Every Student Succeeds Act: Improving Upon No Child Left Behind

On January 8, 2002, President George W. Bush signed the No Child Left Behind Act into law.  Intended to replace the Elementary and Secondary Education Act of 1965, No Child Left Behind (“NCLB” for short) was supposed to overhaul educational requirements for schools across the country.  By imposing what some saw as a set of stringent testing requirements, the idea was that NCLB would force educators to perform better, resulting in an improved educational experience for America’s children.

In the years that followed, criticism of NCLB abounded.  Many felt that it focused on preparing students for tests rather than actually teaching them the skills they needed to succeed in the real world.  In addition, it did not make concessions for a number of variables that could change from region to region, instead hoping to impose a one-size-fits-all set of standards for students in spite of the fact that students (and people in general) are anything but one-size-fits all.

Finally, lawmakers heard the critics, and in December of 2015, President Barack Obama signed into law the Every Student Succeeds Act (“ESS” for short).  ESS was intended to keep the parts of NCLB that worked well, while making adjustments to recognize the fact that students are not fungible uniform goods and different student populations will have their own sets of strengths and weaknesses.

This blog will be an exploration of ESS and NCLB.  It will attempt to compare and contrast the two pieces of legislation, noting important differences while highlighting areas that will remain unchanged.  Although a complete exploration of the respective acts would take far more space than is available here, this piece will attempt to highlight the major points.


Differences in Testing Requirements

NCLB mandated that schools test students on the subjects of math and English on a yearly basis, beginning from when the students were in third grade and running through to the student’s eighth grade year.  After that, a student was tested in these subjects a final time when he or she was in high school.  In addition, NCLB required that each student be tested over the subject of science three times: once in elementary school, once in middle school, and once in high school.

ESS retains the requirement that students be tested in the same grades that were required to be tested under NCLB; however, it allows school administrators more leeway in determining when and how the tests will be administered.  Further, it allows schools to elect to administer a number of smaller tests rather than one large test.  This approach recognizes that different students may learn (and perform on tests) differently, and allows school administrators the flexibility to select the option that best fits their own students.


A Softer Approach to Standardized Testing

On a somewhat related note to the above point, ESS aims to soften the requirements of standardized tests administered to students.  NCLB approached standardized testing from the viewpoint that every student should be able to demonstrate progress on the same exam, regardless of any special circumstances that child may have been in.

This meant that, under NCLB, even students with emotional or mental disabilities were held to the same academic standards that were used on children without those special circumstances.  This absurd practice led to a great deal of frustration on the parts of parents and educators alike: critics of NCLB can point to numerous tales of clearly disabled students being forced to take the same tests that other students did, with disastrous results.  Further, because NCLB placed such a heavy emphasis on standardized tests—and did little to provide a method of ameliorating the requirements for those outlier cases such as disabled students—it drove a significant number of teachers and administrators to leave the education field altogether.

Proponents of ESS are quick to point out that by easing the standardized testing requirements, and allowing states more leeway in crafting their own remedies for underperforming institutions, the legislation will have the added benefit of giving educators more autonomy than they had under NCLB.  This will, hopefully, reduce the exodus of qualified professionals from the educational field and may even entice some who have already left to return.

Further, with regard to the standards by which students are measured, ESS changes the stance from the standards being uniform across the board to allowing states a mechanism for addressing clearly disabled students.  ESS gives schools the ability to develop a set of alternate standards for use by those students who are cognitively disabled.  These alternate standards must be developed pursuant to a process that involves a documented process to ensure that they adequately reflect the abilities of cognitively impaired students.


Changes in the Accountability of the Individual States

NCLB was, at least in the eyes of some critics, somewhat draconian in its approach to accountability.  It mandated that all schools had to improve the performance of all their students.  To provide a means of measuring this improvement (or lack thereof) NCLB forced schools to create various measuring devices for minority and other subgroups in order to measure their performance.

This proved to be quite onerous, and some school administrators eventually resorted to tactics such as creating a subgroup that evaluated large swathes of underprivileged students together, or by adopting incredibly subjective methods of measurement such as assessing the parental involvement in a student’s learning.  Essentially, critics of NCLB felt that it was creating an unrealistic goal that did nothing more than force educators to jump through more hoops.

