By Marion M. Walsh, Esq., Littman Krooks LLP
By now, parents have heard the news. On December 10, 2015, President Obama signed the Every Student Succeeds Act (“ESSA”), which reauthorizes the Elementary and Secondary Education Act and replaces the No Child Left Behind Act of 2001 (“NCLB”). This represents a positive development for all students and gives states more flexibility in how to implement standardized assessments for children and continue to set high standards. In truth, however, ESSA does not dramatically change the federal emphasis on standardized testing.
NCLB revolutionized education. At its best, NCLB highlighted achievement gaps that many school districts tried to mask for years. It fought “the soft bigotry of low expectations,” which remains pervasive for minority students, English Language Learners, economically disadvantaged students and students with disabilities. At its worst, it created an inflexible and regimented system that required annual assessments each year and an unrealistic level of “adequate yearly progress” (AYP). School and districts that could not make AYP had to implement corrective action plans.
The ESSA removes much of the teeth and corrective action behind NCLB, but the law essentially maintains the status quo, while strengthening important federal objectives. It’s important to note that the federal law still requires annual assessments for all students grades three to eight and one time in high school.
We have provided 10 basics that parents should know about ESSA and its changes and how they affect their children, particularly the most vulnerable children with disabilities. ESSA continues the strong alignment of NCLB with the Individuals with Disabilities Education Improvement Act and continues to push for scientifically based services and more assistive technology for students with disabilities. We will provide more in the future as regulatory guidance becomes available.
- ESSA Still Requires Yearly Standardized Assessments and Does Not Directly Address Opt-Outs
To emphasize, for elementary students the ESSA still requires annual standardized testing in reading and math in grades 3-8 (except states may except advanced math students from 8th grade assessments). For high school students, the law requires the administration of math, reading and science assessments, at least once between grades 9-12. The law also requires school districts to administer science assessments not less than one time between grades 3-5, one time between 6-9 and one time between grades 10-12.
With an emphasis that was not codified in NCLB, ESSA requires that states’ measures of student achievement include measures that involve “higher order thinking 
skills and understanding,” and clarifies that they may be partially delivered in the form of “portfolios, projects and extended performance tasks.” ESSA also contains new specific language, not included in NCLB, that State measures of student achievement must provide for appropriate accommodations such as the ability to utilize assistive technology for children with disabilities.
Keep in mind that ESSA does give school districts the autonomy to develop their own measures of standardized assessments, which are different than the state-approved assessments, but they must obtain approval from the state. Districts must notify parents if they utilize assessments that are not state approved.
ESSA aspires to foster parental engagement in the assessment process by requiring school districts to post comprehensive information on assessments. ESSA allows states and school districts to set policies on opting out to the state and local districts. States and School districts must provide policies and procedures on parental right to opt out of student participation in assessments. However, the federal requirement for 95% participation in tests will remain.
- NCLB Does Not Eliminate the Common Core
Parents must also understand that ESSA does not affect whether states utilize the Common Core or administer Common Core-aligned assessments. NCLB never mandated the Common Core; it only required challenging academic achievement standards. States led the effort to adopt the Common Core, based on research from the National Governors Association Center for Best Practices and the Council of Chief State School Officers. However, because of Federal funding incentives in NCLB linked to challenging standards approved by the US Department of Education (USDOE), most states individually and voluntarily adopted the Common Core assessments. ESSA, based on recommendations from the States, continues to have flexibility in academic achievement standards. The law prohibits the USDOE from forcing or encouraging states towards a particular set of standards or assessments.
- ESSA Continues Disaggregation of Data from Subgroups
NCLB revolutionized education by requiring states and school districts to shine a light on the achievement of vulnerable subgroups and to disaggregate performance data for students. In the past, school districts only had to report on students as a whole and could mask achievement gaps between subgroups. States and school districts must still disaggregate assessment data based on: each major racial and ethnic group, economically disadvantaged students, children with disabilities, English proficiency status, gender and migrant status. However, ESSA aspires to an inclusive focus for all students, as Title I of ESSA changes the language of NCLB to “improving basic programs operating by state and local educational agencies,” rather than “improving the academic achievement of the disadvantaged.”
- ESSA Removes Most Corrective Measures for Schools and Districts
NCLB mandated corrective measures for schools that did not make adequate yearly progress for all students or for students in any subgroup. ESSA has removed most of these corrective measures, which included school choice and supplementary educational services. School districts, however, may offer public school choice if schools are in need of support. Yet the law still requires that states monitor progress of students and notify schools if students or subgroups of students are underperforming and provide targeted support to improve student outcomes. The law also no longer allows states and school districts to lump subgroups together to show adequate yearly progress. However, for lack of compliance with provisions, states or school districts could still face a loss of funding and a state takeover.
- ESSA Limits Alternate Assessments for Students with the Most Significant Cognitive Disabilities.
