time. 

We believe that innovation in the design and delivery of large-scale State assessment systems is one way in which States can build on the work that has already 

been done, and ESSA’s innovative assessment demonstration authority under title 

I, part B supports this idea by giving selected States time to pilot innovative assessments before implementing them statewide. These pilots can also help develop evidence for new high-quality assessment models that can be replicated in other 

States, moving the entire field of assessments forward through innovation. 

On July 11, the Department published an NPRM in the Federal Register that promotes and helps operationalize this new flexibility for statewide assessment systems 

in the law. The public comment period on these proposed regulations closes September 9, after which the Department will address the comments we receive and 

develop the final rules. 

Separately, on August 5 the Department released an invitation for States to apply 

for Enhanced Assessment Grants, which included a competitive priority for States 

who wish to develop, evaluate and implement innovative assessment types and design approaches. 

SENATOR HATCH

Question 1. In ESSA, we spelled out three ways to resolve payment for extra 

transportation costs between child welfare agencies and districts. If there are additional costs, the child welfare agencies can reimburse the district for extra costs, the 

districts can agree to pay the extra costs, or the two can reach an agreement about 

how to split these costs. The proposed regulations appear to put the districts on the 

hook as a default payer if no agreement can be reached, which I believe could undermine a good faith collaborative process between districts and child welfare agencies. Can you explain how this is consistent with statutory language? 

Answer 1. With the enactment of ESSA, title I, part A of the Elementary and Secondary Education Act (ESEA) now includes vital new protections to support children 

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in foster care in achieving educational stability and success in school. The new foster care provisions in title I are intended to minimize disruptions for children in foster care by requiring SEAs and LEAs to collaborate. Specifically, under section 

1112(c)(5) of the ESEA, an LEA that receives title I funds must assure in its local 

plan that it will develop and implement clear written procedures, in collaboration 

with the State or local child welfare agency, governing how transportation to maintain children in foster care in their school of origin when in their best interest will 

be provided, arranged, and funded for the duration of a child’s time in foster care. 

The statute further provides three options, as outlined in the question, that child 

welfare agencies and school districts may agree to in order to pay for any additional 

transportation costs. The statute, however, does not address how to pay for additional transportation costs if the child welfare agency and the school district do not 

agree to any of the statutory options. The Department published an NPRM to implement provisions of ESSA regarding school accountability, data reporting, and consolidated State plans on May 31, 2016, including proposed regulations regarding the 

transportation costs for students in foster care. We will review public comments we 

receive on this issue and will clarify our position in the final rule, taking into consideration the public comments. 

Question 2. To followup on my previous question, the guidance you recently released on foster care youth seems to offer a different option than the regulations 

or the law. Question 28 of the guidance mentions developing a local or State dispute 

process for resolving agreement issues. It seems counterintuitive to have a local dispute procedure in place if the local entities could not originally reach an agreement. 

Can you elaborate more on how you envision this working, and explain why you 

think this is consistent with the proposed regulations? 

Answer 2. On June 23, 2016, the Department of Education and the U.S. Department of Health and Human Services released joint guidance on ensuring educational stability for children in foster care, which addresses the new foster care 

provisions in title I. Non-regulatory guidance creates no new requirements beyond 

what is in the statute. 

Question 28 of the guidance, as highlighted in the question, contains an explanation of the statutory requirements pertaining to the LEA transportation procedures, developed in collaboration with the State or local child welfare agency (e.g., 

that even if the two agencies cannot reach agreement, their procedures must still 

ensure that a child in foster care promptly receives transportation to his or her 

school of origin); it also provides suggestions and recommendations for SEAs, LEAs, 

and child welfare agencies to consider, based on stakeholder feedback and current 

practices in the field. One of these recommendations is that SEAs and LEAs work 

with child welfare agencies to establish State or local dispute resolution procedures, 

in the event that they face difficulty reaching agreement regarding how transportation costs will be funded. For example, if an LEA and child welfare agency cannot 

reach agreement on any of the three options for transportation cost payments in the 

statute, the State or local dispute resolution procedures could include a process that 

the LEA and child welfare agency would follow in order to reach agreement or the 

procedures could specify a default position for how costs will be covered, if no agreement can be reached (such as that the two agencies must split the costs equally). 

We will review the public comments on the issue of transportation costs that we 

received in response to our NPRM published on May 31, 2016, and will clarify the 

requirement in the final rule, based on the public comments. 

Question 3. In the guidance, you mention that title IV–E funds may be used by 

the child welfare agency to pay for transportation costs. It is my understanding that 

there is still some confusion in the field about the best way to draw down these 

funds for this purpose. It would also be helpful to highlight how these funds could 

be used with other Federal funds, provided by districts, to create collaborative costsharing agreements for transportation. Can you or your staff provide more detail on 

best practices for how to do this? 

Answer 3. The Departments of Education and Health and Human Services are 

holding a technical assistance webinar series in July through early September to 

walk through the new foster care guidance and to help SEAs, LEAs, and child welfare agencies successfully implement the ESSA foster care provisions by December 

10, 2016. One of the webinars, currently scheduled for the week of August 29, will 

specifically address the transportation requirements in the statute, the provisions 

in the guidance, and promising practices from the field on developing joint transportation procedures. Additionally, the Department of Health and Human Services recently released a letter to the field on the title I foster care provisions under ESSA. 

The letter states that the Department will release an Information Memorandum on 

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child welfare agencies’ role in ensuring educational stability for children in foster 

care later this summer. Specific questions about the use of funds under title IV– 

E of the Social Security Act for transportation should be addressed to the Department of Health and Human Services for potential inclusion in the Department’s upcoming Information Memorandum. 

SENATOR SANDERS

Question 1. I supported the Every Student Succeeds Act (ESSA) because it continues the civil rights mission of the Elementary and Secondary Education Act 

(ESEA) to ensure all students have access to a high-quality education. I also strongly supported ESSA because it overhauled the flawed, blame and shame approach 

of the No Child Left Behind Act, which reduced schools and students to test scores. 

Under NCLB, Vermont had to label every single one of its schools as ‘‘in need of 

improvement.’’ It is of the utmost importance that implementation of ESSA reflect 

congressional intent and the public desire to break away from the overly prescriptive, one-size-fits-all NCLB, while maintaining strong Federal guardrails. 

I am concerned that some of the draft regulations mark a continuation rather 

than a break from NCLB. I am hoping that you can address the following concerns 

and if necessary make changes to the regulations that comport with congressional 

intent and Vermont’s commitment to equity, quality, and continuous improvement. 

1. As we move away from the broken No Child Left Behind Act it is essential 

that in implementing the Every Student Succeeds Act that we do not repeat the 

same test and punish approach. I was proud to work to both lower the high 

stakes attached to tests and help schools reduce the amount of time dedicated 

to testing and test perpetration. 

A key part of moving away from test based compliance and toward deeper 

learning, is how we assess what students have learned and know. That is why 

I worked with my colleague, Senator Susan Collins, to include the innovative 

assessment pilot in this reauthorization. This pilot will allow States to create 

their own assessments that can be imbedded with instruction and assess deeper 

knowledge. This would be a much needed move away from the isolating test experience and a move away from multiple choice tests. This new frontier can only 

be accomplished if the regulations allow States to actually innovate, while ensuring the tests produced are of high-quality. 

Can you give a status update as to where the innovative assessment pilot is in 

terms of regulations? In addition to this pilot, what is the Department doing to reduce over-testing and lowering the high-stakes nature of testing? 

