Every Student Succeeds Act (ESSA)

The Every Student Succeeds Act of 2015 (ESSA) — enacted as Public Law 114-95 — is the reauthorized version of the Elementary and Secondary Education Act, also known since 2001 as No Child Left Behind.

The new law, ESSA, will be fully implemented during the 2017-2018 school year. For the 2016 school year the NCLB provisions will apply. However, the consultation process for the 2017 school year will take place later this year and all consultation should be based on the new provisions in ESSA.

This new ESSA contains provisions that provide significant improvements regarding equitable services to students and teachers in religious and private schools. Specific references to private school students and personnel in the law are found in these sections of the law:

Section 1117 of ESSA contains the provisions that pertain to the participation of students enrolled in private schools. All of the general provisions are listed in this document and serve as a blueprint for obtaining equitable services for private school students and other educational personnel.

Title VIII of ESSA contains the Uniform Provisions language that pertains to the participation by private school students and other educational personnel. Sections 8501 -8506 provide more explicit language regarding the new provisions.

Guidance Documents
The U. S. Department of Education has developed regulations and guidance documents to facilitate the transition to the new provisions of ESSA.

Summary of Some of the Changes
Some of the most significant changes pertaining to equitable participation of private school students and personnel are in these areas:

Funding:

  • When calculating the proportionate share of federal funding to serve private school students and teachers the local school district (LEA) must base that share on the total allocation the LEA receives prior to reserving any funds for specific public school uses.  This is especially significant regarding Title I and Title II-A funding.
  • The State Education Agency (SEA) that receives the federal funding and disperses it to the LEAs must inform the private school officials of the amount of funding available to serve their students and teachers in each of the programs.
  • The LEA must inform private school officials about how their proportionate share of funding was calculated.
  • Funds or private school services must be obligated in the fiscal year in which the district receives them.

Consultation:  In addition to the prior consultation requirements, these are additional new topics:

  • There is a requirement that the goal of consultation is to reach agreement between the LEA and the private school officials how to provide equitable and effective programs for eligible private school children, the results of which agreement shall be transmitted to the ombudsman.
  • The LEA must obtain written affirmation from the private school official that consultation has taken place and that affirmation document must provide opportunity for the private school official to indicate that adequate consultation has not occurred.
  • Consultation topics now must include discussion of whether or not to pool funds, to use a third party provider, discussion of use of counseling, mentoring and tutoring and approximate time of day services will be provided.
  • If the LEA disagrees with any of the private school requests for Title I, it must provide a written analysis of its reasons.

Ombudsman:

  • A new position of ombudsman has been created in the law. SEAs are to appoint an ombudsman to monitor and enforce the LEA’s compliance with the equitable services provisions pertaining to the participation of private and religious school students and teachers.

The evolution of the changes in the new law may be traced following this document developed by the Office of Non Public Education at the U.S. Department of Education.

The following Titles include provision for the equitable participation of students and teachers in religious and private schools.  Each Title contains a link to the specific details.

Title I - Improving Basic Programs Operated by State and Local Educational Agencies

Title I, Part A: Basic Programs

The purpose of Title I-A is to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.

Eligibility:
  • Eligible private school students are those who reside in a participating public school attendance area and who are failing, or are most at risk of failing, to meet the state’s challenging student academic achievement standards.  (Reminder: this is the only Title that bases eligibility on residence; all other programs are serviced by the LEA in which the private school is located.)
  • School districts must also ensure that teachers and families of the private school students receiving services participate, on an equitable basis, in activities designed to promote parental involvement and family engagement.
 Expenditures:
  • Educational services and other benefits for such private school children shall be equitable in comparison to services and other benefits for public school children participating under this part, and shall be provided in a timely manner.
  • The proportional share of funds shall be determined based on the total amount of funds received by the LEA prior to any allowable expenditures or transfers by the local educational agency.
  • To help ensure such equity for such private school children, teachers, and other educational personnel, the State educational agency involved shall designate an ombudsman to monitor and enforce the equity requirements.
  • Funds allocated to an LEA for educational services and other benefits to eligible private school children shall be obligated in the fiscal year for which the funds are received by the LEA.
  • Each State educational agency shall provide notice in a timely manner to the appropriate private school officials in the state of the allocation of funds for educational services and other benefits that the LEA has determined are available for eligible private school children.
  • LEAs have the discretion of calculation the proportionate share each year or every two years.
  • The proportionate share is determined by the number of low-income students residing in the local district.
Calculating low-income:

