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PODCAST: | “Freedom to Learn:” What is the Appropriate Role of the U.S. Department of Education?

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Lindsay Fryer on Returning Education to States, Communities, & Families

On her first day in office, one year ago, U.S. Education Secretary Linda McMahon promised to “send education back to the states and empower all parents to choose an excellent education for their children.” Over the last year, Secretary McMahon and senior officials with the U.S. Department of Education, including Lindsey Burke and Hayley Sanon, have appeared on the Freedom to Learn podcast to discuss their plans to shift power from the federal government to states and remove “red tape and bureaucratic barriers” through RIFs, IAAs, DCLs, waivers, and more. Not familiar with those acronyms?? Check out those episodes!

Lindsay Fryer, a former senior staffer on Capitol Hill, recently joined the podcast to share a Washington insider’s view on the opportunities and limitations of the current push to “return education to the states.” With her pivotal role in the reauthorization that transitioned the Elementary and Secondary Education Act (ESEA) from the No Child Left Behind (NCLB) regime to the Every Student Succeeds Act (ESSA) era, Lindsay possesses unique insights into the federal government’s influence over education, a domain traditionally managed by state and local authorities. We discussed what the administration can achieve through guidance, waivers (including Iowa’s approved waiver and Indiana’s waiver application), and other actions, and we explored the roles governors, state education chiefs, and Congress play in empowering states, communities, and families.

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Highlights from our conversation have been edited for length and clarity.

Why do we even need to be having a conversation about “returning education to the states”? Why is there this perception, or perhaps reality, that Washington has been granted so much power when education is primarily a state and local responsibility?

Lindsay Fryer: If you look at the history of federal involvement in education, there’s no doubt that it’s grown over time. Republicans and Democrats share a different view of the federal role in education. But ultimately, I’d say everyone can agree on the fact that the federal role should be to help the most vulnerable students access and get through education on a level playing field.

It’s been increasing over time, but probably NCLB was the first time where you had a significant number of requirements for just a tiny amount of money. Federal funding is 10% or less than the annual operating education budget in the state. The amount of federal rules that states have to comply with is pretty significant, not to mention the oversight that the U.S. Department of Education has exercised over these programs while checking compliance. Senator Lamar Alexander, my former boss, used to say, “it’s become a mother, may I exercise with the Department of Education rather than a check the box.”

When the Trump administration came in this go-around, they were very serious about returning education control to the states. In my opinion, that doesn’t mean there’s no federal role. There is an important role to protect civil rights. There is some money involved, and from a taxpayer perspective, you should make sure that money is spent properly. There are requirements in law that Congress passed that the department needs to make sure are complied with. But that’s not adding tons of new requirements or injecting the department’s opinions as to whether or not a state is doing something well enough. It’s letting the states run with what they want to do for their students. The states have the right to be right and the right to be wrong.

Let’s start with that acknowledgement that there’s an appropriate federal role when it comes to civil rights enforcement. I don’t think anyone who’s seriously engaged in this discussion would disagree with that statement. There are federal laws and federal protections in place. There is an Office for Civil Rights, not just at the U.S. Department of Education, but at other federal agencies.

Lindsay Fryer: I don’t think I’ve heard anyone debate that. The role and enforcement of civil rights can be debated, how the department goes about interpreting and enforcing civil rights law. But certainly, I don’t think anyone disagrees that there’s a federal role there. I personally absolutely think that.

There is a decent amount of fear-mongering about IDEA, a federal law that is designed to protect students with disabilities. But the law hasn’t been reauthorized in over 20 years. Nobody’s touching it. It’s not going away. There seems to be across-the-board support for students with disabilities. I just want to set those areas of agreement aside so that we can focus on other aspects of federal education policy.

Let’s talk about the Elementary and Secondary Education Act (ESEA) and its various iterations. You played a huge role in the transition from NCLB to ESSA. Can you walk us through the major differences?

Lindsay Fryer: At a very high level, No Child Left Behind was the first time that you had requirements in federal law that all students need to be assessed annually in grades three through eight and once in high school in reading and math. There had to be state accountability systems that would look at the achievement of schools using test scores and graduation rates. NCLB had pretty specific cascading sanctions for what happened when schools were deemed as failing by the federal law.

