Every Student Succeeds Act

Final ESSA Rules Flesh Out Accountability, Testing Details

By Alyson Klein — December 13, 2016 6 min read
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Before leaving office next month, the Obama administration is finishing up rules for the Every Student Succeeds Act, including in the areas of accountability and testing.

The administration released final regulations for accountability on Nov. 28 that seek to address state and school officials’ biggest criticisms with draft regulations, released in May, which drew more than 20,000 comments from educators, advocates, and the general public.

These regulations give states more time to get their systems in place before identifying schools that are struggling, and offer more flexibility for states when it comes to school ratings, and dealing with schools with high testing opt-out rates.

By contrast, the department didn’t make major changes to its testing regulations, which were released Dec. 7. The draft version of those regulations was largely crafted earlier this year by a panel of educators and advocates through a process known as “negotiated rulemaking.” The department also released regulations for innovative tests under ESSA.

It’s unclear whether the incoming Trump administration and Congress will decide to keep these regulations on the books, make changes to them, or move to get rid of them entirely.

Accountability Regulations School Ratings

What ESSA Says: States must have an accountability system that includes both academic factors (like test scores, graduation rates, and English-language proficiency) and at least one school quality or student success indicator (like school climate, access to advanced coursework, or chronic absenteeism). They must identify schools for “comprehensive improvement” (lowest-performing schools and those where less than two-thirds of students graduate) and “targeted improvement” (schools that might be doing well overall, but where subgroups of students are struggling).

What the Final Regulations Say: States can use the ratings in ESSA—including “comprehensive” improvement and “targeted” support—as their summative ratings. They don’t have to go as far as an overall number or A through F grade, unless they want to. States also can use a “dashboard” to explain how schools are doing on each of the different indicators that make up their accountability systems.

School Quality Indicators

What ESSA Says: In addition to test scores, graduation rates, and English-language proficiency, states have to hold schools accountable for another factor that gets at school quality or students’ opportunity to learn, including school climate, access to advanced coursework, access to arts,or absenteeism, among others.

What the Final Regulations Say: States can pick any factor that research has shown has a positive impact on student learning, as defined by a host of things like grades, credit accumulation, postsecondary enrollment, persistence, and performance in advanced classes.

Student Groups

What ESSA Says: States get to set their own minimum “n-size.” That’s a technical term for the number of students from a particular group that a school must have in order to be held accountable for their performance. For instance, if a state’s n-size is 20 and a school has only 17 4th graders in special education, that school wouldn’t have to include those students’ scores for accountability or report their data because the sample size is too small.

What the Final Regulations Say: States can use any n-size they want, but those that want to go over 30 have to show the impact of that decision, giving data on the percentage of schools that would be held accountable for subgroup performance under whatever number they want to use, versus the percentage that would have been held accountable for subgroup performance if the n-size were 30.

Identifying Schools With Consistently Underperforming Subgroups

What ESSA Says: States have to identify schools where subgroups of students (such as English-language learners or students in special education) are “consistently underperforming” compared to their peers.

What the Final Regulations Say: States are still supposed to base their definition of “consistent underperformance” on no more than two years of performance, but if they really want to look over a longer time frame, they can, as long as they can explain how more time will help students in a subgroup get the support they need.

Testing Participation Rate/Opt-Outs

What ESSA Says: Schools need to test 95 percent of their students, both for the whole school and for different subgroups of students, just as they did under the No Child Left Behind Act, which ESSA replaced. If a school doesn’t hit that threshold, the state gets to decide what happens, not the U.S. Department of Education.

What the Final Regulations Say: States that come up with their own system for dealing with opt-outs get the leeway to develop different remedies to address different degrees of low-test participation. That means states can propose to do something less dramatic for a school that barely missed the 95 percent for a single subgroup of students, as opposed to a school where say, just 10 percent of students took the test. Whatever the state comes up with, though, has to be “sufficiently rigorous” to fix the school’s participation problem.

English-Language Proficiency

What ESSA Says: States need to hold schools accountable for helping English-language learners become proficient.

What the Final Regulations Say: States have to come up with a “research-based” maximum timeline for ELLs to become proficient in English. The idea is to encourage schools to make sufficient progress each year in helping ELLs master their new language.


What ESSA Says: The new law, which passed in December of 2015, is supposed to go into effect in the 2017-18 school year. The 2016-17 school year is for transition and planning.

What the Final Regulations Say: States essentially get a one-year extension on identifying key groups of schools for extra attention and support. They are now supposed to identify their lowest-performing schools and schools with really low graduation rates (those in “comprehensive improvement”) in the 2018-19 school year. Also in 2018-19, they must identify schools with low-performing subgroups for so-called “targeted” support. But states now have until the 2019-20 school year to identify schools where subgroups of students are “consistently underperforming” compared to their peers for “targeted support.” State accountability plans now are due April 3 or Sept. 18.

Testing Regulations General Assessment Regulations

What ESSA Says: States must test students in reading and math every year between 3 and 8 and once in high school, just like under the No Child Left Behind Act. Districts may choose a nationally recognized test, such as the SAT or ACT, in lieu of the state’s high school test for accountability purposes, as long as they have the state’s permission. There are also special rules pertaining to tests for English-language learners and students in special education. For instance, no more than 1 percent of students in a particular state should be given tests for students with severe cognitive disabilities, unless there is a waiver from the department.

What the Final Regulations Say: The regulations seek to flesh out these provisions, for instance by defining what kinds of assessments would be considered “nationally recognized.” They also call on states to come up with a definition of “severe cognitive disabilities,” and they explain how states must go about applying for a waiver from the 1 percent cap.

Innovative Assessment Pilot

What ESSA Says: Up to seven states can apply to try out new forms of testing—such as performance tasks—in a handful of districts before taking them statewide. States must make sure these new kinds of tests provide comparable results to the state assessment. And, as they are piloting these new approaches, states must include a representative sample of English-language learners and students in special education.

What the Final Regulations Say: The regulations spell out how states can make sure that these tests are comparable to the state assessment and among districts.

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Source: U.S. Department of Education
A version of this article appeared in the December 14, 2016 edition of Education Week as Final ESSA Rules Flesh Out Details on School Accountability, Testing


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