A local educational agency shall have the final authority, consistent with this section, to calculate the number of children, ages 5 through 17, who are from low-income families and attend private schools by:

  • using the same measure of low income used to count public school children;
  • using the results of a survey that, to the extent possible, protects the identity of families of private school students, and allowing such survey results to be extrapolated if complete actual data are unavailable;
  • applying the low-income percentage of each participating public school attendance area, determined pursuant to this section, to the number of private school children who reside in that school attendance area; or
  • using an equated measure of low income correlated with the measure of low income used to count public school children.

Any dispute regarding low-income data for private school students shall be subject to the complaint process authorized in the Title VIII Uniform Provisions (Sec. 8501).

Control of funds:
  • The control of funds provided under Title I-A, and title to materials, equipment, and property purchased with such funds, must be in a public agency, and a public agency must administer such funds materials, equipment, and property.
  • Services must be provided by employees of a public agency, or through contract by such public agency with an individual, association, agency, or organization. The employee, individual, association, agency, or organization must be independent of the private school and of any religious organization, and such employment or contract must be under the control and supervision of the public agency.
  • A State educational agency shall provide services under this section directly or through contracts with public or private agencies, organizations, or institutions, if the appropriate private school officials have requested that the State educational agency provide such services directly; and have demonstrated that the local educational agency involved has not met the requirements for providing equitable services.
  • If a local educational agency is prohibited by law from providing for the participation in programs on an equitable basis of eligible children enrolled in private elementary schools and secondary schools, or if the Secretary determines that a local educational agency has substantially failed or is unwilling, to provide for such participation, as required by this section, the Secretary shall waive the requirements for the LEA and arrange for a bypass.
Provision of services:

To the extent consistent with the number of eligible children identified by a local educational agency who are enrolled in private elementary schools and secondary schools, a local educational agency shall:

  • after timely and meaningful consultation with appropriate private school officials, provide such children, on an equitable basis and individually or in combination, as requested by the officials to best meet the needs of such children, special educational services, instructional services (including evaluations to determine the progress being made in meeting such students’ academic needs), counseling, mentoring, one-on-one tutoring, or other benefits (such as dual or concurrent enrollment, educational radio and television, computer equipment and materials, other technology, and mobile educational services and equipment) that address their needs;
  • the local educational agency may provide services under this section directly or through contracts with public and private agencies, organizations, and institutions;
  • services and other benefits to private school students must be secular, neutral, and non-ideological
Consultation requirements:

Consultation must include meetings of school district officials and private school officials and must occur before the district makes any decision that affects the opportunities of eligible private school children to participate in programs under Title I-A. Such meetings must continue throughout the implementation and assessment of the services provided.

LEA and private school officials shall both have the goal of reaching agreement on how to provide equitable and effective programs for eligible private school children, the results of which agreement shall be transmitted to the designated ombudsman. Such process shall include

  • how the children's needs will be identified;
  • what services will be offered;
  • how, where, and by whom the services will be provided;
  • how the services will be academically assessed and how the results of that assessment will be used to improve those services;
  • the size and scope of the equitable services to be provided to the eligible private school children, and the proportion of funds that is allocated and how that proportion of funds is determined
  • the method or sources of data that are used to determine the number of children from low-income families in participating school attendance areas who attend private schools;
  • how and when the agency will make decisions about the delivery of services to such children, including the approximate time of day, services will be provided
  • whether the agency shall provide services directly or through a separate government agency, consortium, entity, or third-party contractor;
  • a thorough consideration and analysis of the views of the private school officials on the provision of services through a contract with potential third-party providers; and
  • how, if the agency disagrees with the views of the private school officials on the provision of services through a contract, the local educational agency will provide in writing to such private school officials an analysis of the reasons why the local educational agency has chosen not to use a contractor.
  • whether to provide equitable services to eligible private school children by creating a pool or pools of funds with all of the funds allocated under subsection (a)(4)(A) based on all the children from low-income families in a participating school attendance area who attend private schools
  • whether to consolidate and use funds provided in coordination with eligible funds available for services to private school children under applicable programs to provide services to eligible private school children participating in programs.

