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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The New York State Department of Education’s Office of State Review (“SRO”), which hears appeals of special education proceedings after an Impartial Hearing Officer (“IHO”) decision, has been out of compliance with federal mandates to issue timely decisions within 30 days, since April of 2012. This delay has impeded the right of many children with disabilities to a free appropriate public education. Some cases in our office, for example, have been pending with the SRO for two years, and we believe that the SRO must come into compliance with federal mandates immediately or at the very least, within one year.
NYSED Requests Compliance Agreement
On Wednesday, July 16, the United States Department of Education (“USDOE”) conducted a public hearing in Manhattan to hear comments from the public on a proposed Compliance Agreement to be entered into by the New York State Education Department (“NYSED”) and the USDOE. Specifically, NYSED has requested that the Department allow NYSED to enter into a Compliance Agreement to resolve its noncompliance within three years. NYSED has stated that it is not able to correct this noncompliance within one year due to the significant and unanticipated increase in the number of appeals of due process hearing decisions under the IDEA. In testimony on July 16th, NYSED also attributed the delay to the quality of Impartial Hearing Officers (“IHOs”) decisions.
NYSED’s Commissioner John B. King formally requested, in an April 9, 2014 letter, that the USDOE consider allowing NYSED to enter into the Compliance Agreement. Specifically, in the letter, NYSED acknowledged that the SRO was not in compliance with IDEA mandates and identified several reasons why the State is unable to come into compliance within one year, such as the number of NYSED identified current and proposed actions to bring NYSED into compliance with the 30-day timeline requirement within three years, such as hiring more staff members.
USDOE Sought Comment on Two Questions
At the public hearing, the USDOE panel asked the public to comment on two questions:
1. Can NYSED come into compliance within one year with the IDEA Part B requirement to issue within 30 days, unless a party requests and is granted a specific extension, a State-level independent decision in an appeal of a due process hearing officer’s decision (i.e., is compliance with this requirement not feasible until a future date beyond one year)
2. Will NYSED, within a period of no more than three years, be able to come into compliance with this IDEA Part B requirement (30 days for a State-level independent decision), and, if so, what provisions should be included in the Compliance Agreement to ensure that compliance is achieved as quickly as possible?
NYSED Must Come into Compliance within One Year
NYSED must come into compliance with the IDEA requirement to issue a decision within 30 days, within one year. All stakeholders who practice in the areas—school districts, parents, attorneys and IHOs– understand the importance of IDEA timelines. In enacting IDEA, Congress recognized that timeliness is central to the IDEA and a failure to meet its procedural deadlines can be tantamount to a denial of FAPE. The SRO should not be excused for non-compliance. The SRO’s delay causes a lack of predictability, trust and accountability of the process for all stakeholders. But most importantly, the delay causes unconscionable and irreparable harm to vulnerable children who have a limited time to receive a free appropriate public education. Due to the delay, many students lose their chance for appropriate placements. As one parent at the public hearing noted, “Justice delayed is justice denied.”
The SRO, which for 2013, has rendered approximately 238 decisions, has the ability to come into compliance with simple structural and practice changes. These changes could include:
- a schedule that sets clear, mandated expectations for the number of days available to review the record, the number of days to draft a decision and the number of days to issue it;
- a directive that dismissals do not require decisions and;
- a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs, as the fact-finders.
If USDOE Allows Compliance Agreement, Must be Strong and Vigilant Federal Oversight
If the USDOE approves a three year time window to allow the SRO come into compliance, it must exercise relentless oversight over NYSED and monitor practice changes. Among other things, the USDOE should include in its compliance agreement, provisions which:
- Ensure that the NYSED implements structural changes and policies to set clear expectations for the number of days taken to review the record, write a decision and issue a decision;
- Direct the SRO to examine its review practices and issue a directive that dismissals do not require decisions and a directive to adopt, in accordance with New York Civil Practice Laws and Rules standards, a greater deference for review of decisions of IHOs;
- Investigate claims of bias in favor of local educational agencies (“LEA’s”) and ensure that SRO decisions are impartial and sufficiently deferential to IHO fact-finding, as SRO practices and bias toward LEAs could be contributing to a greater number of appeals;
- Address student rights lost by the delay and direct NYSED to allow IHOs increased discretion to revise pendency standards so that if any SRO decision takes more than 30 days, the prior IHO decision may become final;
- Monitor and examine decisions and practice to ensure reasonable progress, with goals and benchmarks;
- Create an advisory panel of New York stakeholders including LEA representatives, parents, attorneys, advocates, eligible students and other stakeholders, to have input and assist with monitoring.
In short, the SRO delays are inexcusable and have impeded the rights of many children to a free appropriate public education. The USDOE must take immediate and appropriate steps to ensure that the SRO comes into compliance with IDEA mandates with all deliberate speed, and, if it considers a compliance agreement, it must ensure that it protects the rights of New York’s most vulnerable children.
There is still time to give input. The USDOE is accepting comments. Written testimony or public comments may be submitted until July 26, 2014 by email to: OSEPnysedhearinginfo@ed.gov by mail (postmark by July 26, 2014) to Jocelyn Logan-Friend, United States Department of Education, Office of Special Education Programs, Potomac Plaza, Room 4132, 550 12th Street, S.W., Washington, D.C. 20202. The USDOE notes that commenters will not receive acknowledgement of receipt of written testimony and your testimony will be part of the public record that may be obtained through the Freedom of Information Act as appropriate.