Answer 1. The Department, as laid out in the President’s Testing Action Plan, is 

committed to ensuring that all assessments students take are high-quality, fair, and 

worth the time students spend taking them. Critically, assessments must also provide valuable information on student learning and progress to parents, educators, 

and students themselves. States have made significant strides in recent years to improve the quality of their assessment systems, incorporating more complex question 

types and writing, measuring a broader range of skills and knowledge, and using 

technology to improve how assessments are administered and scored. However, we 

know that there is still more we can do to improve the testing experience—today, 

in too many schools, redundant and ineffective tests continue to consume valuable 

instruction time. 

We believe that innovation in the design and delivery of large-scale State assessment systems is one way in which States can build on the work that has already 

been done, and ESSA’s innovative assessment demonstration authority under title 

I, part B supports this idea by giving selected States time to pilot innovative assessments before implementing them statewide. These pilots can also help develop evidence for new high-quality assessment models that can be replicated in other 

States, moving the entire field of assessments forward through innovation. 

Under ESSA, statewide assessment systems under title I, part A also allow students taking advanced mathematics courses in eighth grade in States that offer endof-course tests in high school mathematics to avoid unnecessary, redundant testing 

by allowing those students to take the assessment typically administered to high 

school students enrolled in the course; and allow States to permit a district to use 

a single, locally selected, nationally recognized high school assessment across the 

district in place of the statewide high school assessment. 

On July 11, the Department published two notices of proposed rulemaking in the 

Federal Register that promote and help operationalize these new flexibilities for 

statewide assessment systems in the law. The public comment period on these proposed regulations closes September 9, after which the Department will work to address the comments that are received prior to issuing final rules later in the year. 

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Separately, on August 5 the Department released an invitation for States to apply 

for Enhanced Assessment Grants, which included a competitive priority for States 

who wish to develop, evaluate, and implement innovative assessment types and design approaches. 

Question 2. The regulations as proposed would result in Vermont making accountability decisions for the 2017–18 school year, based of old data from schools operating under NCLB in the 2016–17 school year. It is not fair to link a new accountability to an old system that did not work for Vermont’s students, educators, and 

parents. Is the Department of Education (ED) going to properly align new accountability systems with data collected under these new systems, by allowing States to 

make their first accountability decisions from data accumulated during the 2017– 

18 school year, to inform decisions for the 2018–19 school year? 

Answer 2. In order to provide time for an orderly transition to the new ESSA accountability systems and to ensure that there is not a gap in supports for students 

in the lowest-performing schools, the proposed regulations would require that all 

States identify schools for comprehensive and additional targeted support for the 

2017–18 school year (consistent with the effective date for the majority of the provisions in the ESSA), with annual identification of schools with consistently underperforming subgroups for targeted support beginning in the 2018–19 school year. 

We know that States and districts are eager to move to new, multi-measure accountability systems as quickly as possible, but we also want to ensure that there 

is sufficient time to meaningfully engage stakeholders in developing each State’s accountability system and system of supports for low-performing schools. As proposed, 

the regulations would allow States to add new measures or replace measures over 

time as they gather new data. 

As I’ve said many times, we are eager to get feedback from a wide variety of 

stakeholders on the proposed regulations, including on the timeline for implementation, and we will consider that feedback in developing the final regulations. 

Question 3. I want to ensure that as States go through the process of submitting 

their ESSA plans that they have ample time for community input and feedback. The 

deadlines of March 6 or July 5, set by the Department may be unworkable for 

schools—occurring during summer break or into the academic year. From the feedback I have received from educators in Vermont, there seems to be a need to adjust 

the submission dates or shorten the review process to ensure that States receive 

feedback at a time that allows for appropriate community input. What changes is 

the Department willing to make changes to the submission date and or process for 

State plans? 

Answer 3. As with all of the issues contained in the Notice of Proposed Rulemaking (NPRM) that the Department published on May 31, 2016, we look forward 

to considering those public comments related to the submission date and process for 

consolidated State Plans. Specifically on the topic of stakeholder engagement, the 

Department is very concerned that States have sufficient time to meaningfully engage with a wide and diverse group of stakeholders during the development and implementation of their consolidated State Plans. Thus, the feedback that the Department receives will help us set the actual submission dates. In addition, on June 23, 

2016, I issued a Dear Colleague Letter highlighting the importance of stakeholder 

engagement. Given this emphasis on stakeholder engagement, the Department is 

mindful of the need to establish submission dates for the consolidated State Plan 

that support State efforts to conduct meaningful stakeholder engagement. 

Question 4. I support the Department’s attempt to set a floor for the size of grants 

made to schools identified for Comprehensive and Targeted Support and Improvement. Unfortunately, the minimum grant amounts of $500,000 for schools identified 

for Comprehensive Support is too large for many Vermont schools—exceeding the 

total school budget for 14 districts and is completely unworkable for the 26 other 

districts with budget’s less than a million dollars. The Department needs to set multiple options for States in establishing minimum grant sizes for Comprehensive and 

Targeted Improvement Schools, and allow for a process of minimal burden for States 

that must set different minimum grant sizes that meet their unique needs. How will 

the Department amend its minimum grant size regulation for Comprehensive and 

Improvement Schools so that it works for small and rural States like Vermont? 

Answer 4. We are eager to support all States, including those with many small 

or rural schools, in implementing the statutory and final regulatory requirements 

for schools identified for Comprehensive Support and Improvement. In order to ensure that these schools receive adequate funding to implement at least one evidencebased intervention and to support all students, the proposed regulations would clarify that States must prioritize funding available under section 1003(a) of the ESEA 

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1https://www.insidehighered.com/sites/default/serverlfiles/files/FederallAidlServicingl 

Solutionl-lSolicitationlStatementloflObjectives.pdf. 

for these schools and award no less than $500,000 per school per year, unless the 

State determines that a district needs an amount of funding smaller than the minimum award in order to implement its school improvement plan. This would allow 

States to make grants below $500,000 as they deem appropriate to meet local needs 

while still ensuring sufficient resources to implement the selected interventions. We 

look forward to reviewing public comment on this issue and will consider the comments received in promulgating final regulations. 

Question 5. I am happy to see that section 200.3(a) of the proposed regulations 

offers increased transparency on demographic and academic achievement data for 

charter schools. In addition, we should have transparency about the management 

status of these schools. Is the Department open to amending this regulation to give 

the public more information noting if a charter school has a management organization, and if it does, whether that management organization is a non-profit or forprofit entity? 

Answer 5. We look forward to reviewing public comment on the proposed regulations and will consider those comments as we work toward promulgating the final 

rule. ED recently began collecting information on charter school authorizers, including authorizer type, such as State department of education, State board of education, public charter school board, local educational agency, university, community 

college, not-for-profit organization, and non-educational government entity. Going 

forward, ED will work toward ensuring public access to this information. 