There was a deadline that by 2014 that 100% of students would be proficient in reading and math. Over time, the sanctions became increasingly stringent. The law got very prescriptive as to what happens when you’re deemed as failing. The department added regulations, starting with the Bush department. The Obama department added their own flavor as to what school improvement looked like.

Of course 100% of students were not proficient by 2014. The department then started to waive portions of the law and put their own requirements in place. Basically, because the law was fundamentally broken and Congress wasn’t reauthorizing it, the agency had to step in and fill these gaps.

In 2015, after years and years of debate, Congress had the political pressure to reauthorize the law. I worked for the Senate Health, Education, Labor, and Pensions (HELP) Committee at the time. We kept the fundamentals of the law the same. The biggest thing that we right-sized was giving states more ownership over what indicators to include in their accountability systems to rate schools. Particularly on the school improvement section, leaving that up to the state. The federal government completely hands off on that, and there were a lot of prohibitions against secretarial involvement. The idea was to right-size the federal role from where it had moved in NCLB. And I think we did accomplish that.

The 10th anniversary of ESSA occurred recently. Are state and local education leaders fully aware that we’re in the ESSA era, that NCLB is over?

Lindsay Fryer: Ten years ago, when I was on the Hill, I did think that this new flexibility will unleash this era of innovation in states and districts. Did that happen? Probably a mixed bag. Education is a people business, and leadership matters a lot. If you have a leader who will take responsibility for their state system and say, “This is my vision, let’s go for it,” you will get results. But other leaders, because of this increasing intervention of the Department of Education into state decision-making, have a compliance fear of “Am I allowed to do this?”

Having flexibility was a huge culture shift. Some states took advantage, and other states probably didn’t. There are a lot of interesting new flexibilities that states might not have been aware that they could take advantage of. Now we’re revisiting this conversation with the Trump administration — how flexible is the law? What is it that you don’t realize you can do without coming to the department?

A state leader saying “I’m going to do this, and I’m going to take charge here” and be innovative, and this department will say “you can do that,” is a complete culture shift and change from the interactions over the past several decades.

The administration has been communicating flexibilities under ESSA through guidance — Dear Colleagues. What are some of the other big levers that they have?

Lindsay Fryer: There’s something called waiver authority. The law has specific provisions that can be waived by the secretary if the state has a better idea or approach that they want to put in place to increase student outcomes. This department has proactively invited states to waive specific requirements in the law: “Give us your plan and let’s talk about how this is good for kids.”

Advocacy groups on the ground in their particular states should work with their state officials to take control and just start doing things without asking permission, as long as they’re not directly violating the law. I think we need to get out of this mindset of we always have to ask U.S. ED for permission.

The other thing that I think is a very important federal role is data collection on the status of achievement across the country, and the evaluation of federal programs. Also, sharing best practices and highlighting spots where things are happening really well across the country. Letting other states know the good things that are increasing student achievement.

Let’s discuss the approval of Iowa’s waiver application.

Lindsay Fryer: Iowa’s big vision was to get more flexibility in the federal funding. ESEA is structured with multiple funding streams, each with its own requirements attached. Iowa’s proposal is essentially to take all the money that they get in separate silos and combine it to further the support that they’re giving to things that matter to them as a state. That’s certainly something that’s never been done before.

One thing that cannot be waived is how money actually gets to your state. The formula by which you get your dollars cannot be touched. Iowa said, “We’re not going to touch how much money we or ultimately the districts get, but once the state gets our portion of the money, can we combine it all and use it for specific purposes that are beneficial for our students?”

It’s the first of its kind. We’ve never seen this kind of flexibility exercised.

95% of federal money flows down to the district. The state education agency (SEA) takes their chunk off the top, and then they can use that for statewide initiatives of their choosing.

One argument is, if you combine categorical funding streams that each have specific purposes and requirements — one is for English language learners, one is for migrant students, one is for neglected and delinquent students, etc — if you combine all those requirements together in a pot, are those students going to be left behind? It’s a fair argument. The states that are applying for these waivers have to justify to the department how this is good for students overall and specific groups of students.

