top of page


Every Student Succeeds Act

Navigation Menu to Learn More About ESSA (click to jump to section)

What is ESSA?

ESSA is an abbreviation of the “Every Student Succeeds Act,” one of the nation’s major federal education laws.  ESSA, NCLB, and ESEA all refer to the same law.

The Elementary and Secondary Education Act (ESEA) was established in 1965 as a component of president Lyndon Johnson’s “War on Poverty” legislative program. More than 40 years later, ESEA remains the nation’s most important federal education law, and the single largest source of federal aid to K-12 schools nationwide.


In December, 2015 the U.S. Congress reauthorized ESEA as the “Every Student Succeeds Act.”  Whenever ESEA is reauthorized, which means that it is rewritten and re-enacted in its new form – it receives a new “nickname.”  When ESEA was reauthorized in 2001, it was called the “No Child Left Behind” act (NCLB).

What is ESSA?
How is ESSA Organized & Funded

How ESSA is Organized and Funded

How is ESSA organized?


ESSA is organized into ten major divisions called “Titles.” Click on the titles below to learn more about them. 

Title I:       Improving Basic Programs Operated by State and Local Educational Agencies
Title II:     Preparing, Training, and Recruiting High-Quality Teachers, Principals, or Other School   Leaders
Title III:    Language Instruction for English Learners and Immigrant Students
Title IV:    21st Century Schools
Title V:      State Innovation and Local Flexibility
Title VI:    Indian, Native Hawaiian, and Alaskan Native Education
Title VII:   Impact Aid
Title VIII:  General Provisions
Title IX:     Education for the Homeless and Other Laws

Some titles are divided into parts, which denote different programs.  All titles are divided into sections, and subsections, which are often further divided.  Thus, the specific portion of ESSA that establishes a state-level ombudsman responsible for monitoring and enforcing various provisions of Title I relating to private school students is found in Title I, Part A, Section 1117(a)(3)(B) – where “(a)(3)(B)” denotes various subsections.  Most citations of this specific portion of the law would simply be written as follows: ESSA §1117(a)(3)(B). Think of titles, parts, sections, and subsections as you would a file cabinet with drawers, dividers, folders, and individual documents.

How is ESSA funded?

Once the reauthorized legislation has been passed by Congress and signed into law by the President, Congress must approve accompanying appropriations legislation that commits actual dollars to the programs contained in the law. Congress could conceivably appropriate no money for a program that has been (re)authorized, or it could fund a program to its full authorization limit, or appropriate a lesser amount of funding.

The reauthorization and appropriations process often involves a complex series of political negotiations between the Executive and Legislative Branches of government and between Democratic and Republican members of Congress. The President’s veto power assures that the Executive Branch’s education proposals will receive serious consideration by members of congress.

ESSA and Private Schools

ESSA and Private Schools

The “Child Benefit Theory”

From its inception in 1965, the Elementary and Secondary Education Act has made various forms of assistance available to children enrolled in America’s private schools.  To uphold the integrity of constitutional church-state separation protections, the benefits offered by ESEA/ESSA are provided in a manner that assures that they accrue to children, rather than private schools, per se, and that the services are of a secular, neutral, and non-ideological nature.  In short, the assistance provided by ESSA is intended to help kids, not schools.

Private Schools Don’t Receive Government Funding

The U.S. Department of Education does not regard private schools whose students and educators participate in one or more ESSA programs to be recipients of federal financial assistance.  That is because in almost every instance the funds that pay for the services in question remain under the stewardship of a public entity – generally a public school district, or state department of education.  These units of government either provide the services received by private school students and educators, directly, or contract with third-party providers to furnish the services.  Third-party providers are often recommended by private school officials.

Must Private Schools Participate?

No.  Participation in ESSA programs is purely voluntary.  No private school is required to participate, and there are no penalties for declining to do so.  However, before saying “No thank you!” it’s a good idea to learn about the programs and services that are available, as well as the accompanying procedures established by ESSA to ensure the best possible fit between the particular needs of a private school’s students and educators, and the federally funded services to be offered.  That end is accomplished through the process of consultation.

Consultation under ESSA

Consultation Under ESSA

What is ESSA consultation?

Although private schools are free to decline, the law requires public school districts to reach out to officials of every nonprofit private school located within their boundaries to explain the programs and services made available through ESSA, and to invite the participation of private school students and educators.  Consultation is the process by which district (or state-level) staff and private school officials discuss and define how private school students and educators will participate in ESSA programs.  

If private school officials decide that their students and educators will participate in ESSA programs, consultation becomes an ongoing process that continues throughout the implementation and assessment of the services provided.

It is hard to overestimate the importance of  consultation.  Without it, private school leaders may not gain awareness of the range of federally funded programs and services that are available to their students and teachers, nor will they know how much money is available for each program.  When consultation is provided in a timely and meaningful manner, available resources can be used in a planned manner and to maximum benefit.


What should consultation include?

One important new feature of ESSA is that the statute says that public 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…” (ESSA §1117(b)(1) and §8501(c)(1)).  When discussions focus on Title I services, the law requires the results of whatever agreement is reached to be transmitted to the ombudsman to be designated by the California Department of Education.  This is another new and significant provision of ESSA that will be of assistance if, at a later date, the parties to a particular consultation should hold differing views about what was agreed to.

