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The Every Student Succeeds Act (ESSA): Some Eleventh-Hour Observations

December 1, 2015

Note: I plan to write another post on ESSA on December 01, 2015.


The Every Student Succeeds Act (ESSA) is the version of the Elementary and Secondary Education Act (ESEA) reauthorization that has flown through conference committee and continues on its speedy trek to the House for an expected vote on December 02, 2015.

The document is 1,061 pages long. The public was able to see it for the first time on November 30, 2015.

Zoom, zoom.

I read much of it and skimmed the rest for particular issues of interest. This post includes my notes on my rapid reading of the ESSA document. (Rapid in this case is several hours, but it was a quick read given the document length.)

Here we go.

Pages 7 and 8 declare Duncan’s NCLB waivers “null and void and to have no legal effect on or after August 1, 2016.”

Page 47 notes that for states to be eligible for Title I funds, they must have “challenging academic content standards” that have corresponding, “aligned academic achievement standards” that have at least three levels of achievement. Also, states must demonstrate that their standards are “aligned with entrance requirements for credit-bearing coursework in the system of public higher education in the State and relevant State career and technical education standards.”

ESSA states that nothing in the Act is to be taken as meaning that institutes of higher education are to determine a state’s standards.

States can develop a set of alternative academic content standards for students with the most severe disabilities (page 49).

The US Secretary may not control the state-level standards setting process (page 51):

(i) STANDARDS REVIEW OR APPROVAL.—A State shall not be required to submit any standards developed under this subsection to the Secretary for review or approval.
(ii) FEDERAL CONTROL.—The Secretary shall not have the authority to mandate, direct, control, coerce, or exercise any direction or supervision over any of the challenging State academic standards adopted or implemented by a State.

On page 130, the Secretary is not allowed to promote the Common Core:

VOLUNTARY PARTNERSHIPS.—A State retains the right to enter into a voluntary partnership with another State to develop and implement the challenging State academic standards and assessments required under
this section, except that the Secretary shall not attempt to influence, incentivize, or coerce State—
(1) adoption of the Common Core State Standards developed under the Common Core State Standards Initiative or any other academic standards common to a significant number of States, or assessments tied to such standards; or
(2) participation in such partnerships.

And now, for assessments (page 52):

The state is to administer math, reading/ELA and science assessments to all students in the state, and these assessments are to be the same assessments for all students except for those with the most severe cognitive disabilities (these students are limited to one percent of all students in the state, but the limit can be waived if necessary– see pages 61 and 65).

It’s the same grade 3 thru 8 admin for ELA and math and once in grades 9 thru 12 (page 54).

Assessments “may be partially delivered in the form of portfolios, projects, or extended performance tasks” (page 54).

The assessments are to “be used for purposes for which such assessments are valid and reliable” (page 52)– which logically would rule out measuring teachers using student test scores. I have yet to see a testing company offer empirical research or any other guarantee backing the use of student achievement tests for measuring teacher effectiveness.

The tests are to “be tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information” (page 52).

The tests are supposed to be accompanied by reports that allow parents, teachers, principals, and other school leaders to understand and address the specific academic needs of students and that are provided to parents, teachers, and school leaders, as soon as is practicable after the assessment is given, in an understandable and uniform format, and to the extent practicable, in a language that parents can understand” (page 57).

Results are to be reported by group (e.g., racial, ethnic, socioeconomic, disability, ELL) (page 58).

Regarding the rights of parents, ESSA includes a “rule of construction,” or a statement about how the ESSA assessment requirement is to be taken, or “construed” (page 76):

(K) RULE OF CONSTRUCTION ON PARENT RIGHTS.—Nothing in this paragraph 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.

Then, there is this “testing transparency” requirement connected to Title I on page 144-145:

(A) IN GENERAL.—At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the
parents may request, and the local educational agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy regarding student participation in any assessments mandated by section 1111(b)(2) and by the State or local educational agency, which shall
include a policy, procedure, or parental right to opt the child out of such assessment, where applicable.

The “rule of construction” and testing transparency” sections are sections that I see as leading to future lawsuits. Some will take the rule of construction statement as the federal government saying, “Don’t blame us” for a state or local laws regarding opting out. In order to meet federal requirements for Title I money, some states and localities can logically be expected to not formally provide for parental rights to opt out for fear of losing federal funds. However, the big question is whether the federal government would win in court if community groups challenged the federal government’s attempting to bypass the reality of its influence over state and local opt out laws via this rule of construction disclaimer. Of course the question remains regarding what the federal government would actually do in the face of state and local opt out laws. Will it refuse Title I funding to such states? Will it penalize states for sending Title I funds to districts with parental opt out procedures in place?

If states and localities pass parental opt out provisions and the federal government threatens Title I funding, the states or localities have leverage to sue the federal government by virtue of the fact that ESSA includes the rule of construction. In other words, by including the rule of construction, the federal government is acknowledging the leverage it holds over state and local opt out policy by virtue of the fact that it holds the Title I purse strings.

The requirement that a state “annually measure the achievement of not less than 95 percent of all students… who are enrolled in public schools” (page 88) on the annual assessments is still in place. The federal government is trying to force the testing without taking responsibility for forcing the testing. Now, there is the creative option for parents (or districts) to un-enroll their children during testing and re-enroll once testing is over.

With the continued testing mandate in this ESSA, the federal government should anticipate an opt-out showdown.

Page 80 begins a section on “statewide accountability systems.” There is no direct mention of grading teachers using student test scores, nor is there any direct mention of using letter grades to label schools. The annual tests must be used in state accountability; four-year adjusted cohort graduation rates are to be used, and extended-year adjusted cohort graduation rates may also be used. Improvement for subgroups of students who are behind must also be incorporated (hence, the ersatz gap-closing).

