The All-Important Ombudsman

Although the Every Student Succeeds Act (ESSA) was signed into law nearly half a year ago, many of its key provisions won’t take effect until August, 2017.  For private school students and educators, the most important feature of the updated federal education law may well come in the form of a newly created position established for the specific purpose of seeing that intended private school beneficiaries get a fair shake.

Section 1117(a)(3)(B) of ESSA, which is specific to Title I, reads as follows:

OMBUDSMAN- To help ensure such equity for such private school children, teachers,
and other educational personnel, the State educational agency involved shall
designate an ombudsman to monitor and enforce the requirements of this part.

The ombudsman’s purview will not be limited to Title I, as ESSA Section 8501(a)(3)(B) makes clear:

OMBUDSMAN- To help ensure equitable services are provided to private school children,
teachers, and other educational personnel under this section, the State educational
agency involved shall direct the ombudsman designated by the agency under section 1117
to monitor and enforce requirements of this section. 

The above section applies to programs such as Title II, Part A (professional development), Title III, Part A (English learners), Title IV, Part A (Student Support and Academic Enrichment Grants), and more.

A conflation of the two cited sections of the statute makes it clear that state departments of education are to designate one person to fulfill the ombudsman’s obligations for all of the relevant programs.  Moreover, that statutory language vests the ombudsman with the authority to “monitor and enforce” the relevant portions of the law.

om·buds·man

an official appointed to investigate individuals’ complaints
against maladministration, especially that of public authorities.

It is difficult to overestimate the significance of such an investment of authority.  As just about anyone who has ever attempted to enlist the assistance of government agency to solve a problem is aware, the most difficult part of the process almost always consists of finding the individual who is willing and able to utter the three golden words: I am responsible.  Locate that person, and chances are good you will solve your problem. By identifying the individual who possesses enforcement authority over the portions of ESSA that accord equitable participation opportunities to private school students and educators, the ombudsman provision of the new law is gold.

The ombudsman’s job will not be easy.  Consider the Title I consultative requirements found in ESSA Section 1117(b)(1):

IN GENERAL- To ensure timely and meaningful consultation, a local educational agency
shall consult with appropriate private school officials during the design and development
of such agency’s programs under this part. Such agency and private school officials shall
both have the goal of reaching agreement on how to provide equitable and effective
programs for eligible private school children, the results of which agreement shall be
transmitted to the ombudsmen designated under subsection (a)(3)(B).

Under ESSA’s new provisions, the agreements reached between private school officials and public school district staff must be memorialized in writing by district staff and conveyed to the ombudsman.  If so little as a single Title I consultation takes place in half of California’s public school districts, the ombudsman will receive some 500 documents he/she is to “monitor and enforce.”

That’s not all.  Not by a long shot.  The ESSA statutes governing both Title I and the other title programs mentioned above contain the following requirement:

NOTICE OF ALLOCATION- Each State educational agency shall provide notice in a timely
manner to the appropriate private school officials in the State of the allocation of funds for
educational services and other benefits under this subpart that the local educational agencies
have determined are available for eligible private school children.

What this means is that the California Department of Education must obtain from hundreds of public school districts showing how much money will be available to provide equitable services to private school students and educators for each relevant ESSA program, and must then supply this information to appropriate private school officials in every participating school.  Since the ombudsman is vested with the authority to enforce this requirement, he/she will be carrying a very heavy load.  And remember: the provision of such information must be completed in a timely manner.

What does all of this mean for the private school community?  I think there are at least three current takeaways:

1)  There are many questions about the role of the ESSA ombudsman that are in need of clarification via federal regulations and non-regulatory guidance.  Not the least of these concerns fleshing out the scope of authority vested in the position and providing practical examples of how an ombudsman is to monitor and enforce the relevant portions of the law.  Such clarification must be provided at the earliest possible date.

2)  State departments of education must designate persons with appropriate qualifications to serve as ESSA ombudsmen. An ombudsman should be familiar with the culture of both private and public K-12 education, and should be comfortable working in, and across both environments. An ombudsman should also be a problem-solver, a capable mediator skilled at building trust and collaboration and, when necessary, an effective practitioner of conflict resolution.  Because it is unlikely that an ombudsman will be able to accomplish all the requirements of his/her job on his/her own, state departments of education must also determine how best to provide adequate and appropriate support for the position.  Funding for the position should be charged against general administrative expenses and not drawn from program funds.

3)  State Departments of Education must not wait until July 31, 2017 before designating an ombudsman.  To do so would signal bad faith. Neither should state departments wait for the issuance of regulations or non-regulatory guidance specific to the responsibilities of the position (if none should be forthcoming at an early date) before designating an ombudsman.  Indeed, it is likely that one of the ombudsman’s key early roles will consist of identifying issues in need of clarification relative to his/her own position and scope of authority, and pressing the U.S. Department of Education to respond.

This is a front-burner issue for the nation’s private school community.  The Council for American Private Education, its State-CAPE Network, and affiliated organizations are working together and reaching out to state departments of education in a coordinated effort to both create a high profile for the ESSA ombudsman position, as well as to address its content. This is our high-stakes ESSA project.  At long last, the statute provides for an individual at the state level who will be responsible for enforcing the timely and meaningful consultation and equitable participation requirements of the federal education law.  It’s now up to us to make the most of this watershed moment.

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