RESPONSE BY SECRETARY JOHN KING TO QUESTIONS OF

SENATOR WARREN

I. STUDENT LOAN SERVICING RE-COMPETE

Question 1. In April, the Department’s student loan bank, the Office of Federal 

Student Aid (FSA), released a solicitation to procure services to develop a new student loan servicing platform to improve customer service and assist borrowers in 

distress. Prospective firms seeking to work with FSA would need to demonstrate experience ‘‘servicing a large number of student loan borrowers successfully and converting a large volume of borrower accounts from another student loan servicing solution onto the offeror’s solution.’’ 1

This performance requirement suggests that only firms currently in the business—including those who have provided poor service to the Department—would 

qualify to compete. 

a. Does the bank believe there were non-incumbent companies (companies that do 

not currently have contracts with the Department) that could have reasonably submitted a competitive bid during Phase I of the re-compete? Please provide a list of 

examples. 

b. Three offerors advanced to Phase II. Each of these offerors includes one or more 

incumbent servicers. Does the Department plan to re-open the competition to ensure 

that new players can enter this broken market? 

c. In 2014, the bank released a Request for Information related to student loan 

servicing. Which servicers replied to this request? Please provide their submissions. 

Answer 1. The Department continues efforts to advance a new loan servicing vision that puts the needs of borrowers at the center. In this effort we are focused 

on driving strong outcomes for borrowers by ensuring a consistent set of servicing 

expectations, providing transparency in whether those expectations are being met, 

establishing strong oversight and accountability for vendors, and leveraging opportunities for multiple partners to compete in providing high-quality service to borrowers. That’s why the Department’s leadership has directed Federal Student Aid 

(FSA) to evaluate Phase II solicitation applicants in part on their plan to deploy a 

team of vendors with successful experience in counseling student loan borrowers on 

the best repayment plan or other benefit—such as loan forgiveness or loan discharge—appropriate for their individual circumstances. 

Specifically, we have encouraged vendors to form teams that combine the benefits 

of experience and existing infrastructure with cutting edge approaches to technology 

and customer care. Two of the three successful Phase I proposals included non-incumbent team members, and all offerors have the opportunity to expand their teams 

in Phase II to address the detailed requirements, including the provisions of the 

July 20, 2016, policy memo. We also plan to issue another solicitation [given budget 

constraints it is unlikely we will be able to do this within 12 months of award— 

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we can’t do the second solicitation until we have the solution in place with the original team so we will know the technical requirements; at this point we do not expect 

to have 2017 funding to support this effort—I think this is addressed in question 

2 so I would not address timing here] to supplement the work of the contract to 

ensure participation of additional vendors. 

The Department received 27 responses to the 2014 Request for Information; the 

full lists of respondents, along with the submissions, are provided in the attachments to this response. A great share of the responses were from public policy and 

consumer protection organizations rather than from servicers and have contributed 

to our understanding of the common challenges borrowers face in servicing and that 

are addressed in the Department’s policy direction to FSA. 

Question 2. What is the Office of Federal Student Aid’s (FSA) expected timeline 

for Phase II of the re-compete? What is the timeline for subsequent phases of the 

re-compete, including subsequent re-compete processes to hire additional entities 

and/or sub-contractors? 

Answer 2. The Department expects to issue a Phase II solicitation later this year. 

We expect the timing of subsequent procurements to follow approximately 12 

months after the contract award, subject to availability of funds to support implementation efforts under the initial award. Each phase allows for participation of additional entities and/or sub-contractors in key aspects of improving servicing for borrower. 

Question 3a. For each current TIVAS servicer (FedLoan/PHEAA, Navient, Great 

Lakes, Nelnet), please provide data regarding the proportion of delinquent borrowers (borrowers between 7–90 days delinquent) that have been contacted by the 

servicer regarding Income-Driven Repayment (IDR) programs during the last year. 

Answer 3a. Our servicers attempt to contact all delinquent borrowers at multiple 

touchpoints when a payment is first missed through day 90 of delinquency. These 

outreach attempts involve one or more communication methods, including phone 

calls, e-mail, and traditional mail, and most include information regarding incomedriven repayment. (Under the current servicing contracts, which were structured to 

foster competition based on performance, outreach methods and content vary across 

vendors.) The actual number of borrowers contacted varies, given the validity of address or other contact information. 

Question 3b. For each current TIVAS servicer (FedLoan/PHEAA, Navient, Great 

Lakes, Nelnet), please provide data regarding the proportion of delinquent borrowers that have enrolled IDR programs during the last year. 

Answer 3b. 

Servicer code Servicer name Proportions 

(In percent) 

578 ............................................................................................................................................. Navient ................ 5.9 

579 ............................................................................................................................................. Pheaa .................. 6.3 

580 ............................................................................................................................................. Nelnet .................. 6.3 

581 ............................................................................................................................................. Great Lakes ......... 5.4 

For each current TIVAS servicer (FedLoan/PHEAA, Navient, Great Lakes, 

Nelnet), please provide data regarding the proportion of delinquent borrowers who 

were previously enrolled in an IDR program but have not recertified into such a program during the last year. 

Answer 3c. 

Servicer code Servicer name Proportions 

(In percent) 

700578 ..................................................................................................................... Navient .................................. 2.4 

700579 ..................................................................................................................... Pheaa .................................... 2.3 

700580 ..................................................................................................................... Nelnet .................................... .05 

700581 ..................................................................................................................... Great Lakes ........................... 4.0 

Question 4. With respect to Phase II, I appreciate your 30th directive to FSA 

Chief Operating Officer, Jim Runcie, directing the bank to make past performance 

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2http://sites.ed.gov/ous/files/2016/06/John-King-servicer-past-performance-memo.pdf. 

3http://www2.ed.gov/about/offices/list/oig/auditreports/fus009/a03i0006.pdf. 

‘‘the most important noncost factor in the evaluation.’’ 2 In adhering to this directive, 

how, specifically, will FSA: 

a. consider past investigations, lawsuits, and settlements for violations of State 

or Federal consumer protection laws or laws meant to protect students and members of our armed services, including evidence of wrongdoing compiled by State and 

Federal law enforcement agencies; 

b. consider servicers’ failure to pay existing fines for past sanctions; 

c. evaluate servicers’ previous record of enrolling distressed borrowers into alternative repayment or debt relief plans, including the sampling or data points FSA 

plans to use; and, 

d. evaluate servicers’ previous rates of IDR recertification? 

Answer 4. The Department is currently preparing the Phase II solicitation, which 

will include the criteria to be used in evaluating proposals. In accordance with the 

Secretary’s directive, past performance will be the most important non-cost factor 

and will be considered at two different phases of the selection process. Generally, 

an offeror’s past performance is an indicator of its ability to perform a new contract 

successfully and will first be used by the evaluators to assess the risks associated 

with how the offeror would perform the contract. Consistent with Federal Acquisition Regulations, after the initial evaluation is completed, the Contracting Officer 

must consider the prospective contractor’s performance record, among other factors, 

in order to make an affirmative determination of whether that firm is responsible. 

Only responsible firms may receive an award. 

Both evaluators and the Contracting Officer, in their respective assessments, will 

consider past performance data for an offeror including that which indicates the offeror has violated State or Federal consumer protection laws, engaged in wrongdoing in its loan servicing activities, failed to pay fines for past sanctions, or performed poorly in enrolling distressed borrowers in repayment or debt relief plans or 

in recertifying participants in Income-Driven Repayment (IDR) programs. 

Evaluators have discretion in applying their judgment in the evaluation of an 

offeror’s past performance and their work is subject to important legal constraints. 

Under the law, Federal agencies must also give every offeror the opportunity to 

comment on adverse past performance information being considered which the offeror has not previously had a chance to address. 

The specifics of how evaluators are to consider certain past performance information (e.g., rating schemes they may use, internal guidance they may consult, evaluation forms they may fill out) is confidential source selection information. As such, 

it must be protected from unauthorized disclosure in accordance with the Procurement Integrity Act, 41 U.S.C. 2102, and implementing regulations, to ensure the integrity of the evaluation process and the fair treatment of all participants. 

