GOVERNOR RICK SNYDER CONTINUES TO STALL ON LEAD SAFETY RULES FOR MUNICIPAL DRINKING WATER

Nick Krieger (@nckrieger):

For six months, Governor Rick Snyder has been talking about the need for new drinking-water safety regulations, including a lower lead action level.  For six months, he has done nothing.

Six months.  During that time, lawmakers in Governor Snyder's party could have passed legislation.  Alternatively, Snyder's Department of Environmental Quality could have promulgated new rules.  But we've seen no action on the issue.

This week, several Democrats in the Michigan Senate and Michigan House of Representatives decided to do something about it.  They introduced legislation (SB 1118 and HB 5966) that would amend the Safe Drinking Water Act to lower the lead action level for municipal drinking-water systems — just as Governor Snyder originally recommended.  But don't how binary options works expect to see this legislation make it out of committee anytime soon.  After all, as I have written previously, several members of the GOP legislative majority have signaled their opposition to new environmental and drinking-water protections.

Snyder was one of the first people to talk about a tougher statewide lead standard.  But just as I speculated last April, it seems increasingly likely that Snyder's words were empty talk.  Perhaps it's because he knows that the lawmakers in his party won't support him.

EVERY STUDENT SUCCEEDS ACT SPECIFICALLY RECOGNIZES PARENTAL RIGHT TO OPT CHILDREN OUT OF STANDARDIZED TESTING — PROVIDED STATE LAW PERMITS IT

Nick Krieger (@nckrieger):
 
The Every Student Succeeds Act (“ESSA”), signed into law by President Obama on December 10, 2015, has replaced its controversial predecessor, the No Child Left Behind Act of 2001 (“NCLBA”).  Among other things, § 1111(b)(2) of the ESSA requires the states to test public school students in mathematics and reading every year in grades 3 through 8, and at least once in grades 9 through 12.
 
Unlike the NCLBA, the ESSA does not set forth a precise list of federally mandated corrective measures and intervention strategies for low-achieving schools.  Instead, the ESSA returns significant discretion and control over the improvement of low-achieving schools to the individual states.
 
In enacting the ESSA, Congress expressly provided that “nothing in [§ 1111(b)(2)] shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments under this paragraph.”  20 U.S.C. § 6311(b)(2)(K).  In other words, Congress has essentially invited the states to enact laws permitting parents to opt their children out of standardized assessments.
 
The Republican majority in the Michigan Legislature claims to support local control over education and to oppose onerous federal regulations.  Why, then, have our state lawmakers not introduced legislation consistent with 20 U.S.C. § 6311(b)(2)(K) that would allow parents to opt their children out of these federally mandated standardized tests?
 
The reason is simple.  Michigan’s state legislators talk out of both sides of their mouths.  While they claim to support local decision-making and parental choice, they also support more and more high-stakes testing.  After all, these same legislators believe that test scores should be used to assess pupils, evaluate teachers, and determine which schools should be closed.  Without annual standardized testing, GOP lawmakers would lose the measurement tool on which they rely to falsely portray our teachers as incompetent and our public schools as failing.  These yearly test-score data — which can be manipulated to prop up false narratives just like any other statistics that fall into the wrong hands — are critical to perpetuating the GOP’s anti-public-education agenda. 
 
We don’t need to wait for the Legislature to act, however, because Michigan already has state laws that protect “the decision of a parent to not have the parent’s child participate in the academic assessments” within the meaning of 20 U.S.C. § 6311(b)(2)(K).  They’re called the due-process clause of the Michigan Constitution and § 10 of the Revised School Code.
 
The substantive component of Michigan's due-process clause is coextensive with the substantive component of the 14th Amendment due-process clause.  See, e.g., People v Sierb, 456 Mich 519, 523; 581 NW2d 219 (1998); Cummins v Robinson Twp, 283 Mich App 677, 700-701; 770 NW2d 421 (2009).  It has long been recognized in the context of substantive due process that parents have a fundamental liberty interest in directing the education, instruction, and upbringing of their children.  It is this fundamental liberty interest, for example, that guarantees parents the right to homeschool their children, send their children to private schools, and keep their children from participating in certain school activities that they deem objectionable.  Courts have routinely recognized that parents have a fundamental right to make their own choices regarding their children’s education, even against the backdrop of seemingly contrary state or federal laws.
 
