Every Student Succeeds Act (K-12)

On December 10, 2015, President Obama signed the Every Student Succeeds Act (“ESSA”), reauthorizing the federal Elementary and Secondary Education Act (“ESEA”) and replacing the No Child Left Behind Act (“NCLB”), the 2001 reauthorization of ESEA. The ESSA made significant changes to the laws put in place by NCLB, particularly with regard to the school accountability system, allocation of funding, and statewide assessments. The ESSA will go into full effect in the 2017-2018 school year. This Legal Update addresses the changes in the transitionary year, 2016-2017.

LEGAL UPDATE

May 19, 2016

To:  Superintendents, Member School Districts (K-12)

From: Jennifer E. Nix, Assistant General Counsel

Subject:  Every Student Succeeds Act  

Memo No. 16-2016

On December 10, 2015, President Obama signed the Every Student Succeeds Act (“ESSA”), reauthorizing the federal Elementary and Secondary Education Act (“ESEA”) and replacing the No Child Left Behind Act (“NCLB”), the 2001 reauthorization of ESEA.  The ESSA made significant changes to the laws put in place by NCLB, particularly with regard to the school accountability system, allocation of funding, and statewide assessments.  The ESSA will go into full effect in the 2017-2018 school year.[1]  This Legal Update addresses the changes in the transitionary year, 2016-2017.

The U.S. Department of Education has identified seven NCLB requirements that Local Education Agencies (“LEAs”) do not need to comply with during the 2016-2017 school year because those provisions are not continued under ESSA.[2]  Additionally, CDE has prepared an ESSA 2016-2017 Transition Plan to clarify what expectations are for LEAs in the 2016-2017 school year.[3]  The Transition Plan is attached to this Legal Update.

The seven NCLB requirements with which the U.S. Department of Education does not expect LEAs to comply are:

  1. Requirement to report performance against annual measurable objective

LEAs are still required to implement most of the NCLB’s report card requirements for the 2014-2015, 2015-2016, and 2016-2017 school years, with some exceptions.  LEAs no longer have to include annual yearly progress (all school years), annual measurable objectives (all school years), or teacher quality information (2016-2017 school year only).

  1. Requirement to notify parents when their child has been assigned to, or has been taught for four or more consecutive weeks by, a teacher who is not highly qualified

Beginning with the 2016-2017 school year, LEAs are no longer required to provide notice to parents related to the highly qualified status of their child’s teacher.  Pursuant to CDE’s Transition Plan, LEAs may notify parents/guardians about alternative supports and school choice options.  Additionally, pursuant to section 1111(h)(6)(A) of the ESEA, LEAs are required to notify parents that they may request, and the LEA will provide, certain information regarding the qualifications of the student’s teachers and paraprofessionals, as appropriate.

  1. Requirement that CDE provides certain types of school supports and recognition

Beginning with the 2016-2017 school year, CDE is not required to provide support for LEAs and schools receiving Title I, Part A funds, or to provide recognition of schools that close achievement gaps and exceed annual yearly progress targets.

  1. Requirement to hire “highly qualified” teachers, to report on progress towards having all teachers be highly qualified, and to ensure that paraprofessionals meet certain qualifications and perform certain duties

Beginning with the 2016-2017 school year, LEAs will not have to comply with the NCLB requirements for highly qualified teachers, the NCLB qualifications and duties for paraprofessionals, and the NCLB requirements to use funds to support compliance with the highly qualified teacher requirements.  CDE’s Transition Plan states that the minimum unit requirement for verifying subject matter competence for the 2016-2017 school year will be consistent with California state licensure, which requires a minimum of twenty semester units of non-remedial coursework, instead of the thirty-two hours required under NCLB.  This should increase hiring flexibility for LEAs.

  1. Requirement that an LEA not making progress towards all teachers being highly qualified create and implement an improvement plan

Beginning with the 2016-2017 school year, LEAs are not required to develop an improvement plan or restrict the use of Federal education funds pursuant to such a plan, and CDE is not required to provide LEAs with technical assistance required to develop such a plan.  Additionally, LEAs will no longer be restricted in their use of Title I, Part A funds for hiring paraprofessionals.