States that participate in Title I must create a committee of practitioners to advise the state in carrying out its responsibilities under this Title and the committee must include representatives of private school children.

Documentation:

Each school district must maintain in its records, and provide to the state education department involved, a written affirmation, signed by officials of each participating private school, that the meaningful consultation required has occurred.

  • The written affirmation must provide the option for private school officials to indicate their belief that timely and meaningful consultation has not occurred or that the program design is not equitable with respect to eligible private school children.
  • If private school officials do not provide such affirmation within a reasonable period of time, the school district shall forward to the state education department the documentation that such consultation has, or attempts at such consultation have taken place.
  • If a school district disagrees with the views of private school officials regarding an issue of consultation, the district must provide in writing to such private school officials the reasons why it disagrees.
Complaint process:

A private school official has the right to file a complaint with the state education department asserting that the school district did not engage in consultation that was meaningful and timely, did not give due consideration to the views of the private school official, or did not make a decision that treats private school students equitably.

  • If the private school official wishes to file a complaint, the official shall provide the basis of the noncompliance with this section by the local educational agency to the State educational agency, and the local educational agency shall forward the appropriate documentation to the State educational agency.

Title I, Part C: Education of Migratory Children

Purpose: to assist States in supporting high-quality and comprehensive educational programs and services during the school year and, as applicable, during summer or intersession periods, that address the unique educational needs of migratory children.

  • To ensure that migratory children who move among the States are not penalized in any manner by disparities among the States in curriculum, graduation requirements, and challenging State academic standards.
  • To ensure that migratory children receive full and appropriate opportunities to meet the same challenging State academic standards that all children are expected to meet.
  • To help migratory children overcome educational disruption, cultural and language barriers, social isolation, various health-related problems, and other factors that inhibit the ability of such children to succeed in school.
  • To help migratory children benefit from State and local systemic reforms.
Services to be provided:

To the extent feasible, such programs and projects will provide for:

  • advocacy and other outreach activities for migratory children and their families, including helping such children and families gain access to other education, health, nutrition, and social services;
  • professional development programs, including mentoring, for teachers and other program personnel;
  • family literacy programs;
  • the integration of information technology into educational and related programs
  • programs to facilitate the transition of secondary school students to postsecondary education
Priority for Services:

In providing services with funds received under this part, each recipient of such funds shall give priority to migratory children who have made a qualifying move within the previous 1-year period and are failing, or most at risk of failing, to meet the challenging State academic standards or have dropped out of school.

Private School Participation:
  • According to the Uniform Provisions of Title VIII, Sec. 8015, states and districts that receive Title I, Part C funds must provide equitable services to teachers and students in private schools located in their district.

TITLE II, Part A: —PREPARING, TRAINING, AND RECRUITING HIGH-QUALITY TEACHERS, PRINCIPALS, OR OTHER SCHOOL LEADERS

Purpose: to provide grants to State educational agencies and sub-grants to local educational agencies to:

  • increase student achievement consistent with the challenging State academic standards;
  • improve the quality and effectiveness of teachers, principals, and other school leaders;
  • increase the number of teachers, principals, and other school leaders who are effective in improving student academic achievement in schools;
  • provide low-income and minority students greater access to effective teachers, principals, and other school leaders.
Equitable services:

The SEA and LEA applications for funding under the Title must include “An assurance that the local educational agency will comply with section 8501 (regarding participation by private school children and teachers).  Professional development opportunities must meet the needs of the private school personnel as they seek to meet the needs of their students.”

All of the total allocation received by the SEA/LEA under Title II, Part A is subject to the provisions of equitable participation of private school personnel.

Eligible services:

The programs and activities shall address the learning needs of all students, including children with disabilities, English learners, and gifted and talented students.

While many of the specified activities of the Title are public school specific (teacher recruitment, class size reduction, teacher performance-based pay systems, etc.) the proportional share of private school funding may be used for providing private school personnel with high-quality, personalized professional development that is evidence-based and focused on improving teaching and student learning and achievement.