Question 5. Each of the three offerors that have been advanced to Phase II includes a market participant (Navient, Nelnet, and PHEAA) that has been caught 

up in the ‘‘9.5 percent scandal’’ that plagued the student loan industry. The Department’s Inspector General issued reports on each of these firms and how they overbilled the Department.3

a. How will FSA consider the 9.5 percent scandal in its evaluation of past performance? 

b. Has the Department recovered the $22 million in excess payments billed by 

Navient, as noted by the Inspector General and the Department’s own investigation? 

Answer 5. The Department will consider this type of information in its evaluation 

of past performance and when making a responsibility determination on a prospective contractor. Consistent with Federal Acquisition and Regulations, the agency 

will assess whether the potential vendor has a satisfactory record of integrity and 

business ethics. Please refer to the response to Question 4 above for more information on how past performance information may be used. 

At this time, the Department has not recovered any of the excess payments from 

Navient. On July 27, 2016, FSA received Navient’s appeal of FSA’s Final Audit Determination related to the Office of Inspector General’s report that Navient overbilled the Department for special allowance payments in the amount of $22 million. 

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4http://www.scotusblog.com/wp-content/uploads/2016/02/pele-op-below.pdf. 

Question 6. In response to allegations that it violated the Fair Credit Reporting 

Act, one of the Department’s largest servicers, PHEAA, asserted ‘‘sovereign immunity’’ from this law.4

a. Does the Department believe it is appropriate to retain contractors that believe 

they do not need to follow Federal consumer financial protection laws? 

b. Will the Department require, by contract, that contracted servicers may not assert sovereign immunity on allegations or claims related to its actions on Federal 

student loans? 

Answer 6. In evaluating offers and selecting contractors, the Department focus is 

each offeror’s ability to perform the work as required; that includes ensuring compliance with required Federal laws and regulations. The Department is currently preparing the Phase II solicitation, which will include detailed requirements, driven by 

the policy direction outlined in the Department’s recent memo to FSA It is expected 

that among those requirements will be a requirement to comply with Federal consumer financial protection laws. If an offeror is unable or unwilling to successfully 

carry out the requirements of the contract, that information would be considered by 

Department procurement officials in the evaluation and in selecting the awardee. 

A failure to commit to important work requirements could lead to disqualification 

of an offeror. 

As to PHEAA’s claim of sovereign immunity in past and current litigation, that 

in and of itself would not prejudice it in the evaluation of past performance. The 

Comptroller General has indicated that in evaluating past performance agencies 

may not penalize offerors simply for asserting their legal rights. To the extent there 

is evidence that any offeror’s claims or assertions of rights were frivolous, were asserted in bad faith, or had an adverse impact on contract performance, or if there 

is evidence of abusive use of litigation, then evaluators may weigh this information 

in the assessment of past performance. 

Question 7. In evaluating past performance, how, specifically, will the Department 

analyze a sample of servicers’ loan portfolios to: 

a. compare and assess the proportion of delinquent borrowers; 

b. compare and assess what proportion of delinquent borrowers have been contacted regarding IDR programs; 

c. compare and assess what proportion of delinquent borrowers have enrolled IDR 

programs; and, 

d. compare and assess what proportion of delinquent borrowers who were previously enrolled in an IDR program, but have not recertified into such a program? 

Answer 7. Success in helping borrowers avoid delinquency and default will be an 

element of the past performance evaluation. Details on how these factors will be assessed are still under development, but will likely include the elements outlined in 

your question. 

Question 8. In evaluating past performance, does the Department’s student loan 

bank plan to require companies involved in the bidding for contracts to disclose any 

pending civil investigative demands, subpoenas, lawsuits, or settlements relating to 

their servicing practices prior to awarding a contract? 

Answer 8. FSA is currently preparing the Phase II solicitation, which will include 

instructions to offerors on the information to be provided in their proposals. While 

those instructions are not yet finalized, it is expected that offerors will be requested 

to provide information regarding any pending civil investigative demands, subpoenas, lawsuits, or settlements relating to their servicing practices. 

Question 9. The Department has said that it intends to create mandatory servicing standards. How will you ensure that these standards are privately and publicly enforceable? 

a. Specifically, will the Department create a third party beneficiary right for borrowers in the contracts? 

b. Will the Department insert the enforceable standards in the promissory notes 

that students sign? 

c. If not, how else would the Department ensure enforceability? 

Answer 9. Generally, Federal agencies may enforce the requirements in their contracts by asserting a claim against the contractor for breach-of-contract damages 

and/or other remedies available under the contract. This may include a claim for 

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5https://www2.ed.gov/finaid/loans/repay/best-practices-recommendations.pdf. 

tract. The Contract Disputes Act establishes the procedures and requirements for 

asserting such Government claims and for resolving related disputes. 

Even in the absence of enforcement actions by the Department or by private 

plaintiffs, the Department believes that it can effectively ensure a high rate of compliance with servicing standards through a number of contract administration measures. They include: 

1. Financial incentives built into the compensation structure of the servicing contracts that would adjust compensation based on the quality of customer service 

achieved by the contractor; 

2. Formulae for allocation of accounts to customer service providers that take into 

account the quality of the provider’s customer service during current or past periods 

of performance; 

3. Reports on the quality of the contractor’s customer service submitted to the 

Contractor Performance Appraisal Reporting System (CSPARs). CPAR reports are 

available to, and are frequently consulted by, contracting officers across the Federal 

Government; 

4. Docking or withholding of the contractor’s compensation due to defective performance, including through the application of liquidated damages or administrative 

remedies clauses, subject to applicable procedures and legal requirements; 

5. Customer feedback mechanism established under the contract for the resolution 

of customer complaints; and, 

6. Initiation of suspension or debarment proceedings should there be adequate 

grounds to suspend or debar based on the contractor’s failure to perform. 

The Department is considering these and related measures as it finalizes the 

Phase II Solicitation. After award, as part of its enhanced monitoring and oversight 

activities, the Department is committed to applying every available measure vigorously and invoking its enforcement rights when appropriate, in order to ensure the 

highest quality of customer service for borrowers. 

Question 10. Where, in addition to the contracts, will the standards be available? 

For example, will there be a handbook or manual? If so, how will this differ from 

the standards in the contracts? Will the contracts and standards be public? 

Answer 10. Standards and contracts will be available to the public. Published 

standards will not differ from those included in the contracts. 

Question 11. How does the Department intend to adopt the Treasury Department’s recommendations on best practices in performance-based contracting, and 

build these recommendations into the Department’s incentive model? 5

Answer 11. Consistent with the Treasury Department’s recommendations, we are 

structuring the servicing re-compete to incorporate a compensation structure that 

incentivizes servicers to meet or exceed clearly defined service levels tied to ensuring borrowers receive the information and assistance they need to effectively manage their loans. In addition, we have established a Customer Feedback System that 

creates a standardized complaint process for borrowers who have issues regarding 

their interactions with their servicer. Last, we are expanding our oversight, monitoring, and vendor management processes to better assess compliance with contractual requirements. 

Question 12. Is the Department planning to create new financial incentives for the 

new servicing contracts? If so, which elements of the current metrics is the Department planning to keep and which will the Department change or improve? How 

does the Department plan to compensate specialty servicers? Has the Department 

evaluated the performance or effectiveness of the current specialty servicers and are 

these evaluations public? Please send my office the specialty servicer contracts. 