The Michigan Legislature has codified this principle in § 10 of the Revised School Code, MCL 380.10, which provides in relevant part that “[i]t is the natural, fundamental right of parents and legal guardians to determine and direct the care, teaching, and education of their children.”
 
In short, it is almost certain that a parent’s right to opt his or her child out of standardized testing is already protected by Michigan’s constitutional due-process guarantee and the statutory right set forth in MCL 380.10 (not to mention the 14th Amendment of the United States Constitution).  And nothing in the ESSA can be construed as preempting this parental liberty interest.

@fixthemitten:

Governor Rick Snyder has signed House Bill 5291, now designated as Public Act 313 of 2016, which fixes a two-year-old typographical error in Section 20(4) of the State School Aid Act that Fix The Mitten first reported last July.  As we previously explained, the drafting error affected the language of the formula used to calculate the state portion of the foundation allowance for Michigan school districts.  The corrective amendment to Section 20(4) is retroactive to the 2014-2015 fiscal year. 

CAN THE THIRD-GRADE RETENTION BILL TAKE IMMEDIATE EFFECT GIVEN THAT HOUSE OF REPRESENTATIVES FAILED TO GIVE I.E. TO FINAL VERSION OF LEGISLATION?

Nick Krieger (@nckrieger):

On Thursday, Governor Rick Snyder signed HB 4822, the third-grade retention bill, which has now been designated as Public Act 306 of 2016 (with immediate effect).  I have already explained many of my concerns with the legislation (including that it is probably unconstitutional), and will not repeat them here.

Instead, I wish to briefly address a different concern — namely, that Public Act 306 has been unconstitutionally ordered to take immediate effect.

As an initial matter, the Michigan House of Representatives passed the final version of HB 4822 (as recommended by the conference committee) by a vote of 60-47.  Article 4, § 27 of the Michigan Constitution provides that the Legislature "may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house."  For reasons I have discussed previously, it defies all logic to believe that two-thirds of the state representatives voted to give immediate effect to the final version of HB 4822 when only 60 of them voted for its final passage.  This, standing alone, provides ample reason to conclude that Public Act 306 cannot constitutionally take immediate effect.

But there is a second reason to doubt whether Public Act 306 can take immediate effect:  The Michigan House of Representatives never held an immediate-effect vote with respect to the final version of the bill.

True, the Michigan House voted to give immediate effect to an earlier version of the bill (Substitute H-5, as amended), which passed by a vote of 57-48 on October 15, 2015.  However, there were several substantive differences between Substitute H-5, as amended, and the final version of HB 4822 that was recommended by the conference committee and ultimately passed by the Michigan House on September 21, 2016.

As noted above, the Michigan Legislature "may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house."  Irrespective of whether two-thirds of the members of the Michigan House actually voted to give immediate effect to the earlier version of the bill on October 15, 2015, it is clear from the Journal of the House of Representatives that the House never voted to give immediate effect to the final version of the bill — i.e., the version that became the public act.  If a chamber votes to give immediate effect to an earlier version of a bill, but that bill is subsequently altered before final passage, mustn't the chamber once again vote on the question of immediate effect?  After all, if the chamber has only voted to give immediate effect to an earlier version of the legislation — which version was never enacted — how can it be said that the chamber has voted to "give immediate effect to [the] act[]" within the meaning of the constitutional provision?

Because the Michigan House did not vote to give immediate effect to the final version of HB 4822 (the version recommended by the conference committee, which ultimately became the public act), but only to an earlier version that was never enacted, Public Act 306 cannot take immediate effect.

Of course, I must point out that many of the provisions of Public Act 306, including those pertaining to the retention of pupils, will not become operative until the 2019-2020 school year.  Therefore, establishing the legislation's legal effective date might not be as critical in this case as it is in others.  But as the Michigan Legislature continues to haphazardly order immediate effect for more and more laws, it will become increasingly important to insist on its compliance with the constitutional language of Article 4, § 27.  