  1. Requirement that CDE establish annual measurable achievement objectives

CDE is not required to make new accountability requirements based on 2014-2015 or 2015-2016 assessment data.  CDE’s Transition Plan provides that schools and districts identified for Program Improvement under Title I or Title III should revise their LEA plans as needed to implement corrective actions throughout the 2016-2017 school year.  CDE has stated that LEAs are required to implement those corrective actions or interventions in the 2016-2017 school year, except for Supplemental Educational Services or Public School Choice, as detailed below in this Legal Update’s FAQ section.

  1. Requirement that each LEA that receives Title III funding and fails to meet one or more annual measurable achievement objectives provide notice to parents of such failure

Because CDE is not required to calculate annual measurement achievement objectives based on assessment results from the 2014-2015, 2015-2016, or 2016-2017 school years, LEAs are not required to comply with NCLB’s parental notification requirements, which required each LEA that failed to meet one or more of the annual measurable achievement objectives to provide notice to parents of such failure.

However, CDE and LEAs must continue to comply with the parental notification requirements in section 3302(a) of the ESEA, as amended by NCLB, through the 2016-2017 school year, which requires that LEAs provide notice to the parent or parents of a student identified as an English learner within 30 days of the start of the school year (or, for students identified later in the school year, within two weeks) that includes, for example, the reason for identification, parents’ rights, and other important information.

Below are the answers to several frequently asked questions about ESSA.

  1. What are the general requirements for schools and LEAs identified as in need of improvement, corrective action, or restructuring in the 2016-2017 school years?  Do LEAs need to provide students in schools identified for improvement, corrective action, or restructuring with supplemental educational services and public school choice in the 2016-2017 school year?

The ESSA requires that a school or LEA that was identified in 2015-2016 by CDE as in need of improvement, corrective action, or restructuring under NCLB continue to implement the same interventions in the 2016-2017 school year.  California elected to develop a Transition Plan that does not require LEAs to provide Supplemental Educational Services, Public School Choice, or the attendant parental notice requirements in the 2016-2017 school year.

Supplemental Educational Services.  The CDE Transition Plan provides that LEAs with schools identified in Program Improvement Year 2 and beyond must provide “Alternative Supports” to eligible students in the 2016-2017 school year.  CDE defined “Alternative Supports” as “supplemental activities designed to increase the academic achievement of socioeconomically disadvantaged students attending schools in PI Year 2 and beyond.”  The Transition Plan contains significant additional information to assist LEAs with meeting this requirement.

Public School Choice.  The CDE Transition Plan provides that LEAs must allow students who previously transferred to another public school under NCLB to remain in that school until the child has completed the highest grade offered in that school.  LEAs may continue to offer the Title I, Part A Public School Choice to eligible students.  LEAs with students who previously transferred to another public school prior to the 2016-2017 school year must set aside Title 1, Part A funds for Choice-related transportation.

Title I Parent Notification.  LEAs are no longer required to provide the required notice from NCLB to parents/guardians of a student in a school identified as in need of improvement, corrective action, or restructuring, but may do so.  CDE has stated that it will post a sample parental notification template on the CDE Title I, Part A – Accountability Parental Notification Templates website.

  1. What assessments will be administered in the 2016-2017 school year?

English Language Arts/Literacy and Mathematics Summative Assessments.  In 2016-2017, California will continue to administer the Smarter Balanced Summative Assessments in English Language Arts/Literacy and Mathematics in grades three through eight and eleven.  The California Alternate Assessments will still be administered to those students with significant cognitive disabilities whose IEPs designate the use of such an alternate assessment.

California English Language Development Test.  In 2016-2017, the California English Language Development Test (CELDT) will continue to be administered.  In the spring of 2017, some school districts will test the English Language Proficiency Assessments for California (ELPAC) Summative Assessment field test.  The ELPAC will replace the CELDT in 2018-2019.

