ESSA Consultation

ESSA: A Starter Kit for Private School Educators

Introduction| What is ESEA? | ESSA & Private Schools | Consultation | The Titles

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.  Consultation1

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))

ConsiderA 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.  MoneyAppleDollar

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.

Share4.  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.  ComplaintsDisagreement

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.


Next: The Titles

Click on a section to go there

What is ESSA?
ESSA & Private Schools
Title I:       Improving Basic Programs
Title II:      Professional Development
Title III:     Language Instruction
Title IV:     21st Century Schools
Title V:      Innovation & Local Flexibility
Title VIII:  General Provisions
Title IX:     The Homeless & Other Laws





Most ESSA provisions will not go into effect until the beginning of the 2017-18 school year.  However, in order for consultation to be timely, as required by ESSA Sections 1117(b)(3) and 8501(c)(3), it must take place “…before the local educational agency makes any decision that affects the opportunities of eligible private school children to participate” in the relevant programs.  (Note: a public school district is a “local educational agency,” often abbreviated as “LEA.”)

Thus, when you engage in consultation with representatives of the public school district in which your private school is located, even though the consultation is taking place during the course of the 2016-17 school year, you will be planning for the following year – the year that ESSA’s new provisions take effect.

Be proactive…

If you don’t hear from your local public school district, don’t be shy!  Pick up the phone, call your district office, and ask to speak with the person responsible for overseeing private school participation in federally funded programs.  Introduce yourself, and let your colleague know that you are interested in learning about opportunities for participation in  relevant ESSA programs.

…and considerate!

It is essential to establish and maintain a positive, cordial and collegial relationship with the public school district personnel with whom you will be working.  Keep in mind that, like you, they have a heavy workload (to which you are adding one more thing to do).  Some staff in smaller school districts may know little more about ESSA than you.  Be patient, be personable, and make sure your counterpart knows that you are aware that the programs and services in question are intended to help kids, regardless of where they happen to go to school.

Make sure your school has a current PSA on file!

If your school fails to file the annual private school affidavit (PSA) required by Section 33190 of the California Education Code, your students and educators will be ineligible to participate in ESSA programs.  For one, the affidavit lets the state know that your school exists, and provides the contact information used by local public school district personnel to invite participation in consultation.  Additionally, the PSA contains enrollment data that is used to determine the amount funding to be made available through various formula grants.  The official window for filing the private school affidavit is October 1-15, annually.

Statute – Regulations – Guidance

In the course of time, you will hear references to statutory language, regulations (or “regs,” for short), and guidance.  Each has an important role to play in establishing and implementing the law, and it’s helpful to understand what each of the terms means.

The ESSA statute is the actual text of the law, as enacted by Congress and signed by the President.

Regulations frame the statute in outline form, and provide a more practical guide for implementation.  There are a couple of important facts to bear in mind about regulations.  First, regulations expand upon the actual statutory text in attempt to flesh out the intention of the law.  For example, the statute states that the results of the agreement reached through the process of Title I consultation “shall be transmitted to the ombudsman.”  The statutory text fails to specify whether the transmission can be accomplished orally, say, through a telephone call, or if the information must be conveyed in writing.  This is a question we might expect to be clarified in forthcoming regulations.Regulations

Second, regulations are not enacted by Congress, but are established through a rule making process administered by an agency of government – in this instance, the U.S. Department of Education.  (Indeed, regulations comprise a set of rules for implementing the law.)  Before regulations are finalized, the overseeing agency provides notification of proposed rule making, and invites comment on the proposed regulations from stakeholder groups, and the public-at-large.  The agency then organizes, reviews and considers the suggestions, and makes modifications as it deems appropriate before issuing final regulations.  Even though regulations are not enacted by Congress, they carry the weight of law.

Guidance consists compilations of questions and answers designed to address various issues that arise during the course of the implementation of the law, and which require clarification beyond the law’s accompanying regulations.  As a hypothetical example, assume that a year from now a private school principal sends an email to the U.S. Department of Education in which she says the following: “ESSA regulations have made it clear that the results of the agreement reached through Title I consultation must be transmitted to the ombudsman in writing, but fail to address the issue of when the results must be conveyed.”  By way of response, the USDE might suggest some sort of timeline, or “window” in the form of a response to this, and other questions relating to consultation, packaged together in a guidance document.

Guidance doesn’t carry the weight of law, for which reason it is official known as non-regulatory guidance.  Even so, guidance is usually viewed as if it carried the weight of law.  After all, in the instance of ESSA, the U.S. Department of Education will be telling us how its attorneys believe the spirit and intent of the statue and regulations is to be fulfilled.