ESSA codified existing guidance from the USDOE on limiting the percentage of students who take alternate assessments based on alternate achievement standards. The total number of students assessment in each subject using alternate assessments must not exceed 1% of the students in the State who are assessed in such subject. Thus, for example, in a school district of 5,000 students, only 50 students should be tracked on alternate assessments. The law requires that states and districts inform parents that their children will be taking alternate assessments and the consequences. ESSA also requires that states must take steps to incorporate universal design for learning in alternate assessments. The law further states that school districts may not prohibit students taking alternate assessments from attempting to complete the requirements for a full high school diploma.
- ESSA Requires States and School Districts to Foster Parent and Family Engagement
NCLB required States and Districts to develop parental involvement plans, but ESSA has changed the language on parental involvement to require plans for parent and family engagement. The shift is subtle but represents recognition that school districts should conduct greater outreach and should not aim just to involve families but engage them in the process of improving their school districts as active participants. ESSA encourages school districts to engage in meaningful consultation with community stakeholders, such as business leaders, employers and philanthropic organizations, to effectively engage parents.
- ESSA Emphasizes Preschool Education
The ESSA will allocate $250 million for preschool development grants for economically disadvantaged children, which will be funded by the Department of Health and Human Services and the USDOE. The law states that providing early education programs is an allowable use of funds and encourages planning for transition from pre-K programs to elementary schools. The law states that states and school districts can use Title II dollars (funds to prepare, train, and recruit high-quality educators) for early educators. Districts can use these funds, for example, to provide programs and activities to increase “the knowledge base of teachers and principals on instruction in the early grades, and strategies to measure whether young children are progressing.”
- ESSA Affirms Protection for Students who Are Homeless
The law amends the McKinney-Vento Homeless Assistance Act. It requires review of any policy where compulsory residency requirements or other requirements may act as a barrier to the identification or enrollment of homeless children and youths in school and thus strengthens protections for students who are homeless.
- ESSA Confirms Privacy Protections
The law requires that each State and District provide an assurance that they understand the importance of following the Family Educational Rights and Privacy Act (“FERPA”). The law references FERPA in key provisions and emphasizes the need to keep testing and other data private. It also encourages professional development to train school district staff on compliance with FERPA.
- Law Prohibits Aiding and Abetting Sexual Abuse
In a tacit recognition of the problem of sexual abuse in schools, ESSA requires that states and school districts have laws and policies prohibiting any school employee from helping a sexual predator find a new job. Specifically, the law prohibits a school employee, agent or contractor from assisting another school employee, agent or contractor find a new job, if there exists probably cause to believe that such school employee or contractor engaged in sexual misconduct in violation of the law, unless such individual has been exonerated or the matter officially closed.
In general, it remains essential for parents and school districts to advocate for change with their states and school districts. ESSA provides for increased flexibility, but real change will occur at the state and local level.
Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.
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By This September, many parents have dropped their children off for the first time at college and are adjusting to a new type of parenting and advocacy. For all parents, particularly parents of students with disabilities, the transition brings great pride, but also a significant amount of concern and worry. By taking careful steps, you can ensure that you remain an effective advocate in your new capacity.
The transition from youth to adulthood brings important legal changes that all parents must know how to navigate when continuing to advocate for your child. When your child turns 18, absent a guardianship, he or she becomes an adult and important rights transfer. Most states, including New York, set the age of majority at 18. This transfer has significant legal consequences. Absent a guardianship, which is generally not appropriate for a student attending college, an adult who is not incapacitated has the right to make educational, medical and most other decisions for himself. So, for example, if your child decides not to seek accommodations for his or her disability, you must respect this right.
This does not mean you have no role in your child’s education, but your child is driving all decisions and you must know what to expect. Once the student is 18 parents are no longer automatically part of the process or are even apprised of progress, unless the student chooses to include them.
As you move forward for the next year, you must keep in mind these important legal changes, particularly if your child has a disability.
Five Tips for Transitioning to the Advocate of a Young Adult
- Assist Your Child in Advocating, but Do Not Act as the Primary Advocate.
Remember, you are no longer your child’s primary advocate. The advocacy role must change to your child. Thus, ensure that your student has all the information he or she needs to access needed accommodations or care. Make sure your student registers with the Office of Disabilities on campus.However, if your student chooses to not disclose a disability or seek accommodations, this represents his or her decision and you can no longer require him or her receive accommodations or services. You should not call professors to ask for extra help for your child you cannot require your child to be hospitalized, even in a crisis, unless he or she is a danger to himself/herself or others. Parents act as supporters but are no longer the primary decision makers for your child.
- Understand Different Legal Obligations of College.
You must understand the different legal rights of individuals after leaving public school, as an important first step. As most are aware, if your child has graduated or aged out of special education services, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act only protect students from discrimination, but do not require affirmative services. If your child received special education services under the Individuals with Disabilities Education Act (IDEA), these services only extend through the school year in which the child turns 21 or graduates – whichever comes sooner (although you do still retain parental rights to advocate for past services with your school district).