MICHIGAN SUPREME COURT ORDER DENYING SNYDER'S REQUEST FOR ADVISORY OPINION DOES NOT MEAN THAT APPROPRIATION OF PUBLIC AID FOR NONPUBLIC SCHOOLS IS CONSTITUTIONAL OR THAT ISSUE IS LEGALLY INSIGNIFICANT

Nick Krieger (@nckrieger):

The Michigan Supreme Court has denied Governor Rick Snyder's request for an advisory opinion on the constitutionality of § 152b of 2016 PA 249, a provision of the 2016-2017 school aid appropriations act that earmarks $2.5 million in state funds for parochial and nonpublic schools.

As I wrote in July, this appropriation of state money for private schools is blatantly unconstitutional.  Article 8, § 2 of the Michigan Constitution provides in relevant part:

This provision was intended to prohibit all public aid to private schools.  The constitutional language is very broad, flatly banning numerous varieties of state assistance for nonpublic schools.  Nor does it include an exception for "non-educational" funding, "non-instructional" aid, or de minimus expenditures as some commentators and interest groups have erroneously argued.  Simply put, the Michigan Constitution prohibits all state aid for nonpublic schools, irrespective of the source or intended purpose.

Some people have suggested that, given the Supreme Court's order, the Court must have believed that the appropriation of public aid for nonpublic schools in § 152b does not raise a substantial constitutional question.  For example, Gary Naeyaert of the Great Lakes Education Project told the Detroit Free Press that "by not issuing an advisory opinion, 'the court is saying this isn't enough of a constitutional issue to earn their attention.'" 

Nothing could be further from the truth.  The Michigan Supreme Court's decision to decline Governor Snyder's request for an advisory opinion does not mean that the appropriation contained in § 152b is constitutional or that the issue is insubstantial.  The Court did not base its decision on the merits of the case.  Instead, it denied Snyder's request on the ground that "we are not persuaded that granting the request would be an appropriate exercise of the Court's discretion." 

As I have previously written, the Michigan Supreme Court actually lacked jurisdiction to grant the request because Snyder waited until after 2016 PA 249 had already taken immediate effect to ask the justices for their opinion.  Under Article 3, § 8 of the Michigan Constitution, the Supreme Court may only issue an advisory opinion on the constitutionality of legislation "after it has been enacted into law but before its effective date."

The Supreme Court's decision to deny Snyder's request was most likely based on its own lack of jurisdiction — not on any underlying finding that the appropriation is legal or that the question is constitutionally insignificant.  It would be wholly impermissible to read anything else into the Court's order at this time.  Further, the order is in no way precedentially binding or indicative of how the Supreme Court might rule on the merits of the question when and if an actual controversy concerning the § 152b appropriation reaches the justices.

So what's next?  Opponents of § 152b can now file suit in a state trial court (most likely the Michigan court of claims) to stop the appropriation.  Of course, it will be necessary to find one or more plaintiffs with standing to sue.

The Michigan Court of Appeals has previously held that, in order to sue for an alleged violation of Article 8, § 2, a plaintiff must be able to show a concrete and particularized injury in fact.  MEA v Superintendent of Public Instruction, 272 Mich App 1, 12; 724 NW2d 478 (2006).  The MEA Court specifically analyzed the issue under the Supreme Court's erstwhile Lee/Cleveland Cliffs standing framework.  Because 2016 PA 249 specifies that the $2.5 million appropriation for nonpublic schools is to be made from the state's general fund rather than the school aid fund, it is not clear that Michigan public school districts or other allied plaintiffs would be able to demonstrate a concrete and particularized injury under Lee/Cleveland Cliffs. 

However, in LSEA v Lansing Board of Ed, 487 Mich 349; 792 NW2d 686 (2010), a four-justice majority of the Michigan Supreme Court revisited the issue of standing, reversing the Lee/Cleveland Cliffs framework and returning to a less-stringent, prudential doctrine of standing that is more consistent with Michigan law and constitutional history.  For instance, the LSEA Court held that "a litigant has standing whenever there is a legal cause of action."  MCL 600.2041(3) creates a legal cause of action for certain taxpayers "to prevent the illegal expenditure of state funds or to test the constitutionality of a statute relating thereto," and the former Court of Appeals holding that MCL 600.2041(3) can only confer standing if the Lee/Cleveland Cliffs framework is first satisfied must now be called into serious question in light of LSEA.  Moreover, 2016 PA 249 is an appropriations act, and it is therefore self-evident that the expenditure of funds is not merely incidental to its implementation.  See Shavers v Attorney General, 402 Mich 554, 587; 267 NW2d 72 (1978).