We’ve been doing the same thing for 20-plus years. Let’s let states do something different and see if we have a different result.

Another high-profile state that has submitted a waiver application is Indiana. Would you say that the Iowa process is a model for other states? Is it a starting point or is it a ceiling?

Lindsay Fryer: I wouldn’t say a ceiling. I do think in the realm of funding flexibility, it’s definitely a model. Indiana didn’t just pursue funding flexibility. A lot of states run a federal accountability system to meet federal requirements, and then they have a state system that, for example, could rate their schools A through F. A lot of states want to combine those systems or just use their state system. Indiana is one of those. The other big thing, probably the most exciting thing I’ve seen in waivers: Indiana wants to completely reconfigure how they intervene in low-performing schools. A main tenet of the federal laws is to use your accountability system to figure out which schools are not doing well and then intervene to put in place school improvement efforts to help them. The law has been prescriptive over time. It’s more flexible now, but it is pretty clear that only the schools that are identified as failing have to be prioritized for money.

Indiana has a pretty interesting notion: “Why are we just funding failure with these dollars? If we have high performing schools, why don’t we reward them and perhaps open up slots for more kids to go there or take some of the individualized personalized strategies that are working and apply that to more kids in failing schools?”

Indiana’s notion is flipping around how we fund school improvement and allowing more schools to take advantage of it. Ultimately, the dollars will still help those students in failing schools, but focus more on serving the students rather than the system that hasn’t been serving them. I think it’s very innovative and interesting.

Before we wrap up, let’s talk about what can’t be done by an administration and what has to be done by Congress. Congress created the Department of Education, so they would be the ones to dismantle it officially. There are other aspects of “returning education to the states” that would have to be done by Congress: block grants, consolidating some of these ESEA titles, taking down a bit of the federal accountability compliance regime… Anything else that Congress should be considering if they’re interested in doing this?

Lindsay Fryer: A next iteration of ESEA should not just be tinkering on the edges. It should have a justifiable reason to fundamentally redesign the system. Perhaps some of these waivers, which are temporary, will yield new ideas that should be considered by Congress.

There are reporting requirements in statute to show how you’re spending the money and student outcomes — school report cards, which are often extremely hard to understand. This department could redo all the federal reporting. Why don’t you just have a standard template that every state has to fill out and put on their website that has the same information? It has to be easy to find, very understandable, clean, simple format.

So that’s your recommendation for the administration. Hope they’re listening. Recommendations for Congress? Not sure how much is going to be getting done in Congress the next few years, but if they want to be exploring things through hearings, through discussion, through preliminary work on this topic, what should be the priorities there?

Redesigning the concept of how to intervene in low-performing schools. Why fund failure? Should we rethink federal funding and incentivize good behavior? Congress could increase transparency and streamline the reporting requirements.

We have choice exploding across the states — public school choice, private school choice, and now this new tax credit that will shake up the system, potentially a little bit. And we’re moving into an age of personalized learning, individualized instruction. It is a very important thing to watch. We know all kids don’t learn the same way. Figuring out how to better fund student needs directly, rather than systems, over time. That would be something Congress should look at.

What is your advice to governors and state chiefs who might be interested in returning education to the states? Thoughtfully apply for waivers. Any other tips for them?

Lindsay Fryer: Stop asking for permission. Figure out what you want to do, what your vision is, and how to actualize it and go with it. You know best how to serve your constituents and the students and families in your state. Apply for waivers, but also do a little homework, work with someone like me, someone like you, or even the department to just figure out how to take advantage of the flexibilities that you already have.

In three years, what do you think could be the evidence that we have made progress on returning education to the states?

Lindsay Fryer: I don’t expect a reauthorized K-12 law. I don’t expect the department building to no longer be open. I think there will be a Department of Ed in four years, albeit something that looks different.

A better working relationship between the department and states that is not compliance-driven, but focuses ultimately on how we are using the funds to better serve students and looking at student outcomes. More transparency around that and getting out of this compliance mode. Allowing innovation to thrive. Just right-sizing that federal role. It’s not a zero role, but states should lead here, and it feels like the U.S. Department of Education has been leading for so long.

Let states back in that driver’s seat and see what they can do when they’re given some flexibility.

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