Significantly, after high school, colleges are no longer required to provide a FAPE. The post secondary school is only required to provide appropriate academic adjustments as necessary to ensure that it does not discriminate on the basis of disability. The appropriate academic adjustments must be determined based on the student’s disability and individual needs. Academic adjustments may include auxiliary aids and services, as well as modifications to academic requirements as necessary to ensure equal educational opportunity. In addition, the college does not have to make adjustments that would fundamentally alter the nature of a service, program, or activity, or that would result in an undue financial or administrative burden. A college does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.
- Ensure that Your Child Signs FERPA and HIPAA Authorizations.
The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protect privacy and require access to records. These rights of access and privacy transfer to your student at 18 years of age. FERPA rights transfer and a college will not send you records upon your request or speak to you unless your child has signed consent or another exception applies. For example, if you can show the student is financially dependent with a tax return, the college has the obligation to share information with you. Even with the consent, you will not automatically receive grades and records; you must request such records. HIPAA rights transfer, and student consent will be required if the parties are seeking medical records from a physician or therapist.
Ensure that your child has signed FERPA and HIPAA waivers so you may obtain records and speak to school or hospital staff. Make sure that you are familiar with the school’s policy.
- Have Power of Attorney and Health Care Proxy Signed.
A Power of Attorney gives you the right to act on your child’s behalf in case your child becomes incapacitated. This form represents an important tool to have when your child is in college and, in particular, if your child is living away from home. In addition, it is best to have a Health Care Proxy and Advanced Directives signed as soon as possible, so that you can step in and make important medical or legal decisions, if your child becomes incapacitated at college. Any adult must prepare for the unexpected. You can talk to an experienced attorney about having your child sign a Power of Attorney, Health Care Proxy and Advanced Directives.
- Remain an Involved Parent.
The transition to the parent of an adult does not mean that you cannot remain involved in your child’s life. Particularly if you are financially responsible, you have the right as a parent to set expectations and rules for how your child communicates and performs. Parent weekends represent an important way to connect and you can join a parent networking group. While it is unreasonable to expect direct communications with your child’s teachers, once you have the FERPA form signed, you may contact a dean about any concerns and ask for an appropriate amount of support or monitoring.
Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.
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The beginning of college or other post-secondary school represents an exciting and emotional time for any parent, filled with great pride but also great concern. For students with disabilities, the emotions are amplified, as many parents wonder if their children are sufficiently prepared and ready to succeed in college.
With careful attention to this transition, parents can act as partners with their children without usurping and controlling the process. Parents should understand their legal rights and the rights of their children to help the process go smoothly.
Know Your Parental Rights to Receive Information
As a general rule, pursuant to the Family Education Rights and Privacy Act (“FERPA”), the right to access educational records transfers from parents to “eligible students” at age 18. Many parents and even some colleges believe that this means that parents have no right to receive information or educational or records without student consent. Many colleges, as a general practice, will not give parents information or educational records about their children. However, if you claim your child as a dependent on your tax return, as most parents do for college students, FERPA allows your student’s college to release student records and information to you, whether or not your child consents.
So if your student’s college resists providing information, let them know your child if financially dependent and, if necessary, you can provide your tax returns.
Encourage Your Child to Self-Advocate
Parents must help their children advocate for themselves. Ideally, students should have developed this skill in high school as part of transition services on their IEP, but many do not develop this skill by high school graduation.
If your child has not developed the skill of self-advocacy, there is still time. Your student must know his or her strengths and areas of need and understand his or her legal rights. You can ask your student’s advisor to work with your child to help him or her self-advocate and explain the importance.
How much should you advocate for your college student? Every student is different. For students with disabilities initially adjusting to college, some parental advocacy is appropriate to get students settled. But ultimately, your goal should be to ensure your child understands his or her legal rights and can advocate.
Understand Your College Student’s Rights
Although colleges and universities do not have to comply with the Individuals with Disabilities Education Act and develop IEPs or provide a free and appropriate public education, just about every institution must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. This means that they must offer equal opportunity and access to opportunities for students with disabilities, and offer programs and services on the same basis as to non-disabled students. Specifically, Section 504 of the Rehabilitation Act provides, in relevant part that, individuals with disabilities shall not “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Students with disabilities are entitled to reasonable accommodations and services, but your child will have to initiate the request for accommodations or services and provide documentation.
Your student’s college should have a Disabilities Service Office and publish important information on student rights. The Office for Civil Rights has put together guidance written specifically for college students with disabilities and has also published important information on auxiliary aids and services.
Parents of High School Seniors
In a future entry, we will provide guidance for parents of students with disabilities in high school, preparing for college, to ensure your child is receiving appropriate transition services.
For more information visit www.specialneedsnewyork.com.