In sum, although the issue is far from settled, I believe it will be possible to find one or more plaintiffs with standing to challenge the constitutionality of the appropriation set forth in § 152b of 2016 PA 249.  It is now up to the supporters of public education and good government to find those plaintiffs and file suit in an attempt to stop this unconstitutional expenditure of state money.

WHERE'S THAT TOUGH, NEW LEAD & COPPER RULE THAT GOVERNOR RICK SNYDER PROMISED LAST SPRING?

Nick Krieger (@nckrieger):
 
Since last spring, Governor Rick Snyder has insisted that Michigan needs a tough, new lead and copper rule.  But there are several reasons to doubt whether such a rule will ever come to fruition.
 
Realistically, Snyder can push for the implementation of a new statewide lead and copper rule in two ways:  through the legislative process or the administrative rulemaking process.  To date, he has not actively pursued either of these avenues.  Why?  He almost certainly knows that neither route is likely to yield results.
 
Snyder recently admitted that the legislative route would be “very challenging” in an election year with few remaining legislative days.  With the election only a month away, you might think that incumbent state representatives would be eager to show their commitment to ending the Flint Water Crisis and improving statewide water-quality standards.  But you’d be wrong.
 
Michigan’s Republican legislative majority is notoriously hostile toward environmental and public health regulation.  Just consider some of the GOP-sponsored bills that are pending in Lansing.  In June, the Michigan House of Representatives majority approved a bill that would prohibit the very lead and copper standards that Snyder has recommended (HB 5613).  And several state senators have introduced legislation that would give a committee of business and industry representatives the power to veto all proposed environmental and public health rules (SB 827).  How likely is it that Snyder will be able to convince these same legislators to enact a new lead and copper statute?
 
What about the rulemaking route?  Well, pursuant to Michigan law, the Legislature has significant authority to stop administrative rules from taking effect and rescind regulations through the passage of legislation.  Given the aforementioned bills that are already pending, as well as the Michigan Senate’s recent vote that would allow lawmakers to indefinitely delay the implementation of agency regulations (SB 962), I doubt very much that the legislative majority will simply sit back and allow the Department of Environmental Quality to promulgate a new lead and copper rule with stricter statewide requirements.  
 
Governor Snyder can talk about a tough, new lead and copper rule until he’s blue in the face.  But he’s not in charge of the Michigan Legislature.  So don’t expect to see it anytime soon.
 

REGARDLESS OF WHETHER BILL SCHUETTE REACHED THE CORRECT CONCLUSION WITH RESPECT TO SCHOOL CLOSURES, HIS OPINION DOES NOT HAVE THE FORCE OF LAW

Nick Krieger (@nckrieger):

On Wednesday, I wrote that Attorney General Bill Schuette had reached the correct conclusion with respect to his interpretation of § 391(1) of the Revised School Code in Opinion No. 7292.  Lest there be any confusion, however, this does not mean that I believe Schuette's opinion is binding or enforceable.

This morning, I read a Michigan Capitol Confidential article in which Schuette's spokesperson says that the Attorney General's opinion "is binding on state agencies."  Is it really?

True, the Michigan Court of Appeals has frequently remarked that opinions of the Attorney General are "binding on state agencies."  This remark can be directly traced to the Court of Appeals decision in People v Penn, 102 Mich App 731, 733; 302 NW2d 298 (1981), which cited the last paragraph of footnote 2 of the Michigan Supreme Court decision in Traverse City School District v Attorney General, 384 Mich 390, 406 n 2; 185 NW2d 9 (1971).

The problem?  In a subsequent decision, the Michigan Supreme Court explicitly stated that an opinion of the Attorney General "does not have the force of law and certainly does not compel agreement by a governmental agency . . . ."  East Grand Rapids School District v Kent Co Tax Allocation Board, 415 Mich 381, 394; 330 NW2d 7 (1982).

A later Supreme Court decision generally takes precedence over an earlier one.  And a statement of law by the Michigan Supreme Court obviously takes precedence over a conflicting statement of law by the Michigan Court of Appeals.  Accordingly, it is simply not clear that an opinion of the Attorney General "is binding on state agencies."  The issue remains unsettled.