Allowable professional development activities may include those that:

  • help all students develop the skills essential for learning readiness and academic success
  • effectively integrate technology into curricula and instruction
  • develop programs and activities that increase the ability of teachers to effectively teach children with disabilities, and English learners
  • assist teachers, principals, or other school leaders with selecting and implementing formative assessments, designing classroom-based assessments, and using data from such assessments to improve instruction and student academic achievement
  • help educators understand when and how to refer students affected by trauma, and children with, or at risk of, mental illness;
  • address issues related to school conditions for student learning, such as safety, peer interaction, drug and alcohol abuse, and chronic absenteeism;
  • providing professional development and other comprehensive systems of support for teachers, principals, or other school leaders to promote high-quality instruction and instructional leadership in science, technology, engineering, and mathematics subjects, including computer science

TITLE III, PART A: LANGUAGE INSTRUCTION FOR ENGLISH LEARNERS AND IMMIGRANT STUDENTS

Purpose:

(1) to help ensure that English learners, including immigrant children and youth, attain English proficiency and develop high levels of academic achievement in English;

(2) to assist all English learners, including immigrant children and youth, to achieve at high levels in academic subjects so that all English learners can meet the same challenging State academic standards that all children are expected to meet;

(3) to assist teachers (including preschool teachers), principals and other school leaders, State educational agencies, local educational agencies, and schools in establishing, implementing, and sustaining effective language instruction educational programs designed to assist in teaching English learners, including immigrant children and youth;

(4) to assist teachers (including preschool teachers), principals and other school leaders, State educational agencies, and local educational agencies to develop and enhance their capacity to provide effective instructional programs designed to prepare English learners, including immigrant children and youth, to enter all-English instructional settings; and

(5) to promote parental, family, and community participation in language instruction educational programs for the parents, families, and communities of English learners.”.

Equitable services:

The equitable services requirement of Section 8501 to provide services to meet the needs of private school students and teachers are applicable.

During the consultation process, the LEA and private school officials should discuss how private school students will be identified as ELs and their teachers and other educational personnel will receive professional development services.


TITLE IV – 21ST CENTURY SCHOOLS

Title IV, Part A: Student Support and Academic Enrichment Grants


Purpose:
to improve students’ academic achievement by increasing the capacity of States, local educational agencies, schools, and local communities to:

  • provide all students with access to a well-rounded education;
  • improve school conditions for student learning;
  • Improve the use of technology in order to improve the academic achievement and digital literacy of all students.

Use of funds:
Title IV-A is a block grant that consolidates some of the smaller programs in prior authorizations of ESEA.  LEAs may use funds for a variety of activities including:

  • digital learning
  • drug and violence prevention
  • mental health services
  • creation of a healthy and safe school environment
  • access to personalized learning experiences supported by technology and professional development for the effective use of data and technology


Equitable Services:
The equitable services provisions of Title VIII, Section 8501 are applicable.

Title IV, Part B: 21st Century Community Learning Centers

Purpose: to provide opportunities for communities to establish or expand activities in community learning centers that—

  • provide opportunities for academic enrichment, including providing tutorial services to help students, particularly students who attend low-performing schools, to meet the challenging State academic standards;
  • offer students a broad array of additional services, programs, and activities, such as youth development activities, service learning, nutrition and health education, drug and violence prevention programs, counseling programs, arts, music, physical fitness and wellness programs, technology education programs, financial literacy programs, environmental literacy programs, mathematics, science, career and technical programs, internship or apprenticeship programs, and other ties to an in-demand industry sector or occupation for high school students that are designed to reinforce and complement the regular academic program of participating students; and
  • offer families of students served by community learning centers opportunities for active and meaningful engagement in their children’s education, including opportunities for literacy and related educational development
Community learning center defined:
  • A community learning center is an entity that assists students to meet the challenging State academic standards by providing the students with academic enrichment activities and a broad array of other activities during non-school hours or periods when school is not in session.
Equitable services requirement:

The equitable services provisions of Title VIII, Section 8015 are applicable.

  • Private schools are eligible to apply for a grant to become a direct provider.
  • Private school students in LEAs that are grant recipients may attend programs at an LEA sponsored community learning center in which the private school is located.