Answer 12. The Department is considering a broad range of approaches to create 

financial incentives that encourage accountability and high performance. In general, 

we expect that the new contract will include much more detailed and specific requirements and accompanying performance expectations, with incentives and disincentives tied to the vendor’s success in meeting or exceeding those expectations. 

The requested evaluation and contract materials related to TEACH Grant, Public 

Service Loan Forgiveness, and Total and Permanent Disability Discharge processing, are provided in the attachments to this response. 

Question 13a. Which specific offices within the student loan bank and the Department will be involved in the review of prospective bidders? According to public information sources, the Department’s student loan bank’s Deputy Chief Operating OffiHELPN-003 with DISTILLER

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6https://www.linkedin.com/in/matthew-sessa-13b5a44. 

cer, Matthew Sessa, formerly worked at PHEAA. Has the Department’s ethics office 

specifically prohibited Mr. Sessa from participating in any discussion related to student loan servicing? 6

Answer 13a. Staff from a number of offices will participate in the review, including primarily FSA’s Acquisitions, Finance, Technology, and Business Operations offices. 

Currently, Mr. Sessa is precluded from participating in any particular matters involving PHEAA. 

Question 13b. How many other employees at the bank are barred from participating in decisionmaking related to student loan servicing and the re-compete, due 

to their personal financial interests or recent employment history? 

Answer 13b. When particular matters are identified, such as the evaluation of 

proposals, FSA screens every individual proposed to participate in the evaluation for 

conflicts of interest. Individuals found to have a conflict of interest are not selected. 

None of the employees selected to participate in the evaluation of the loan servicing 

proposals was found to have a conflict of interest due to a personal financial interest, recent employment history, or otherwise. 

Question 13c. 

Answer 13c. 

Question 13d. How will the Department ensure that employees at the bank are 

barred from participating in decisionmaking related to student loan servicing and 

the re-compete, due to their personal financial interests or recent employment history? 

Answer 13d. The Department is committed to ensuring the highest standards of 

ethics and integrity. Guidance documents are shared with employees specific to 

seeking employment, including post-employment rules. These documents are distributed by the Department’s Ethics Division. As you will see from the documents, the 

April 15, 2014 document provides guidance on specific laws and regulations that 

govern employment matters. The second document provides employees information 

in a conversational tone to help ensure the technical aspects of the laws and regulations are understood. Both documents make clear that there are certain restrictions 

on Federal employees, particularly those that have been involved in procurement activities. Compliance with ethical standards and other rules applicable to procurement is promoted through training and ongoing outreach efforts to employees at all 

levels. The Department thus ensures that employees are well-versed in the conflict 

of interest requirements as they relate to their job duties and responsibilities. 

Where an evaluation team is organized for procurements above the Simplified Acquisition Threshold (SAT) (currently greater than $150,000) the following steps are 

taken: 

1. At the time the evaluation teams are empaneled, evaluators are advised regarding avoiding conflicts of interest, protecting confidential information and other rules 

of conduct applicable during the competition. Any individual who is concerned about 

potential conflicts of interest (COI) is referred to OGC for vetting. None of the individuals involved in the Phase I evaluation had any COI due to recent employment 

history. The Phase II evaluators will be subject to similar screening and rules of 

conduct. 

2. Each participant is required to complete a Non-Disclosure statement which requires reporting of COI, prohibits release of source selection information outside the 

panel and explains that only the Contracting Officer and the head of the agency 

may release proposal information or source selection information about the procurement. 

3. Information about ongoing procurements is closely held and only individuals 

with an actual need to know are provided information not available to the public. 

4. Vendors are likewise informed about COI and all Department contracts contain 

COI provisions compelling vendors to report COIs including any associated with Department employees. 

II. GENERAL STUDENT LOAN SERVICING

Question 14a. A November 2015 Government Accountability Office (GAO) report 

found ‘‘weaknesses in the processes for selecting calls to be monitored and for documenting results.’’ Specifically, the GAO found that ‘‘FSA monitors far fewer outbound than inbound calls, even though one servicer said it makes 60 times more 

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7http://www.gao.gov/products/GAO-16-196T. 8 Id. 

outbound calls than it receives inbound calls, and outbound calls are often made to 

borrowers who are delinquent and at risk of default.’’ 7

Does the Department and FSA plan to increase the number of full-time employees 

monitoring calls made between servicers and borrowers? If so, how many FTE’s will 

be allocated? 

Answer 14a. Yes. Over the last 9 months, FSA has increased its Call Monitoring 

Capacity by 55 percent. Additionally as a point of clarification, inbound calls generally equate to a conversation with the borrower, where as numerous outbound call 

attempts are required to yield a conversation. 

We will continue to evaluate resource needs and expect to bring on additional 

staff, provided funding is available. 

Question 14b. How do the Department and FSA currently determine which phone 

calls to monitor? 

Answer 14b. Each servicer is required to provide a listing of calls of varying 

lengths from the previous month with fully identifiable information for each call. 

The servicer is required to send information regarding inbound general servicing 

calls, outbound collection calls and all of the specialty line calls (which would include military specific lines). We should note that the vast majority of outbound 

calls are an attempt to make contact with a borrower that may not result in an actual contact with the intended party. FSA selects a random sample to review. 

Question 14c. How has Department and FSA addressed this weakness found by 

the GAO? 

Answer 14c. The Department has taken a number of steps to address GAO’s recommendations. Each month, calls are sent to the servicer for review on a monthly 

report. These reports include calls that have been escalated throughout the month 

of review as well as any other calls that did not meet the passing standard. The 

servicer is provided with feedback and allowed a subsequent response. Following the 

response from the servicer, the final report will be produced to be archived and sent 

to the appropriate internal FSA entities. 

Escalated call reviews are sent to the servicer if there is a specific reason for immediate escalation/resolution. The servicer is expected to respond to the escalation 

as soon as possible, generally within 2 days. The response is then recorded and 

archived for use in trending and analysis for any further occurrences that may need 

to be escalated further or brought to management’s attention. 

In addition, we have enhanced our new Call Monitoring Tool, which now allows 

monitors to more thoroughly analyze reporting to identify areas in need of improvement. 

Question 14d. What is the process for ensuring that servicers implement the necessary changes when deficiencies are found? Has the Department or FSA discovered 

instances of servicers failing to implement changes? If so, what steps did the Department or FSA take as a result, and how will these past deficiencies factor into 

FSA’s evaluation of past performance? 

Answer 14d. When deficiencies are found with call selection (i.e. call quality), 

servicers are notified of the deficiency and are required to address the deficiency 

within 5 business days of receipt of the notification. The servicer is asked to address 

each failure or escalation reported with a written response including what corrective 

action they will take to address the deficiency. FSA is informed when corrective action steps are completed and necessary changes are implemented. FSA then monitors the servicer’s calls providing the servicer with feedback as to whether there 

is improvement in the area of deficiency where changes were made. To date we have 

not found instances of servicers failing to implement changes. 

Question 15. The same GAO report found that FSA has failed to provide servicers 

with clear guidance on how to apply over or under payments. Is there an updated 

timeline on when FSA will provide such guidance to ensure that borrowers receive 

consistent servicing practices as they repay their student loans? 8

Answer 15. We have met with servicers to discuss the need for a comprehensive 

approach to payment allocation that minimizes customer confusion and improves 

the transparency of the process. Having a common approach to payment allocation 

will provide common and consistent customer messaging on allocation. Changes to 

payment allocation logic require system changes and revisions to customer interfaces (e.g. website and IVR), call specialist training, and letters, statements, and disclosures. Given the scope and cost of such a change across the nine current 

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9http://www.gao.gov/products/GAO-16-523. 10 Id. 

servicers, the Department has deferred any redesign pending the servicer re-compete. 