It is clear, however, that opinions of the Attorney General are not binding on the judiciary.  So irrespective of whether Schuette's opinion on the meaning of § 391(1) is correct, we can be sure that no court will ever be required to follow his interpretation.

MICHIGAN ATTORNEY GENERAL BILL SCHUETTE ISSUES OPINION ON SCHOOL CLOSURES UNDER 2016 PA 192

Nick Krieger (@nckrieger):

I'll probably lose a few followers for posting this, but I feel I must correct the record with respect to Attorney General Bill Schuette's recent formal opinion concerning school closures.

On Wednesday, Schuette issued Opinion No. 7292, pertaining to the authority of the State School Reform/Redesign Office ("SRRO") to close schools operated by the Detroit Public Schools Community District ("DPSCD") under § 391(1) of the Revised School Code.  Albeit poorly written, the opinion reaches the correct conclusion — except for the part that says 2016 PA 192 was properly enacted "with immediate effect" (it was not).

I note that Schuette's press release is absolutely ridiculous and full of anti-public-school rhetoric, referring to "failing school[s]" and making an absurd joke about children's ability to spell.  But that does not mean that his written opinion is wrong.

Under well-accepted legal principles, the unambiguous language of a statute must be enforced as written.  These principles are neither Republican nor Democratic.

Do I think the Legislature did the right thing last June when it passed 2016 PA 192?  Absolutely not.  Do I like § 391(1)?  No.  Do I agree with the concept of closing pubic schools?  Again, no.  Nor do I agree with Bill Schuette on 99.8% of issues.

Nevertheless, in this instance, Schuette's opinion reaches the right result (for the most part).  There are plenty of other reasons to be upset with Bill Schuette.  But if you want to be angry at someone in this particular case, be angry with the legislators who enacted 2016 PA 192, the special-interest groups that drafted and promoted the legislation, and the governor who signed it.

While Governor Rick Snyder's reading of § 391(1) would have provided DPSCD three years to improve performance before facing the threat of school closures, and therefore had great appeal, it was simply inconsistent with the statutory text.

As an initial matter, Snyder's incorrect reading of § 391(1) improperly equated the words "operate" and "control."  In the context of the Revised School Code, the term "operate" does not mean the same thing as "control."  Consider this:  A school that belongs to a community district might not be "operated" by that community district.  See MCL 380.11a(3)(a)(ii); MCL 380.382.  At the same time, a school that does not belong to a community district could be "operated" by a community district (I don't know what it ever would be, but it's statutorily possible).  Under the Revised School Code, the concept of ownership/control is entirely separate from the concept of operation.

Next, it is fairly clear that § 391(1) was intended to apply in the present, requiring the closure of schools in "the current school year."  The statute does not say that it applies to schools "operated by the community district for the immediately preceding three years."  Instead, it merely pertains to schools "operated by the community district," i.e., those operated by the community district at the present time.

The Miller Canfield memorandum on which Snyder relied suggested that schools "operated by" DPSCD since the transfer date of July 1, 2016, are somehow new and legally distinct from the same schools that were operated by DPS before the transfer date.  But this is legally inaccurate.  By law, a school that is "operated by a community district" on the transfer date is the same school as that which was operated by the qualifying school district immediately before the transfer date.  MCL 380.12b(2), (7)(a), (7)(i).  I assign no weight to this specious argument.
 
Lastly, under the Snyder/Miller Canfield interpretation, the SRRO would only be able to close schools operated by DPSCD pursuant to § 391(1) during a single, one-year period — the fourth school year after the transfer date, or 2019-2020.  This makes very little sense.

Beginning in the 2017-2018 school year, the SRRO will implement a letter-grading accountability system for all public schools (DPSCD and charter) located within the boundaries of the DPSCD district.  See MCL 380.390(2) (2017-2018 will be "the second full school year that starts after the transfer date").  The statute only requires the application of § 391(1) until the letter-grading accountability system has been in effect for three school years, or until the end of the 2019-2020 school year.  MCL 380.391(1).  Thus, beginning with the 2020-2021 school year, the closure of schools operated by DPSCD will presumably take place under § 391(2) instead of § 391(1).
 