Title IV, Part F, Section 4644: Supporting High-ability Learners and Learning

Purpose: to promote and initiate a coordinated program, to be known as the ‘Jacob K. Javits Gifted and Talented Students Education Program’, of evidence-based research, demonstration projects, innovative strategies, and similar activities designed to build and enhance the ability of elementary schools and secondary schools nationwide to identify gifted and talented students and meet their special educational needs.

Use of funds:

Programs and projects assisted under this section may include any of the following:

  • Conducting evidence-based research on methods and techniques for identifying and teaching gifted and talented students and for using gifted and talented programs and methods to identify and provide the opportunity for all students to be served, particularly low-income and at-risk students.
  • Establishing and operating programs and projects for identifying and serving gifted and talented students, including innovative methods and strategies (such as summer programs, mentoring programs, peer tutoring programs, service learning programs, and cooperative learning programs involving business, industry and education) for identifying and educating students who may not be served by traditional gifted and talented programs.
  • Providing technical assistance and disseminating information, which may include how gifted and talented programs and methods may be adapted for use by all students, particularly low-income and at-risk students.
Equitable services requirement:

Yes, to some extent. The legislative language says: in making grants and entering into contracts under this section, the Secretary shall ensure, where appropriate, that provision is made for the equitable participation of students and teachers in private nonprofit elementary schools and secondary schools, including the participation of teachers and other personnel in professional development programs serving such students.”

Title V: State Innovation and Local Flexibility

Purpose: to allow States and local educational agencies the flexibility to target Federal funds to the programs and activities that most effectively address the unique needs of States and localities.

Transferability:

A State or local educational agency may transfer any funds allotted to BUT NOT from these programs:

  • Part A of title I.
  • Part C of title I.
  • Part D of title I.
  • Part A of title III.

Equitable participation:
Fund designated for participation of private school students and teaches may not be transferred without consultation with private school officials.

Title VIII, GENERAL PROVISIONS

Title VIII, Sec. 8015. Participation by private school children and teachers

SPECIAL RULE: This section pulls together provisions of ESSA that pertain to the equitable participation of students and teachers in private schools.

It specifically references programs that don’t specifically mention private school student and teacher participation as well as pointing to some new and changed provisions affecting private school students and teachers.

(A) IN GENERAL. Educational services and other benefits provided under this section for private school children, teachers, and other educational personnel shall be equitable in comparison to services and other benefits for public school children, teachers, and other educational personnel participating in the program and shall be provided in a timely manner.

(B) OMBUDSMAN. To help ensure equitable services are provided to private school children, teachers, and other educational personnel under this section, the State educational agency involved shall direct the ombudsman to monitor and enforce the requirements of this section.

(C) NOTICE OF ALLOCATION. Each State educational agency shall provide notice in a timely manner to the appropriate private school officials in the State of the allocation of funds for educational services and other benefits under this subpart that the local educational agencies have determined are available for eligible private school children.

Programs covered by Sec. 8015:

  • Title I, Part C: Education of Migratory Children
  • Title II, Part A: Preparing, Training and Recruiting Teachers and School Leaders
  • Title III; Part A: Language Instruction for English Learners and Immigrant Students
  • Title IV, Part A: Student Support and Academic Enrichment Centers
  • Title IV, Part B: 21st Century Community Learning Centers
  • Title I, Part A

For the following programs the applicable equitable participation requirements are contained within the specific Title:

  • Title I, Part A: Improving Basic Programs Operated by State and Local Educational Agencies
  • Title IV, Part F, Subpart 4: Supporting High-Ability Learners and Learning
  • Title V, Part A: Funding Transferability for State and Local Educational Agencies
  • Title IX: Preschool Development Grants
Consultation:

To ensure timely and meaningful consultation, a State educational agency, local educational agency, educational service agency, consortium of those agencies or entity shall consult with appropriate private school officials. Such agency and private school officials shall both have the goal of reaching agreement on how to provide equitable and effective programs for eligible private school children, on issues such as:

(A) how the children’s needs will be identified;

(B) what services will be offered;

(C) how, where, and by whom the services will be provided;

(D) how the services will be assessed and how the results of the assessment will be used to improve those services;

(E) the size and scope of the equitable services to be provided to the eligible private school children, teachers, and other educational personnel and the amount of funds available for those services and how that amount is determined

(F) how and when the agency, consortium, or entity makes decisions about the delivery of services, including a thorough consideration and analysis of the views of the private school officials on the provision of contract services through potential third-party providers.