Question 16. A June 2016 GAO report discovered that borrowers may have difficulties with contacting servicers through their call centers due to where they live 

and the hours of operation at call centers. Specifically, Department officials stated 

that they ‘‘have no minimum standard for call center hours and each servicer sets 

its own.’’ 9 What steps has the Department taken to address this concern? 

Answer 16. As directed by the Under Secretary in his recent Policy Memo, borrowers can expect to be able to reach their Servicer during and after normal business hours, including availability after 5 p.m. in all continental U.S. time zones and 

some weekends and as such, call center hours that align with this expectation have 

been included in Phase II of the Loan Servicing Solicitation requirements. 

Question 17. This same 2016 report also found that, 

‘‘no performance metrics relate to compliance with program requirements, 

servicers with more compliance errors experience no reduction in assigned 

loans, even as their borrowers may experience servicing problems.’’ 10

Does the Department plan to incorporate this as a metric moving forward, both 

with the re-compete and single servicing platform? If so, how does the Department 

plan to incorporate and weight this metric? 

Answer 17. As noted in our response to Question 12, the Department is considering a broad range of approaches to create financial incentives that encourage accountability and high performance against program requirements. Final decisions 

will in part be a function of the structure of the winning proposal; as such, we are 

not able to specify which, if any, elements of the current metrics will be included 

in future contracts. In general, we expect that the new contract will include much 

more detailed and specific requirements and accompanying performance expectations, with incentives and disincentives tied to the vendor’s success in meeting or 

exceeding those expectations. 

Question 18. Will the Department or FSA regularly release findings from examinations of its contracted servicers and subcontractors? 

Answer 18. The Department does not plan to release formal Past Performance reporting (PPIRS), consistent with governmentwide practice and applicable regulations. We are considering what level of reporting is appropriate for other servicer 

reviews. 

Question 19. Please provide all Internal Review Reports of contracted servicers 

and debt collectors over the past 5 years. 

Answer 19. The requested reports are enclosed. 

III. STUDENT LOAN PORTFOLIO DATA

Question 20. I understand that the Department produces a number of documents 

on a recurring basis for evaluating the health of the loan portfolio and the performance of student loan servicers. This includes things like the Operations Services Reports. 

Describe each of these document types, their use, and their recurrence, including 

the student loan servicer performance reports that FSA leadership receives to assess 

the performance of their loan portfolios. Please provide copies of these documents 

to my office. Will the Department release these documents to the public? 

Answer 20. FSA relies on one report to evaluate servicer performance, the Operations Services Portfolio Report. The Operations Services Portfolio Report (attached) 

produced monthly, provides an overview of the entire portfolio at a glance, and includes the volume of borrowers in various repayment statuses (non-defaulted, defaulted, current, delinquent, etc.). The report also tracks categories of interest including the breakdown of the portfolio by school type and payment plan type, the 

percentage of borrowers in various stages of delinquency, and it identifies possible 

issues such as duplicate disbursements. Key statistics are illustrated in a variety 

of charts and graphs. 

Copies of the requested material have been submitted to your office. As part of 

its commitment to increasing transparency, Federal Student Aid proactively publishes information relating to the Federal student loan portfolio on the FSA Data 

Center at https://studentaid.ed.gov/sa/about/data-center/student/portfolio. This 

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series of reports is updated quarterly and includes information pertaining to the 

breakdown of the outstanding portfolio by program type, loan type, servicer, loan 

status, repayment plan, and delinquency status. 

Question 21. Will the Department publish quarterly data on the number of borrowers certified into Public Service Loan Forgiveness, or other programs intended 

to benefit borrowers to allow me and other policymakers, as well as the public, to 

understand their effectiveness? 

Answer 21. Although no borrower will be eligible to receive forgiveness under the 

Public Service Loan Forgiveness Program until October 2017, borrowers interested 

in PSLF are encouraged, but not required, to submit an Employment Certification 

Form (ECF) annually or whenever they change jobs to help track their progress toward meeting the PSLF eligibility requirements. On August 19, 2016, Federal Student Aid released information about the Public Service Loan Forgiveness program, 

including the number of borrowers who have submitted Employment Certification 

Forms and the status of those forms. In addition, the Administration is working to 

enhance the program’s effectiveness by simplifying the process of applying for PSLF. 

The United States Digital Service is partnering with FSA to digitize the PSLF application so that eligible borrowers do not struggle with paper processes to have their 

loans forgiven. 

Question 22. I understand that the Department has received requests from researchers to access anonymized NSLDS and other data and that the requests are 

on hold. Can you explain why the requests are on hold and what your timeline is 

to resolve any delays? 

Answer 22. FSA has received requests for datasets that remove data elements 

such as Social Security Number, name, and date of birth. Even without these identifying data elements, other data elements in the requests could constitute personally 

identifiable information, especially in combination with each other and other publicly available data. FSA is committed to safeguarding the privacy of students and 

their families. As such, FSA is currently researching ways of providing truly deidentified data to the public while complying with all relevant laws governing data 

privacy and use. 

In addition, FSA is launching a pilot of its Advanced Insights through Data (AID) 

effort, which seeks to provide federally affiliated researchers with access to FSA 

data that has not been anonymized in a secure environment that protects student 

privacy. For additional details of this effort, please see response to question 23. 

Question 23. Earlier this year the White House announced ED would start a process for granting researchers access to Federal student aid data through the Advancing Insights through Data (AID) Project. What is the status of AID? How many individuals have been granted access, what is the process for granting access, and 

where can individuals learn about how to apply? 

Answer 23. The AID initiative is an effort to provide federally affiliated researchers with secure onsite access to student aid data while protecting student privacy. 

The effort is currently in a pilot phase with a single research effort. The pilot is 

helping inform broader requirements around privacy, security, technology, resources, and other issues needed to ensure a successful and valuable full-scale research program. Beginning in 2017, all eligible researchers will have an opportunity 

to participate by submitting a formal research proposal. We are actively working on 

the pilot phase of the program with the Federal Reserve Board. Partially based on 

what we learn from the pilot program, we expect to publish additional information 

about how individual researchers can participate next year. 

IV. ENTERPRISE COMPLAINT SYSTEM

Question 24. Will the Department or FSA release annual reports on complaints 

submitted to the new complaint system? If so, will these reports identify the number 

of complaints submitted by servicer and nature of the complaint? 

Answer 24. FSA will release annual reports submitted to the FSA Feedback System, as required by the Student Aid Bill of Rights. Although the Student Aid Bill 

of Rights requires FSA to publish its initial report in October 2017, FSA plans to 

publish its initial report in November 2016. FSA does expect these reports to include data on the number of complaints submitted by servicer, as well as the nature 

of such complaints. 

Question 25. Will FSA ensure that every single complete complaint gets immediately sent to the Federal Trade Commission’s Sentinel? 

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Answer 25. FSA is working with the Federal Trade Commission (FTC) to finalize 

the process by which complaints are sent to the FTC’s Consumer Sentinel system. 