Under the Governor's erroneous interpretation, the SRRO would have to wait for three full years (2016-2017, 2017-2018, and 2018-2019) before being able to close a school operated by DPSCD in accordance with § 391(1).  The SRRO would be able to close a school operated by DPSCD in the 2019-2020 school year under § 391(1).  But beginning with the 2020-2021 school year, the closure of schools operated by DPSCD would be based on the letter-grading system under § 391(2), and § 391(1) would fall into disuse.

Why would the Legislature have gone to the trouble of drafting § 391(1) if it were only intended to apply during the 2019-2020 school year?  The Governor's interpretation was just not consistent with the statutory text or legislative intent.

Make no mistake.  Schuette has been a dreadful Attorney General.  He places partisanship and personal aggrandizement above his duty to fairly enforce the law.  He regularly disregards the state constitution, picking and choosing the provisions that he wishes to enforce while ignoring those that get in his way.  He prosecutes public officials for failing to do their jobs while he fails to do his job at the very same time.  And he wastes countless thousands of state tax dollars on frivolous and vindictive litigation.  Yes, as I stated above, there are many reasons to be upset with Bill Schuette.  But Opinion No. 7292 is not one of them.

JUST A BRIEF NOTE ON THE PROPOSED U.S. DEPARTMENT OF EDUCATION REGULATIONS CONCERNING THE ESSA'S MANDATE OF 95% STUDENT PARTICIPATION ON STATE ASSESSMENTS

Nick Krieger (@nckrieger):

The Every Student Succeeds Act ("ESSA"), Pub.L. 114-95, 129 Stat. 1802, which was signed into law by President Obama on December 10, 2015, requires the states to administer mathematics and reading assessments every year in grades 3 through 8.  The ESSA also requires the states to test students in mathematics and reading at least once in grades 9 through 12.

Section 1111(c)(4)(E)(i) of the ESSA purports to mandate 95% participation by public school students on these state assessments.  As I have written, there is a typographical error in § 1111(c)(4)(E)(i), and the provision actually refers to a nonexistent statutory subsection.  For purposes of this post, however, let's just assume that the 95% participation mandate in § 1111(c)(4)(E)(i) is valid. 

One of the major differences between the ESSA and its predecessor statute, the No Child Left Behind Act of 2001, is that the ESSA eliminates several federally mandated corrective measures and school intervention strategies, and returns significant control over the improvement of low-achieving schools to state and local education agencies.  To this end, § 1111(e)(1)(B)(iii)(XI) of the ESSA expressly provides that the Secretary of Education may not promulgate any regulations prescribing the manner in which the states take into account or enforce compliance with the 95% participation mandate. 

Well, guess what the Secretary of Education has done?  Yep, that's right.  In May, Secretary of Education John B. King, Jr. announced several proposed amendments to 34 C.F.R. § 200.15 that would (1) order the states to comply with the 95% participation mandate in a uniform manner, (2) require each state to implement one of several punitive reform measures for any school that fails to comply with the 95% participation mandate, and (3) direct any school that does not meet the 95% mandate to adopt an "improvement plan."  See 81 Fed. Reg. 34540. 

These proposed regulations plainly violate the intent of Congress as unambiguously expressed in the language of § 1111(e)(1)(B)(iii)(XI).  Will anyone step forward to stop Secretary King from promulgating these illegal rules?  Only time will tell.

DOES THE EVERY STUDENT SUCCEEDS ACT ACTUALLY MANDATE 95% PARTICIPATION ON STATE ASSESSMENTS?  MAYBE NOT.

Nick Krieger (@nckrieger):

Although this post isn't specific to Michigan (and is a bit tongue-in-cheek), I couldn't resist pointing out a typographical error that I recently found in the Every Student Succeeds Act, Pub.L. 114-95, 129 Stat. 1802, which was signed into law by President Obama last December.

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 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 states 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)."

But, surprise, there are no "assessments described under subsection (b)(2)(v)(I)."  That's because there's no "subsection (b)(2)(v)(I)" at all.

Congress probably meant to say "subsection (b)(2)(B)(v)(I)."  After all, § 1111(b)(2)(B)(v)(I) 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 we all know, "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 certainly requires the states to administer yearly assessments in mathematics and reading, it does not actually require 95% student participation on those tests.  Instead, it requires 95% student participation on some other, completely different set of nonexistent tests. 

As both a lawyer and a nerd, I find this all quite amusing.  But seriously, Congress might want to consider hiring a proofreader or two.