Science.  In 2016-2017, all students in grades five through eight will participate in a full census pilot test of the California Next General Science Standards (CA NGSS) Summative Assessments.  Additionally, a sample of tenth, eleventh, and twelfth grade students will participate in the pilot test.  Alternate testing for the CA NGSS is being developed and a pilot test will be given to those students in the pilot testing grades whose IEPs designate the use of such alternate assessment.

  1. Must CDE and LEAs continue to comply with the NCLB requirements for teachers and paraprofessionals?

CDE and LEAs must continue to comply with section 1119 of the ESEA, as amended by NCLB, through the 2015-2016 school year, including the requirement that CDE and LEAs report information related to highly qualified teachers based on the 2014-2015 and 2015-2016 school years.  The U.S Department of Education is not requiring States to comply with the requirements for highly qualified teachers, the qualifications and duties for paraprofessionals, and use of funds to support compliance with the highly qualified teacher requirements in the 2016-2017 school year.  The CDE Transition Plan contains a detailed chart answering more specific questions regarding hiring practices.

  1. Did the ESSA change any requirements with regard to special education students?

As discussed above, the ESSA eliminated the NCLB highly qualified teacher requirement beginning in the 2016-2017 school year.  For special educators, the ESSA amends the Individuals with Disabilities Education Act (“IDEA”) provision at 20 U.S.C. section 1412(a)(14)(C).  The new provision requires that a special education teacher who teaches elementary, middle, or secondary school:

  1. Have obtained a full state certification as a special education teacher or passed the state special education teacher licensing examination and hold a license to teach in the state as a special education teacher;
  2. Have not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
  3. Hold at least a bachelor’s degree.

The ESSA requires that all teachers and paraprofessionals working in Title I programs meet applicable state certification and licensure requirements, including any requirements for certification obtained through alternative routes to certification.

Regarding assessment of special education students, under the ESSA, LEAs have more latitude in how they use alternate assessments, which are for “students with the most significant cognitive disabilities.”[4]  LEAs now have no limits on their abilities to use the scores from such assessments to increase proficiency rates in reading or math; however, the U.S. Department of Education has stated that an LEA would face oversight from CDE if it used alternative assessments for more than one percent of all students assessed.  CDE would be required to make the LEA submit information to the state justifying the need to assess more than one percent of its students with an alternate assessment, post that information publicly, and provide appropriate oversight to the LEA.

Regarding graduation and diplomas, the ESSA prohibits an LEA from precluding a student who took an alternate assessment from attempting to complete the requirements for a regular high school diploma, and prohibits counting a lesser credential, such as a certificate of completion, as a regular high school diploma.  For students taking alternate assessments, the student’s parents/guardians must be informed that, as a part of the Individualized Education Program (IEP) process, their child’s academic achievement will be measured based on the alternate standards and, if applicable, that participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma.

  1. Will LEAs continue to receive Migrant Education Program funds?

Yes, LEAs receiving Migrant Education Program funds will continue to implement program activities pursuant to NCLB guidelines in 2016-2017.  This program will be brought into line with ESSA in the 2017-2018 school year.

  1. Should LEAs continue to implement LEA plans for improvement activities for Title III English Learners and Immigration Students?

Yes, LEAs identified for improvement in the 2014-2015 and 2015-2016 school years must continue to implement improvement activities in the 2016-2017 school year, consistent with revised LEA plans.  Areas of improvement to be implemented in the 2017-2018 school year should be addressed by LEAs in the LCAP.  Additionally, beginning in the 2017-2018 school year, accountability for Title III will be incorporated into the accountability system for Title I.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

© 2016 School and College Legal Services of California

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.


[1] The California Department of Education (“CDE”) is required to submit an ESSA State Plan to the U.S. Department of Education, to be operational in 2017-2018.  CDE anticipates that the ESSA State Plan will assist with an “orderly transition during the 2016-17 school year to fully implement ESSA in the 2017-18 school year.”

[2] This list may be updated by the U.S. Department of Education in the future.

[3] The Transition Plan was approved by the State Board of Education on May 11, 2016.

[4] The ESSA negotiated rulemaking committee opted to not define the term “students with the most significant cognitive disabilities.”