(G) whether the agency, consortium, or entity shall provide services directly or through a separate government agency, consortium, or entity, or through a third-party contractor;

(H) whether to provide equitable services to eligible private school children:

  • by creating a pool or pools of funds with all of the funds allocated based on all the children from low-income families in a participating school attendance area who attend private schools; or
  • in the agency’s participating school attendance area who attend private schools with the proportion of funds allocated under subsection based on the number of children from low-income families who attend private schools.


(A) DOCUMENTATION.
Each local educational agency shall maintain in the agency’s records, and provide to the State educational agency involved, a written affirmation signed by officials of each participating private school that the meaningful consultation required by this section has occurred. The written affirmation shall provide the option for private school officials to indicate such officials’ belief that timely and meaningful consultation has not occurred or that the program design is not equitable with respect to eligible private school children. If such officials do not provide such affirmation within a reasonable period of time, the local educational agency shall forward the documentation that such consultation has, or attempts at such consultation have, taken place to the State educational agency

(B) OBLIGATION OF FUNDS. Funds allocated to a local educational agency for educational services and other benefits to eligible private school children shall be obligated in the fiscal year for which the funds are received by the agency.

(C) NOTICE OF ALLOCATION. Each State educational agency shall provide notice in a timely manner to the appropriate private school officials in the State of the allocation of funds for educational services and other benefits under this subpart that the local educational agencies have determined are available for eligible private school children.

(D) COMPLIANCE

(A) IN GENERAL. If the consultation required under this section is with a local educational agency or educational service agency, a private school official shall have the right to file a complaint with the State educational agency that the consultation required under this section was not meaningful and timely, did not give due consideration to the views of the private school official, or did not make a decision that treats the private school or its students equitably as required by this section.

(B) PROCEDURE. If the private school official wishes to file a complaint, the private school official shall provide the basis of the noncompliance and all parties shall provide the appropriate documentation to the appropriate officials.

(C) SERVICES. A State educational agency shall provide services under this section directly or through contracts with public and private agencies, organizations, and institutions, if the appropriate private school officials have—

(i) requested that the State educational agency provide such services directly; and

(ii) demonstrated that the local educational agency involved has not met the requirements of this section in accordance with the procedures for making such a request, as prescribed by the State educational agency.”

TITLE VIII, SEC, 8017: Complaint process for participation of private school children

(a) Procedures for complaints.—The Secretary shall develop and implement written procedures for receiving, investigating, and resolving complaints from parents, teachers, or other individuals and organizations concerning violations of section 8501 by a State educational agency, local educational agency, educational service agency, consortium of those agencies, or entity. The individual or organization shall submit the complaint to the State educational agency for a written resolution by the State educational agency within 45 days.

“(b) Appeals to Secretary.—The resolution may be appealed by an interested party to the Secretary not later than 30 days after the State educational agency resolves the complaint or fails to resolve the complaint within the 45-day time limit. The appeal shall be accompanied by a copy of the State educational agency’s resolution, and, if there is one, a complete statement of the reasons supporting the appeal. The Secretary shall investigate and resolve the appeal not later than 90 days after receipt of the appeal.

Title VIII, Sec. 8018. By-pass determination process

(a) IN GENERAL.—If, by reason of any provision of law, a State educational agency, local educational agency, educational service agency, consortium of those agencies, or other entity is prohibited from providing for the participation in programs of children enrolled in, or teachers or other educational personnel from, private elementary schools and secondary schools, on an equitable basis, or if the Secretary determines that the agency, consortium, or entity has substantially failed or is unwilling to provide for that participation, as required by section 8051, the Secretary shall

  • waive the requirements of that section for the agency, consortium, or entity; and
  • arrange for the provision of equitable services to those children, teachers, or other educational personnel through arrangements that shall be subject to the requirements of this section.

(b) DETERMINATION.—In making the determination under subsection (a), the Secretary shall consider one or more factors, including the quality, size, scope, and location of the program, and the opportunity of private school children, teachers, and other educational personnel to participate in the program.

Procedural details are found in Sec. 8018.

Section 1117 of ESSA
(Adobe PDF File)
Title VIII of ESSA
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