Question 26. How will FSA ensure that servicers, debt collectors, schools, and 

other Department contractors are resolving complaints and are accountable to students and borrowers? What is FSA’s quality assurance process? 

Answer 26. FSA staff has access to all correspondence between complainants and 

servicers, debt collectors, and other Department contractors. This provides an unprecedented level of oversight over the complaint resolution activities of such entities. 

System management teams perform quality assurance on all lines of business 

within the feedback system, including review of correspondence, categorization, 

routing, and resolution for adherence to quality standards. Responses or resolutions 

that do not meet quality standards are re-opened for a second resolution, and action 

is taken regarding the responsible party—whether an FSA employee or a contractor—as warranted. 

The newly created Enforcement Unit will regularly monitor complaints against 

IHEs in furtherance of investigations of possible violations of the title IV regulations. 

Question 27. Will the complainant have direct access to all correspondence and 

information associated with his or her complaint through the system? Will the complainant be able to read a servicer, debt collector, or school’s response and associated information? 

Answer 27. During case submission, complainants are asked whether they prefer 

to be contacted via email or via phone. Correspondence with the complainant is 

managed according to the complainant’s preference. 

Servicers and debt collectors may respond directly to complainants regarding complaints; as a result, complainants are able to directly read responses from these organizations to them. Schools do not respond directly to complainants regarding complaints; they respond to employees within FSA’s Program Compliance unit. In this 

case, the Program Compliance team relays the information to the complainant. 

Question 28. Will FSA ensure that all complainants are asked whether they are 

satisfied with the resolution of their complaints, and will complaints from 

unsatisfied borrowers be reviewed by staff? Will complaints be kept open until they 

are resolved and the complainant is satisfied? 

Answer 28. Complainants who log in with their FSA ID are asked whether they 

are satisfied with the resolution of their complaint, and to rate their complaint satisfaction on a 1–5 scale. Any complainant (FSA ID-authenticated or not) who responds to the email detailing their case resolution triggers a flag for an FSA employee to review their case, who is able to re-open or provide additional information 

if warranted. 

Question 29. Will students and borrowers who file complaints know exactly what 

to expect from the Feedback system? Does FSA plan to release a public guide to 

detail the life cycle of complaints and suspicious activity reports, and who is responsible at what stage? 

Answer 29. Students and borrowers who file complaints are provided information 

regarding exactly what to expect from the Feedback System. For example, they are 

told that FSA expects to respond to complaints within 15 days and resolve complaints within 60 days in most cases, a timeframe in alignment with Federal best 

practices. 

Question 30. Will the Department or FSA release annual reports on complaints 

submitted to the new complaint system? What information and will be contained in 

FSA’s October 2016 report about the Feedback system? If so, will these reports identify the number of complaints submitted by service and nature of the complaint? 

Answer 30. FSA is currently designing the October 2016 report. The report will 

include the number of complaints submitted by servicer, as well as the nature of 

such complaints. 

V. OTHER ISSUES

Question 31. What is the Department’s current practice regarding public access 

to servicing contracts? Specifically, does the Department make public the contracts 

and guidance, as well as any modifications to contracts? Please provide a copy of 

the contract or contractual modification with MOHELA to provide borrower defense 

assistance, including a description of the parameters, requirements of this contract, 

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financial incentives, and whether these documents are public. If these documents 

are not public, then please explain why not. Please provide a copy of the guidance. 

Answer 31. Servicing contracts and major modifications are posted publicly at: 

https://www.fbo.gov/spg/ED/FSA/CA/FSA-TitleIV-09/listing.html. https://www.fbo.gov/spg/ED/FSA/CA/NFP-RFP-2010/listing.html. 

Given the large volume of modifications and guidance issued, much of which is 

administrative in nature and all of which would need to be reviewed and redacted 

prior to posting, that information is not typically shared with the public. 

Question 32a. Institutions of higher education are required to meet certain standards of financial responsibility. The Department determined that Corinthian Colleges had a financial composite score of 0.9 for fiscal year 2011, which fell below 

the minimum required financial composite score. However, the Department’s student loan bank did not require any letter of credit to protect against losses to the 

taxpayers. Why did the Department decline to order Corinthian to produce a letter 

of credit? Please provide all documents and memoranda related to this decision. 

Answer 32a. CCI failed its financial composite score in fiscal year 2011, and ED 

required an LOC; however, over the subsequent year, CCI appealed this score, delaying the remittance of an LOC. At the conclusion of this appeal, ED determined 

CCI failed in fiscal year 2011, but registered a passing score in fiscal year 2012, 

which would have released any LOC back to CCI. Specifically, on October 31, 2012, 

the Department notified Corinthian Colleges (CCI) that its fiscal year 2011 audited 

financial statements indicated a failing composite score. That triggered the requirement to remit a Letter of Credit to the Department in the amount of $175 million 

within 75 days of the date of the correspondence (see Department correspondence 

dated October 31, 2012). CCI requested in correspondence dated November 2, 2012, 

and November 12, 2012, that the institution be permitted additional time to make 

a determination on the LOC request. Furthermore, CCI requested a meeting to discuss the basis for the financial determination and referenced letters from two financial experts essentially disputing the manner in which the department treats ‘‘goodwill impairment’’ in its financial composite scores (see CCI correspondence dated 

November 2, 2012 and November 12, 2012). To fairly consider the claims made by 

CCI and ensure the veracity of the Department’s approach, the Department contracted with an accounting firm (Deloitte) to independently evaluate its methodology 

for conducting financial analysis and the treatment of items in the composite score 

ratios such as ‘‘goodwill impairment.’’ 

During the period of contract award and Deloitte’s subsequent analysis and recommendations (see ‘‘Deloitte’’ attachments)—spanning December 2012 through May 

2013—the Department and CCI continued to discuss the request for a LOC request 

dated October 31, 2012. In a letter dated December 11, 2012, the Department noted 

that while it was considering the issues CCI raised in its November 2012 letters, 

the LOC remission date would be extended to essentially 10 days after the Department’s official response to the November 2012 letters from CCI (see Department correspondence dated November 11, 2012. In addition, the Department requested additional information on various matters related to CCI’s financial status which resulted in the institution’s response dated December 24, 2012 (see CCI correspondence and attachments dated December 24, 2012). 

On August 16, 2013, the Department’s Chief Compliance Officer, Robin Minor 

issued correspondence to CCI executives upholding the determination that CCI had 

failing financial composite score of 0.9 for fiscal year 2011 but passing composite 

score of 1.5 for fiscal year 2012 (see Department correspondence dated August 16, 

2013). The August 2013 correspondence rendered any LOC remitted for a failed 

composite score for fiscal year 2011 irrelevant in this case. This is due to the fact 

that any LOC remitted in relation to the failed composite score for fiscal year 2011 

would have had to be relinquished due to the passing score calculated for fiscal year 

2102. 

Question 32b. Who at the Department’s student loan bank made the final decision 

not to order the letter of credit? 

Answer 32b. FSA’s Program Compliance Office, FSA’s Chief Operating Officer, 

and the Department’s Office of the General Counsel were involved in these decisions. 

Question 32c. How much does the Department expect taxpayers in closed school 

discharge and borrower defense claims because the bank failed to order a letter of 

credit from Corinthian? 

