1. Identification of Schools Under ESSA
To Accountability…and Beyond!! Brustein & Manasevit Fall Forum 2016 November 30 – December 2, 2016
Leigh Manasevit, Esq. and Steven Spillan, Esq.

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Agenda
Challenging Academic Standards/Assessments
Accountability
Identification
Effect on Other Programs
Secretarial Authority
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3. Standards & Assessments
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4. State Adoption of Standards Sec. 1111
States must provide an assurance that they have adopted challenging academic content standards and aligned academic achievement standards
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State Adoption (cont.)
Standards Must:
Be the same for all public schools in the State
Expect the same level of achievement from all schools
Be aligned with entrance into credit-bearing coursework at State institutions of higher education, and relevant CTE standards
State standards are NOT subject to review by U.S. Department of Education
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6. State Adoption (cont.) Sec. 1111
States must implement assessments aligned with standards in math, reading, and science
Math, reading assessments must be given in each of grades 3-8 and once in high school
Science assessment must be given at least once in each grade-span of 3-5, 6-9, and 10-12
(NEW) ESSA does not prohibit ED from requiring peer review of assessments
In subsequent guidance, ED has made clear it will continue peer review process for foreseeable future
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7. English Language Assessments
(NEW) State must also adopt assessments of English language proficiency
Conduct annual assessment of all ELs in English proficiency
Must be aligned to State EL proficiency standards
Identify languages present to a significant extent and note where native-language assessments are not available but are needed
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8. Alternate Assessments Sec. 1111(b)
(NEW) 1% limitation on use of alternate assessments
Limit is at the State level
Neither ED nor SEA can impose LEA-level cap
LEAs are encouraged to stay below 1% threshold
LEAs must provide notice and justification to SEA if they exceed 1%
Enforcement authority/obligation is at State level
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9. Alternate Assessments (cont.)
(NEW) Subject to waiver authority under Sec. 8401
(NEW) All other alternate or modified assessments are prohibited (previously prohibited by regulation).
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10. Alternate Assessments 200.6(b)(3)
A State must ensure that the use of appropriate accommodations does not deny a student with a disability—
The opportunity to participate in the assessment; and
Any of the benefits from participation in the assessment that are afforded to students without disabilities.
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11. Alternate Assessments (cont.) 200.6(c)
A State must—
Not prohibit an LEA from assessing more than 1 percent of its assessed students in a given subject;
Require that an LEA submit information justifying the need of an LEA to assess more than 1 percent of its assessed students;
Provide appropriate oversight, as determined by the State, of an LEA that is required to submit information to the State; and
Make the information submitted by an LEA publicly available, provided that such information does not reveal PII.
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12. Alternate Assessments (cont.) 200.6(c)
If a State anticipates that it will exceed the cap the State may request that the Secretary waive the cap for the relevant subject(s).
Such request must—
Be submitted at least 90 days prior to the start of the State’s first testing window;
Provide State-level data, from the current or previous school year, including:
% students assessed with alternate assessments;
That the state has 95% assessment participation.
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13. Alternate Assessments (cont.) 200.6(c)
For each LEA that will assess more than 1%, the State must include that the LEA:
Has followed state guidelines including assessment criteria;
Will not significantly increase # of alternate assessments from the prior year, unless the # of students with the most cognitive disabilities has increased; and
Will address any disproportionality.
The State must also include a timeline by which:
The State will improve implementation of its alternative assessment guidelines
The State will take additional steps to support and provide oversight to each LEA that the State anticipates will exceed the 1% cap
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14. Locally Selected Assessment Sec. 1111(b)(2)(H)
The State may permit an LEA to administer a locally selected, nationally recognized high school academic assessment.
If a State chooses to offer this option, it must establish technical criteria to determine if the assessment an LEA wishes to use meets specific requirements.
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15. Locally Selected Assessment Sec. 1111(b)(2)(H)
Be aligned with the State's academic content standards and be equivalent in its content coverage, difficulty, and quality to the statewide assessment;
Provide comparable, valid, and reliable data on academic achievement for all students and each subgroup of students;
Meet the requirements regarding statewide assessments;
Provide unbiased, rational, and consistent differentiation between schools within the State for accountability purposes.
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16. Locally Selected Assessment 200.3
State has discretion over whether to permit its LEAs to select and administer a nationally recognized high school academic assessment in lieu of the statewide assessment.
LEA must administer the same assessment to all high school students in the LEA. 
Except for those with most significant cognitive disabilities taking alternate assessment
State to ensure that the use of appropriate accommodations does not deny a student with a disability or an English learner the opportunity to participate in the assessment.
