The House, the Senate, and President Obama Act to Sunset NCLB and State Waivers

ESSA WHOn December 2, the House of Representatives passed the Every Student Succeeds Act (ESSA), 359 to 64. The following week, on December 9, the Senate acted similarly in passing the legislation, 85 to 12. President Obama signed the legislation into law on December 10, saying, “It creates a real partnership between the states, which will have new flexibility to tailor their improvement plans and the federal government, which will have the oversight to make sure the plans are sound.” Though reauthorized seven years late, the new law is strongly supported by most educational organizations – including SAANYS.

The new federal law will be authorized for four years, rather than for the more typical five-year period. This means the law will be partially implemented under the current administration, and will be up for reauthorization before the completion of the first term of the next administration. It will be phased-in as follows:

  • July 1, 2016 for noncompetitive (formula) programs (e.g., Title I)
  • August 1, 2016 for sun setting state waivers
  • October 1, 2016 for competitive programs
  • School year 2017-18 for accountability requirements

The new law will change the federal-state relationship by returning more decision-making to the states.

With respect to the state accountability system, the secretary may not add requirements or criteria that are inconsistent or outside of the scope of Title I-A or in excess of statutory authority granted to the secretary. Also, as a condition of the state plan, the secretary may not:

  • Require a state to add new requirements;
  • Require a state to add or delete specific elements to the standards;
  • Prescribe goals of progress or measurements of interim progress that are set by states under the accountability system;
  • Prescribe specific assessments or items to be used in assessments;
  • Prescribe accountability indicators that states must use;
  • Prescribe the weight of measures or indicators;
  • Prescribe the specific methodology states must use to differentiate or identify schools;
  • Prescribe school improvement strategies or exit criteria for English language learners;
  • Prescribe minimum N-sizes for student participation in state testing;
  • Prescribe any teacher or principal evaluation system;
  • Prescribe any measures of teacher or principal effectiveness; or
  • Prescribe the way in which the state factors the 95% requirement into their accountability system.


For Accountability, states must continue to identify and intervene in the lowest performing five percent of schools (a.k.a., priority schools), high schools where the graduation rate is 67 percent or lower (note the current cut-point is 60 percent), and schools where student subgroups are low performing (a.k.a., focus schools). Although there remains a requirement that 95 percent of students participate in state assessments, states are given discretion as to how lower participation will be addressed in the state accountability system – and there is no-longer a requirement that a participation rate under 95 percent automatically results in a determination of performance failure. Finally, states will have to determine indicators of success including academic indicators (such as proficiency on tests, English-language proficiency, and graduation rates) and an additional indicator (such as student engagement, teacher engagement, and access to advanced coursework) – with the academic indicators counting “much more” in the state accountability system.

For Student Assessment, the bill maintains NCLB requirements to annually assess all grade 3 to 8 students in English language arts and mathematics. It should be noted, however, that SAANYS strongly supported H.R. 4172, the Student Testing Improvement and Accountability Act introduced Congressman Chris Gibson. The House bill would have discontinued the requirement for annual testing, and instead would have required ELA and mathematics testing at least once in grades 3 to 5, 6 to 9, and 10 to 12.

In terms of opt-outs, ESSA allows states to establish testing opt-out laws. Districts and schools will be required to know the relevant policies in regard to opting out, and parents must be informed about the tests and notified of opt out policies and procedures. Finally, states are authorized to determine the student “N size” necessary for statistically sound assessment results.

The new law also extends flexibility to states to assess students in new ways, including portfolios, projects, and performance tasks. States are also authorized to use computer-adaptive tests that measure performance above and below grade level.

For Professional Development, Title II part A will provide grants to states and school districts to increase student achievement, improve teacher, principal, and other school leader effectiveness, and provide low-income and minority students greater access to effective teachers, principals, and other school leaders. During visits with members of New York State’s federal delegation, SAANYS advocated for a Title II ten percent set-aside for school administrator professional development. Partial success was achieved in that the new law allows states to reserve up to an additional 3 percent of Title II funds to provide targeted supports to principals and other school leaders.

Programmatically, the law requires that SED work with school districts for successful middle school-to-high school student transitions, decreasing the risk of students dropping out. Title II Subpart 2, consistent with SAANYS recommendations, supports high-need under-performing schools with prekindergarten to grade 12 support to improve student achievement in reading and writing through the SAANYS-supported Literacy Education for All, Results for the Nation (LEARN) program.

The act also includes support for expanded learning time (e.g., there is a separate line item for the 21st Century Community Learning Center Program) and a definition of “expanded learning time” focused on students and educators:

The term ‘expanded learning time’ means using a longer school day, week, or year schedule to significantly increase the total number of school hours, in order to include additional time for (A) activities and instruction for enrichment as part of a well-rounded education; and (B) instructional and support staff to collaborate, plan, and engage in professional development (including professional development on family and community engagement) within and across grades and subjects.

Separate line items are also set for:

  • Full-service community schools
  • Parent engagement
  • Gifted education
  • Arts education
  • Preschool development

In Title III, funding is allocated to help English language learners achieve English proficiency. Some (though not enough) state flexibility is provided for the inclusion of ELL students in state assessments; and a requirement is established for the state education department provide technical assistance to districts serving large numbers of English learners.

For more information regarding SAANYS legislative positions and meetings with House and Senate representatives, contact James Viola, director of government relations, by e-mailing To access a summary of the ESSA provisions, visit