Questions about ESSA implementation as it applies to equitable services began surfacing when the U.S. Secretary of Education, Betsy DeVos, issued a letter in early March indicating that the U.S. Department of Education would rescind regulations promulgated during the previous Administration regarding state plans and what was contained in them.  Since that time, Secretary DeVos has issued a series of letters, FAQs, and a template for the state plans.  It is by means of submitting a state plan that states apply for funding under ESSA programs. 

The Office of Non-Public Education clarified this issue on Tuesday, March 15.  In it, ONPE writes: “The disapproval of the regulations does not impact the requirement that States submit State plans.  States may choose to submit plans on either April 3 or September 18, 2017.  Additionally, the dismissal of the regulations does not relieve any State or local educational agency from meeting the statutory obligations contained in the ESEA as amended by ESSA (sections 1117 and 8501) regarding the equitable participation of private school students and teachers in applicable programs to be implemented in the 2017-18 school year.  Thus, the Non-Regulatory Guidance: Fiscal Changes and Equitable Services Requirements under the Elementary and Secondary Education Act (ESEA), as Amended by the Every Student Succeeds Act (ESSA)remains applicable.”

Secretary DeVos writes, “In comparison to the prior template, there has been a significant reduction in the requirements related to supporting excellent educators because the regulations that were repealed by Congress required specific data and information regarding how low-income and minority students in Title I, Part A schools are not served at disproportionate rates by ineffective, out-of-field, and inexperienced teachers.  Because each SEA must only provide the statutory description based on school level data, many of the additional data requirements, are not required, including the requirements to calculate, report, and address differences in the educator equity rates at the student-level.”

A link to the letter and other documents can be found here.

States now have the flexibility to submit a plan on the earlier template or the new template.  They can submit the plan either by April 3 or September 18, 2017. 

The only mention of private schools and equitable services in the new state template is this statement on the signature page: “Consistent with ESEA section 8302(b)(3), the SEAwill meet the requirements of ESEA sections 1117 and 8501 regarding the participation of private school children and teachers.”

Some districts are informing private school officials that they cannot implement the new ESSA provisions for the equitable participation of private school students until a state plan is approved by the U.S. Department of Education.  While we are waiting for word on this issue from the U.S. Department of Education, I would argue that this is not the case.  The state plan contains nothing about the details of providing equitable services.  Nothing in the state plan-whether approved or not yet approved-changes the requirement for provision of equitable services as outlined in ESSA nor how that requirement is carried out.  These are requirements of the law and must be carried out as required in the law.  To not carry out the equitable services requirements because of a change in regulations that have no bearing on equitable participation is in violation ESSA.

What to do if you are faced with this issue in consultation with your district?  Here are some talking points:

  • The law requires the equitable participation of private school students.  There is no provision in the law to revert back to the provisions under NCLB (such as determining the proportional share of funds after public school set asides.
  • The guidance from the U.S. Department of Education is clear as to how to provide equitable services under ESSA and there is no guidance or direction by the U.S. Department of Education that counteracts the direction already provided.
  • There is no section in the state plan where the state provides any description or detail as to how the equitable services will be provided.  There is only an assurance that they will be provided-which is what the LEA must do in a timely manner.
  • If the district does not agree to provide you with equitable services for the start of the 2017-18 school year, you can contact your ombudsman (if one has been hired by your state).  You also have recourse through the complaint process to the state with an appeal to the U.S. Department of Education. 

This implementation issue is extremely important and should not be ignored.  The law allowed a one-year transition period before implementing the new equitable services provisions.  Implementation is set to begin for the 2017-18 school year.  The law is only authorized through 2020-21.  The gains for private school students were hard fought and a true victory for ensuring that funds generated by private school students are used to serve them and for broadening the services available to make sure that these funds are expended in a manner that truly benefits these students.  Let’s make this happen!

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