Answer 32c. The June 29, 2016, release from Joseph Smith, Special Master for 

Borrower defense (BD), reported that the Department had approved 3,787 BD 

claims by former CCI students, with an aggregate loan amount of $73,110,502. In 

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addition, as of June 24, 2016, closed school loan relief has been granted to 7,386 

CCI students, with an aggregate outstanding principal of $97,613,625. The Department has calculated that its potential exposure to CCI closed school discharge 

claims is approximately $200 million. The total amount of borrower defense relief 

that may be granted to former CCI students depends on the total number of applications from eligible borrowers. As we reported in the last Special Master report, the 

Department has granted more than $73 million in borrower defense relief. We are 

continuing to receive more applications from CCI students, and we are continuing 

our outreach to potentially eligible students. 

Question 33a. With respect to borrower defense, is the Department planning to 

publicly issue guidance regarding how FFEL borrowers can apply for borrower defenses? If so, what is the timeline and how will this guidance be made public? 

Answer 33a. Yes. In the coming months, the Department will provide additional 

guidance on its Web site to clarify that a FFEL borrower can apply for borrower 

defense upon consolidating their FFEL loans into Direct Consolidation Loans. The 

Department will further explain that prior to consolidation; the Department will 

provide FFEL borrowers with the opportunity to obtain a pre-determination with respect to whether they are eligible for relief under the Direct Loan borrower defense 

regulations. 

Question 33b. Do you believe guidance for FFEL loan holders to grant 

forbearances to FFEL borrowers who apply for defense to repayment is necessary 

or can FFEL loan holder currently grant forbearances? 

Answer 33b. While FFEL loan holders have discretion in determining when to 

grant forbearance, the Department is developing guidance to clarify that loan holders can grant forbearance to borrowers who apply for relief based on a borrower defense claim. The Department will provide such guidance in the form of a Dear Colleague Letter. This guidance will clarify that the Department will contact FFEL 

loan holders to request that they grant forbearance to FFEL borrowers with pending 

defense to repayment claims. Moreover, the proposed borrower defense rule published in June would also provide that FFEL loan holders will be required to place 

loans in forbearance when the Department makes such a request. 

Question 33c. Do you plan to issue guidance on this topic? 

Answer 33c. Yes, the Department will issue guidance in the above-referenced 

Dear Colleague Letter in the coming months. 

Question 34. In my February 2016 Questions for the Record, I asked you to 

‘‘please provide the guidance that the Department currently gives student loan 

servicers regarding borrower defense discharges, closed school discharges, and other 

student loan discharges.’’ You said your staff would ‘‘be pleased to further discuss 

our guidance to student loan servicers’’ in a meeting with my staff. Months later, 

my staff has never seen such guidance. Does the Department provide guidance to 

student loan servicers regarding borrower defense discharges? If not, then why not? 

If so, then please provide the guidance. 

Answer 34. On June 1, 2015, the Department notified all servicers of an impending announcement (subsequently issued on June 8, 2015) regarding Borrower defense to Repayment. This announcement explained that under law certain borrowers 

would be eligible for full or partial discharge of their student loans based on different scenarios involving the school they attended. Servicers were informed that 

borrowers could begin this process by providing information directly to the Department, that a call center would be prepared to provide support, and that servicers 

would be asked to apply administrative forbearances to borrower accounts while the 

Department completed the review process. Such forbearances were to be non-interest capping, applied to the borrower’s account within 5 days, and designed to cover 

any existing delinquency, plus a period covering the next 12 months. Information 

regarding the borrower defense program was also posted on the studentaid.ed.gov 

Web site and we prepared servicers to assist borrowers with closed school loan discharges. 

Servicers were also provided with an internal guide entitled ‘‘Borrower defense in 

a Nutshell,’’ which was designed to explain the history of borrower defense, prepare 

servicers for a significant increase in applications from borrowers seeking relief, and 

outline various resources available to borrowers to assist them in the application 

process. Further, the Department provided a Question and Answer document (with 

multiple updates) for servicers to share with their customer service representatives 

to assist them in correctly responding to borrower questions on borrower defense. 

Copies of these documents are provided in the attachments to this response. 

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11http://www.warren.senate.gov/files/documents/SCRAlEDlReportlAugust2015.pdf. 

The Department established a dedicated Web site as the primary location for borrowers to obtain information on debt relief and apply for administrative 

forbearances. This Web site was located at: https://studentaid.ed.gov/sa/about/announcements/corinthian. 

In addition, a borrower defense ‘‘Hotline’’ was set up to help borrowers understand 

and exercise their options. Servicers were advised of the hotline number—(855) 279– 

6207—and the hours of availability (Monday-Friday from 8 a.m. to 8 p.m. Eastern 

time). One of the Department’s Federal servicers was then selected to operate the 

call center and also set up a Web site to receive forbearance requests from borrowers who attended CCI. 

Specific to CCI, as schools were closing the Department provided prompt closure 

notifications to servicers and required them to implement customary closed school 

procedures, which includes proactively reaching out to impacted borrowers to assist 

them in completing closed school discharge requests. To track the volume of closed 

school applications and borrower defense inquiries, the Department required 

servicers to submit a weekly report with information specific to CCI students, which 

enabled the observation of trends, assisted in the development of initiatives, and 

also informed decisions related to CCI and borrower defense. 

More broadly, we have instructed servicers to refer borrowers inquiring about borrower defense to our Web site or instruct them to e-mail the Department. The 

servicers send the Department borrower applications or correspondence indicating 

the student was harmed by actions or failures to act by a school. That is the case 

whether or not the inquirer uses the exact terms ‘‘borrower defense’’ or ‘‘defense to 

repayment.’’ 

In addition, the Department took the lead in notifying CCI students of their potential eligibility for discharge by initiating a borrower defense email campaign. 

More than 325,000 CCI students received these messages, which encouraged them 

to apply for discharge through the studentaid.ed.gov/Corinthian Web page, contact 

FSA’s Hotline, or review information contained on ED’s blog post ‘‘For Corinthian 

Colleges Students: What You Need to Know about Debt Relief.’’ 

Question 35. What is the status of the PCA contracts, and how do these contracts 

interact with the servicing re-compete (if at all)? 

Answer 35. Proposals under the PCA solicitation are still under review; this process is completely separate from the servicing solicitation. 

See the solicitation notice here: https://www.fbo.gov/index?s=opportunity&mode= 

form&id=2fc9caba34a9c5f65fb9eb37550df06a&tab=core&lcview=1. 

Question 36a. Last year, my office published a report detailing its investigation 

of the flawed reviews conducted by the Department’s student loan bank. I am 

pleased that the Department is prohibiting the bank from conducting the review 

and is instead retaining an independent firm.11 What error rate would exceed the 

Department’s tolerance level and lead to termination of the contract? 

Answer 36a. The Department signed a contract on August 19, 2016, with an external vendor to conduct the audit. The review does not establish a specific error 

rate as the Department believes it is not prudent to pre-determine a specific threshold. Rather, the Department believes it is important to be able to determine the specific elements of the violations to determine if action should be taken. 

Question 36b. Will the Department publicly release this error rate prior to conducting the review? 

Answer 36b. The Department expects to release the results of the findings of the 

independent auditor. 

Question 36c. Will the Department’s student loan bank’s executives be prohibited 

by the Secretary to determine any sanctions? 

Answer 36c. Senior management within the Department, including representation 

from the Acquisitions Office, will be involved in determining any appropriate actions. 

[Editor’s Note: Due to the high cost of printing and the large volume of 

supplemental materials submitted, the materials are maintained on cd’s in 

the committee file.] 

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[Whereupon, at 11:49 a.m., the hearing was adjourned.] 

Æ 

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