Page 87 refers to states using their accountability systems to identify 1) at least the lowest five percent of all Title I schools and 2) all public high schools with graduation rates below 33 percent, for “comprehensive support and improvement” beginning in 2017-18 and at least once every three school years thereafter.”  The comprehensive support is not automatically as punitive as under No Child Left Behind (NCLB), though a state could make it just like NCLB (firing staff; closing schools; replacing with charter schools). This ESSA “comprehensive support” will never end given that some schools must always be in the lowest five percent on the statewide assessments.

I performed a keyword search for “opt out” and read on page 847 that parents have the right to opt out of having student information provided to military and higher ed recruiters.

Regarding Title II and teacher prep (starting on page 298), there are grants available for alternative certification that read friendly to Teach for America (i.e., alternative certification for high-achieving college grads in other fields). Nonprofits are listed among the organizations that might train teachers. Too, there is encouragement to develop teacher evaluation systems that include student achievement, which means tying teacher effectiveness to student test scores.  There are also hints of merit pay for teachers and principals in high-need areas (page 320) and in general (page 348-350, 358).

Regarding student mental health services under Title IV (21st century Schools) (page 447), no mental health services will be delivered without “prior written, informed consent from the parent of each child who is under 18 years of age.” There are some exceptions, such as situations of immediate emergency and those in which the parent does not respond to written notice (see page 448).

As to ESSA’s promoting charter schools (page 518): Nothing new here. The federal government wants to expand charters and continue to assure them a “high degree of autonomy” (page 539). There is no evidence that the federal government acknowledges the proliferation of charter school scandal and mismanagement. Peppering this section with the word “quality” appears to be the best assurance of quality that the feds are willing to offer.

In closing, it seems that the incredibly fast creation and movement of ESSA bespeaks the numerous behind-the-scenes political arrangements that likely already guarantee ESSA passage. The document continues the trend of NCLB test-heaviness. ESSA is not as punitive as NCLB, but its worn-out test-centrism will accomplish little as it prompts states to seek creative ways to retain Title I money in the face of an increasing public resistance to the very testing on which corporate reform depends.

pencils 2


Schneider is a southern Louisiana native, career teacher, trained researcher, and author of the ed reform whistle blower, A Chronicle of Echoes: Who’s Who In the Implosion of American Public Education.

She also has a second book, Common Core Dilemma: Who Owns Our Schools?, published in June 2015.

both books

Don’t care to buy from Amazon? Purchase my books from Powell’s City of Books instead.



  1. Thank you, Mercedes. I learned yesterday that there was some language including provisions related to “Social Impact Bonds”. The most recent example I had read of these was in this article pushing “Online Preschool” in Utah (yes, and to the tune of ~5 Million dollars) Note the strategic edit of the title which originally read, “Preschool is Good for Poor Kids, But It’s Expensive, So Utah Is Offering it Online.” Let me know what you think, and if you can stomach watching from beginning to end of the one-minute video.

    I’d be very interested in whether or not “Social Impact Bonds” appear in the ESSA legislation (and if so, in what ways they may be poised to be used or abused.

  2. ColoMom permalink

    Mandated Data Collection of student and family via community schools- MOU contract that promises a pipeline of data -mental health assessment, demographics, physical health, other needs of the family, the student…..
    ESSA Pg 616-617-

    5 ‘‘(a) APPLICATION.—An eligible entity that desires a
    6 grant under this subpart for activities described in this
    7 section shall submit an application to the Secretary at
    8 such time and in such manner as the Secretary may re
    quire. The Secretary shall require that each such applica
    tion include the following:
    11 ‘‘(1) A description of the eligible entity.
    12 ‘‘(2) A memorandum of understanding among
    13 all partner entities in the eligible entity that will as14
    sist the eligible entity to coordinate and provide
    15 pipeline services and that describes the roles the
    16 partner entities will assume.
    17 ‘‘(3) A description of the capacity of the eligible
    18 entity to coordinate and provide pipeline services at
    19 2 or more full-service community schools.
    20 ‘‘(4) A comprehensive plan that includes de <====
    scriptions of the following:
    22 ‘‘(A) The student, family, and school com <====
    munity to be served, including demographic in
    1 ‘‘(B) A needs assessment that identifies
    2 the academic, physical, nonacademic, health,
    3 mental health, and other needs of students,
    4 families, and community residents.

  3. The bill explicitly recognizes state opt out laws. However, it also requires 95% participation. But then it leaves states free to consider how to address any ‘failure’ to reach 95%. Thus, it concedes the field and makes clear that the feds cannot enforce the 95% with any withholding of funds. The feds had already conceded as much regarding NY, but if this passes it will be law. C.F. pp 76,

    The questions then would be how to ensure states do not penalize schools or districts for parent actions (as Delaware will do) and how to ensure parents understand there is no federal threat to withhold funds (even tho that was always a hollow threat).

    • Monty, where is the language explicitly stating that the feds will not withhold Title I funding for failure to reach 95 percent?

  4. Beth Apppleton permalink

    It’s too bad LA just made CC standards “their own”(under the direction of many within the Stop Common Core so called leadership) with the COMPROMISE bill. All the “speed bumps” are now in place for LA to exit CC. Leaves one to wonder if this movement was/is a false one and citizens were misled on purpose in order to further the school choice agenda.

  5. Jill Reifschneider permalink

    Thank you so much for the “quick read”. This is the only “detailed” information I have to go on in order to understand where this is taking us, and how I might communicate concerns to my elected representatives and folks I know are interested.

  6. You have done a spectacular job of keeping us updated on the rewrite of ESSA. Many thanks! Sadly, it is not what I hoped it to be.

Trackbacks & Pingbacks

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