On Dec. 10, 2015, President Obama signed into law the Every Student Succeeds Act (ESSA). The ESSA is the new version of the Elementary and Secondary Education Act and replaced the controversial and highly-criticized No Child Left Behind Act (NCLB). I am confident that much will be written about the ESSA in the coming years as we witness its effect on our nation’s public school students. I offer here only some brief comments on a few aspects of the 391-page law that I find interesting and praiseworthy, as well as some commentary on its very significant shortcomings.

The ESSA is an improvement over NCLB in several ways and is more consistent with the overall intent of the original Elementary and Secondary Education Act of 1965, which was to expand educational opportunities for impoverished and marginalized students.  I highlight the following:

  • It does more to address the needs of English-language learners (ELL) by requiring states to demonstrate that they are improving the English language proficiency of ELL students. The ESSA also authorizes more money to support English language learning programs than prior versions of this law.
  • It locks in $250 million each year from 2017–2020 for early childhood education programs. While this amount is still insufficient, it is a step in the right direction given how critical early childhood education programs are, particularly for marginalized children.
  • It expands educational opportunities for students involved in the juvenile justice system. It requires states to provide opportunities for these students to participate in credit-bearing coursework and to have established procedures for timely re-enrolling these students into schools or re-entry programs.
  • It provides more protection to foster care and homeless students, two highly-vulnerable groups. It requires states to give support for the identification, enrollment, and school stability of homeless children. It also requires states to ensure the school stability of children in foster care unless it is in a child’s best interest to transfer schools.  It further requires states to gather and disseminate data on homeless and foster care children, including their graduation rates.
  • It requires states to specify how they will help school districts improve school conditions by reducing (a) bullying and harassment; (b) schools’ reliance on exclusionary discipline methods such as suspensions and expulsions; and (c) schools’ reliance on aversive behavioral interventions that may compromise students’ safety or health.
  • It mandates states to provide much more data in important areas such as school expenditures and teacher and principal retention rates.
  • It authorizes a pilot program in which a select number of districts will participate that creates a funding system based on weighted student allocations for low-income and disadvantaged students.

However, the ESSA also has some very significant shortcomings. I focus on five:

  • It provides almost no new money for low-income K-12 school districts. Congress increased Title I money by a mere $500 million, which is far below what many cash-strapped school districts require to adequately educate the myriad of students they serve with severe needs.
  • It provides states with almost complete autonomy over district and school accountability. While this might be good in some respects (i.e., many states may choose to scale back their over-reliance on standardized testing), historically states have a very poor track record of addressing the educational needs of marginalized students. Thus, many civil rights activist groups such as the NAACP and the Southern Poverty Law Center are concerned that almost complete state autonomy will lead to greater disparities in student academic achievement.
  • It contains almost no incentives for states to equalize funding across districts and schools.
  • It does not close the so-called “comparability loophole.” To be eligible to receive Title I funds, states and districts must demonstrate that they provide comparable services to Title I schools and more affluent schools with their own funds.  However, teacher salary is excluded from that comparability evaluation.  In other words, two schools might still be considered “comparable,” even though one school is staffed with almost all beginning, lower-paid teachers and another is staffed with veteran, highly-paid teachers as long as those schools have the same proportion of teachers.
  • It does little to address the racial disparities relating to discipline and the harsh, punitive environments typically found in schools serving high populations of minority students. States have the option to include school climate as a factor in their accountability structures but are not compelled (nor have an incentive) to do so.

Jason Nance

Jason P. Nance is an Associate Professor of Law and the Associate Director for Education Law and Policy at the Center on Children and Families at the University of Florida Levin College of Law. He teaches education law, remedies, torts, and introduction to the legal profession. He focuses his research and writing on racial inequalities in the public education system, school discipline, the school-to-prison pipeline, students’ rights, and other issues in education law. His scholarship has been or will soon be published in the Washington University Law Review, Wisconsin Law Review, Emory Law Journal, Arizona State Law Journal, Colorado Law Review, and Connecticut Law Review among several other journals. Professor Nance currently serves as the reporter for the American Bar Association's Joint Task Force on Reversing the School-to-Prison Pipeline, where he is authoring a report and recommendations and proposing resolutions for the ABA to adopt to help dismantle the school-to-prison pipeline nationwide.

In addition to earning a J.D. at the University of Pennsylvania Law School, Professor Nance has a Ph.D. in education administration from the Ohio State University, where he also focused on empirical methodology. Prior to joining the University of Florida Levin College of Law in 2011, Professor Nance was a visiting assistant professor of law at the Villanova University School of Law and a visiting assistant professor of applied statistics at the Ohio State University's College of Education. He also was a litigation associate at Skadden, Arps, Slate, Meagher & Flom LLP for several years and clerked for Judge Kent A. Jordan of the U.S. Court of Appeals for the Third Circuit and the U.S. District Court for the District of Delaware. Before attending graduate school and law school, Professor Nance served a public school math teacher in a large, metropolitan school district.

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