ESSA says that consultation should lead to the goal of reaching mutual agreement on issues such as:

  • how student’s needs will be identified;

  • what services will be offered;

  • how, where, and by whom the services will be provided;

  • how the services will be assessed, and how the results of the assessment will be used to improve services;

  • the size and scope of the equitable services to be provided, the amount of funds available for services, and how that amount was determined;

  • how and when a public school district (or other entity) will make decisions about the delivery of services, including a thorough consideration and analysis of the views of private school officials on the provision of services through potential third-party providers; and,

  • whether to provide services by pooling funds so as to serve children from various school groupings. (ESSA §1117(b) and §8501(c))


A few things to consider…

1.  Timing

The statute tells us that consultation should lead to agreement about how, where, and by whom the federally funded services will be provided, but – with the exception of Title I – it doesn’t say when.  Don’t be discouraged.  Just because the statutory language fails to mention “when” doesn’t, and shouldn’t prevent private school officials from making their views known, and attempting to reach agreement about timing.  Here, advance planning is critical, and consultation should be initiated well in advance of a coming school year.

The law does, however, make it clear that consultation regarding all relevant programs, “…shall occur before the local educational agency makes any decision that affects the opportunities of eligible private school children to participate.”  (ESSA §1117(b)(3) and §8501(c)(3))

2.  Assessment

Don’t be frightened by the appearance of the word ‘assessment’ in the statutory language addressing consultation.  Whereas regulations and guidance have yet to be issued (see sidebar on right), precedent has established that private school students who are recipients of ESEA services are not required to participate in state assessments.  The purpose of the assessments in question is to help evaluate and fine tune the nature of the ESSA services provided.  Chances are that whatever form(s) of evaluation your private school is already using – including, but not limited to teacher observations, teacher-constructed tests, journals, student’s work and other forms of “authentic assessment,” and school-selected standardized achievement tests – will prove sufficient to furnish such information.

3.  Money

Knowing how much money is available to pay for desired ESSA services is essential to thoughtful planning, and public school officials are required to make this information available during the process of consultation.  A common problem faced by private school officials wishing to kick off consultation in a timely manner is that they are told by their public school district colleagues that the district is not in possession of “hard numbers.”

ESSA contains a new provision that should help to address this issue.  Beginning in school year 2017-18, the California Department of Education must provide private school officials with timely notification of the amount of funding available in each district to provide services to private school students and/or educators under each of the relevant ESSA programs.  (ESSA §1117(a)(4)(C) and §8505(a)(4)(C))  This means that the CDE will be responsible for acquiring the dollar figures at a sufficiently early date to make the availability of the information “timely.”  Exactly how this will be accomplished will prove to be one of several implementation challenges faced by states and local school districts.

4.  Pooling Funds

Like NCLB, ESSA contains provisions that permit certain groups of schools to pool their respective proportionate share of funds if they so choose.  (ESSA §1117(b)(1)(J)(i) and §8501(c)(1)(H)(i))  As an example of how such an allowance might be used, all Catholic diocesan schools enrolling students who receive Title I services and reside within the same Title I participation area may wish to pool their Title I funds to secure uniform services from a third-party provider.  Another example might consist of various private and independent schools situated within the same public school district deciding to pool Title II, Part A funds in order to secure professional development lectures delivered by a renowned presenter.

5.  Written Affirmation

At the conclusion of a consultative meeting, private school officials will be handed a form which they will be asked to date and sign.  The law requires LEAs to document in writing that meaningful consultation has occurred, and to transmit the written affirmations to state departments of education.

If a private school official doesn’t believe the consultation to have been meaningful, he/she should not agree to sign the affirmation.  For example, if a district only invites private school educators participation in Title II, Part A professional development programs and activities developed for its public school teachers and/or principals, and refuses to create additional programs tailored to the particular needs of private schools, that’s not meaningful consultation.  The same will be true if a district fails to follow the new statutory requirements governing the manner in which the proportionate share of funding for private school students and educators is calculated for the 2017-18 school year.

When ESSA’s new provisions go into effect (in 2017-18), the affirmation form will be required to “…provide the option for private school officials to indicate such officials’ belief that timely and meaningful consultation has not occurred or that the program design is not equitable with respect to eligible private school children.” (ESSA §1117(b)(5) and §8501(c)(5))

6.  Complaints

ESSA establishes the right of a private school official to file a complaint with the California Department of Education if the official believes:

        - that consultation was not timely and meaningful; or,

        - that due consideration of his/her views was not given by the public school district; or,

        - that the public school district made a decision that failed to treat the private school or its students equitably


Under new provisions of ESSA, state departments of education must provide services (in lieu of local school districts), either directly, or through third-party providers if both of the following conditions are met:

  1. private school officials have requested  such services directly; and,

  2. private school officials have “demonstrated that the local educational agency involved has not met the requirements of this section in accordance with the procedures for making such a request, as prescribed by the State educational agency.”


The second condition is confusing, and provides an excellent example of statutory language that is likely to be clarified through regulations and guidance.

The most up-to-date guidance on ESSA can be found here.

bottom of page