President Obama signed the Every Student Succeeds Act, Pub.L. 114-95, 129 Stat. 1802, into law on December 10, 2015, replacing the No Child Left Behind Act of 2001.
Under the Every Student Succeeds Act, states must test public school students in mathematics and reading every year in grades 3 through 8, and at least once during high school. It has been widely reported that the Every Student Succeeds Act mandates 95% participation by pupils on these required state tests. But does it really?
The section that purports to establish the 95% participation requirement, § 1111(c)(4)(E)(i) — codified at 20 U.S.C. § 6311(c)(4)(E)(i) — contains a typographical error. Section 1111(c)(4)(E)(i) provides that each state must “[a]nnually measure the achievement of not less than 95 percent of all students, and 95 percent of all students in each subgroup of students . . . on the assessments described under subsection (b)(2)(v)(I).”
So what’s the problem? Well, there are no “assessments described under subsection (b)(2)(v)(I).” That’s because there is no “subsection (b)(2)(v)(I)” at all.
Congress almost certainly meant to say “subsection (b)(2)(B)(v)(I).” After all, § 1111(b)(2)(B)(v)(I)(aa) is the subsection that mandates the annual administration of mathematics and reading assessments in grades 3 through 8. But that’s not what the plain language of the statute provides. And as Chief Justice John Roberts has reminded us, “the best evidence of Congress’s intent is the statutory text.” NFIB v. Sibelius, 567 U.S. ___; 132 S.Ct. 2566, 2583; 183 L.Ed.2d 450 (2012).
So, while the Every Student Succeeds Act requires the states to administer yearly assessments in mathematics and reading, it does not actually require 95% student participation on those tests. Instead, as currently written, it requires 95% student participation on some other, completely different set of nonexistent assessments.
Congress might want to consider hiring a few more proofreaders.
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