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17. Locally Selected Assessment 200.3
Approved LEA is required to update its local plan by describing how the request was developed consistent with all requirements for consultation.
An LEA that includes any public charter schools must provide an opportunity for meaningful consultation to all public charter schools whose students would be included in such assessment.
If a public charter school is an LEA under State law, must provide an assurance that the use of the assessment is consistent with State charter school law and that the LEA consulted with its authorized public chartering agency.
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18. Locally Selected Assessment 200.3
Defines “nationally recognized high school academic assessment” to mean:
An assessment of high school students' knowledge and skills
That is administered in multiple States and
Is recognized by IHEs in those or other States for the purposes of entrance or placement into credit-bearing courses in postsecondary education or training programs.
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19. 8th Grade Math Exemption Sec. 1111(b)(2)(C)
State may exempt an 8th grade student from the math assessment if the student instead takes an end-of-course test the State typically administers in high school.
The student's performance on the high school assessment must be used in the year in which the student takes the assessment for purposes of measuring academic achievement and calculating participation rate.
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20. 8th Grade Math Exemption (cont.)
In high school, the student must take a mathematics assessment that is an end-of-course assessment or another assessment that is more advanced than the assessment the student took in 8th grade.
Student's results must be used to measure academic achievement and calculate participation rate for his or her high school.
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8th Grade Exemption 200.5(b)
Only a State that administers an end-of-course math assessment to meet the high school assessment requirement may offer the exception to 8th grade students.
The exception would not apply in a State that administers a general math assessment in, for example, 11th grade.
Permits a student who received the exception in 8th grade to take in high school either a State-administered end-of-course math assessment or a nationally recognized high school academic assessment in math that is more advanced than the assessment the student took in 8th grade.
The more advanced high school assessment would need to be submitted for peer review.
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22. Assessment Participation
Protecting opt-outs?
“Nothing in this paragraph shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments…”
December 22, 2015, Letter to Chief State School Officers
However, ED has said that it will continue to enforce 95% requirement through SY
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23. Measuring Achievement
Assessment systems must enable disaggregation by:
Each major racial and ethnic group
Economically disadvantaged students
Students with disabilities
English proficiency status
Migrant status
Gender
NOTE: additional disaggregation required for Title III and for State/local report cards
NOTE: accountability not based on achievement by migrant status or gender
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24. Innovative Assessment Pilot
Sec. 1204: A small handful of states may use local tests in lieu of the state exam.
Certain "guardrails“ must be in place:
Tests must be valid and reliable, for all students and for particular subgroups of students.
Test results must be "comparable" across districts, so that a particular score or outcome means the same thing from one district to the next.
By the end of the pilot period, the districts include a representative sample of students from around the state.
These systems have to be able to be scaled statewide, by the end of the pilot period.
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Accountability
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26. State Level Requirements Sec. 1111(c)
States must develop and institute a single, statewide accountability system which:
Includes a minimum number of students for disaggregation by subgroup (“n-size”) that is:
Common across subgroups
Statistically sound
Adopted in collaboration with stakeholders
Sufficient to not reveal any personal identifiable information
Must be based on “challenging State academic standards”
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27. Accountability Sec. 1111(b)-(c)
(NEW) States must develop an accountability system of “Annual Meaningful Differentiation” that rates schools based on metrics including:
Academic Achievement
For all public schools - based on long term goals that measure proficiency on statewide assessments in reading, language arts, math
May also include student growth (for high schools)
Academic Progress
For K-8, growth or other indicator
Graduation Rates
For high schools - May include extended-year adjusted cohort graduation rate
Progress in Achieving English Language Proficiency
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28. Accountability (cont.) Sec. 1111(b)-(c)
School Quality
At least one “valid, reliable, comparable, and Statewide” indicator of school quality, which may include:
Student access to and completion of advanced coursework;
Postsecondary readiness;
School climate and safety;
Student engagement;
Educator engagement; etc.
Other factors as determined by the State
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29. Accountability (cont.) Sec. 1111(b)-(c)
Indicators must:
Be valid, reliable, and comparable across all LEAs in the State
Calculated the same for all schools within the state
Indicators of school quality or student success may vary by grade span
Be used no more than once in the accountability system
Summative score must give more weight to academic indicators and greater weight together then the State’s indicators or indicators of school quality
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Identification
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31. Identification of Schools Sec. 1111(c)(4)(D)
(NEW) Two levels of improvement
Targeted Support and Improvement
Comprehensive Support and Improvement
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32. Targeted Support and Improvement Sec. 1111(d)(2)
(NEW) Any school in which any subgroup is consistently under performing will receive targeted support and improvement.
The State must notify the LEA is any school meets the criteria
The LEA must provide notification to the school re: subgroup(s) identification
Applies to all public schools, not only Title I schools
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33. Continued Support Sec. 1111(d)(3)(A)(II)
(NEW) The State must (cont.):
Establish statewide exit criteria;
For Title I schools identified for targeted support:
If the exit criteria are not satisfied after a number of years (determined by the State), shall result in the identification of the school for comprehensive support.
The State must also periodically review resource allocation and provide technical assistance to LEAs serving significant identified schools
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34. Continued Support (cont.)
What about non-Title I Schools?????
State’s discretion
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35. Targeted Support and Improvement Regulations 200.19
Two categories:
Schools with consistently underperforming subgroups ( )
State definition may include a subgroup of students:
Not on track to meet State’s long-term goals or interim progress;
Performing at the lowest performance level on at least one indicator;
Performing at or below a State-determined threshold compared to avg performance, etc.
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36. Targeted Support (cont.)
Each school with at least one low-performing subgroup ( )
A subgroup that is performing at or below the summative performance of all students in any of the lowest 5% of Title I schools.
If Title I School and no improvement after no more than 3 years) – move to comprehensive support!
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37. Comprehensive Support and Improvement 1111(c)(4)(D)
(NEW) States must establish a methodology for identifying schools for comprehensive support that must include ( ):
At least the lowest performing 5% Title I schools;
All public high schools in the State failing to graduate 1/3 or more of their students; and
Title I schools in which any subgroup, on its own, would be identified as lowest-performing 5% (previously identified for targeted support) and has not improved (as defined by the State), no more than 3 years (per draft regulations) ( ).
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38. Comprehensive Support and Improvement (cont.) 1111(c)(4)(D)
State may add additional state-wide categories
(NEW) The State must use that methodology to conduct an annual evaluation on the performance of LEAs, schools, and subgroups
Applies to all public schools
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39. Comprehensive Support and Improvement Sec. 1111(d)(3)
(NEW) The State must:
Establish statewide exit criteria;
For schools identified for comprehensive support:
If exit criteria is not satisfied after a number of years (not to exceed 4 years) the State must apply more rigorous interventions
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40. District Improvement? Sec. 1111(d)(3)(B)
Maybe.
(NEW) The State may take action to initiate improvement in any LEA with a significant number of schools:
that are consistently identified for comprehensive support that do not meet the exit criteria; or
identified for targeted support and improvement.
What could this include?
Up to the SEA!
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41. Public School Choice Sec. 1111(d)(1)(D)
(NEW) A LEA may provide all students enrolled in an identified school the option to transfer to another public school.
Priority given to lowest-achieving children from low income families.
Remain in that school until he/she has completed the highest grade
LEA must provide sufficient number of options to provide a meaningful choice for parents.
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42. Public School Choice Funding Sec. 1111(d) and 1003A(e)
(NEW) 5% of Title I, A allocation for Public School Choice Transportation OR
(NEW) 1003(A) funds may be used for school choice transportation only if the LEA does not reserve 5% for (d) transportation.
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43. Effect on Other ESSA Programs
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44. Title IV Block Grant Guidance
LEAs must prioritize distribution of funds:
Among those with the greatest needs, as determined by the LEA;
Have the highest numbers of students from low-income families;
Are identified for comprehensive support and improvement;
Are implementing targeted support and improvement plans; or
Are identified as a persistently dangerous public school under section 8532 of ESSA.
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45. 21st Century Community Learning Centers
Sec. 4204(i)(1): States must give priority to applicants proposing to target Students/Families who primarily attend:
Comprehensive or Targeted Support Schools
Schools with students who may be at risk for academic failure, dropping out of school, involvement in criminal or delinquent activities, or who lack strong positive role models.
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Does ED Get a Say?
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47. Title VIII - Secretarial Prohibitions
Strictly prohibits Secretary from doing anything to:
Require/incentivize certain standards or assessments, instructional content, programs of instruction, curricula, etc.
Deny approval of State plans without good reason
Deny approval of waivers without good reason
Set new criteria through regulation or requiring adoption of certain policies in exchange for flexibility or approval of State plans
Specify additional pieces of accountability system
Endorse a specific curriculum or develop a federally sponsored assessment
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48. Secretarial Prohibitions (cont.)
Issue non-regulatory guidance that
provides a “strictly limited or exhaustive list” to illustrate successful implementation, or
that purports to be legally binding
Washington Post quotes anonymous source as saying “under this [law], the Secretary is allowed to go across the street and get a cup of coffee”
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QUESTIONS?
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