ESS changed the approach towards accountability.  While there are some very broad guidelines that remain to act as “guardrails,” states are now given much more latitude in determining how they will be held accountable.  While ESSA does set out some items that a given state’s accountability goals must include, it leaves the method of establishing those goals largely up to the state.  Finally, ESSA reduces the use of subjective measures of progress, noting that test scores and other objective measures (such as the graduation rate of a school’s student body) must be given more weight than the more subjective measures.


Changes in the Ways that Educational Standards are Developed

NCLB took a hard line when it came to developing the educational standards by which students were judged.  States were forced to comply with standards that they frequently had little, if any, input in developing.  What’s more, these standards were frequently developed without taking into consideration the variations in aptitude and abilities that naturally occur in student populations.

In contrast, ESS simply requires that states come up with challenging standards, but these standards are to be created with a view towards the entry requirements of each state’s universities and technical schools.  Further, in what many educators view to be a great step forward, ESS specifically prohibits the Secretary of Education—a federal position—from mandating that a given state adopt a specific standard for its educational programs.

The aim of the change is to put more power when it comes to the promulgation of educational standards squarely in the hands of the states.  This will, hopefully, lessen the “one-size-fits-all” impact that NCLB had by recognizing that a given state may have a student population that varies in ability and proficiency from a different state.



Changes in the Remedies for Schools that Consistently Underperform

Under NCLB, schools that did not meet their goals of improving test scores were subject to drastic measures if the states in which they were located wanted to continue receiving federal dollars for education.  At first, a school would be the subject of relatively gentle reminders and encouragements to increase the improvement rates on its test scores.  However, if the school did not begin to meet the standards for improvement within five years, much more drastic measures were taken.

Among the choices faced by a school in such a position were a number of unpalatable options, such as:

  • Fire its principal and a significant portion of the staff;
  • Take steps to convert from its current status to a charter school;
  • Force students to remain in school longer, either by lengthening the school day or increasing the number of days per year that school was in session; or
  • Simply close the school.

States with schools that fell into the category of being unable to meet their goals for more than five years were faced with dire choices if they wanted to keep their federal funding for education.  Lost in the shuffle, of course, were the students themselves, and critics of NCLB were quick to point out that sometimes these corrective measures would only result in underperforming students being shuffled to other schools, where the cycle would frequently begin again.

ESS aims to change the remedies used for schools that do not meet their standards.  For one thing, the classifications of what constitutes dissatisfactory performance for a school has been greatly narrowed.  Under ESS, schools are subject to remedial action if:

  • They rank at the bottom 5% when student assessment scores are considered (it is worth noting, however, that ESS gives each state the leeway to set its own standards determining how students should score on the assessments—NCLB did not permit this flexibility);
  • They are high schools that consistently fail to graduate more than two-thirds of their students;
  • Schools where specific groups of students consistently perform at a lower level than they should (although again, ESS allows the individual states to determine, within reason, what constitutes underperformance).

Under ESS, if a school is classified as one that needs remedial action, that school can be subjected to intervention by the state.  However, in contrast to NCLB—where the remedial steps were written into the law—ESS does not specify what a state must do with an underperforming school.  This gives states the flexibility to craft solutions that are both more creative and less rigid than those set out under NCLB.


Federal Spending on Education is Largely Unchanged

Although ESS and NCLB vary on a number of points, the federal dollars earmarked for education are roughly the same between the two pieces of legislation.  Although NCLB gave lawmakers the ability to spend as much as $32 billion on education annually, Congress never approached this ceiling: in 2015 federal education spending was set at $23 billion.

ESS gives lawmakers the ability to spend as much as $24.9 billion in 2016.  Assuming for the sake of argument that the federal government actually spends that much (as opposed to continuing its pattern of spending less than it is authorized to), this would represent an increase of slightly more than 8.26% from 2015.  While this is certainly better than cutting educational spending, it is not an overly significant increase.


Changes in the Standardized Testing Participation Requirements

NCLB was predicated upon the idea that students should show progress on a series of standardized tests.  As such, participation in these standardized tests was of utmost importance.  To this end, NCLB required that no less than 95% of students in a given state take the standardized tests.

ESS continues the 95% threshold requirement; however, it makes a significant change in order to increase the flexibility offered to the various states.   It gives states the power to create their own laws governing the circumstances under which a student may opt-out of testing.  Further, it implements a requirement that parents of students be notified of their rights in regard to participation in the assessment tests.

In addition, ESS leaves the consequence for inadequate participation in the hands of the states instead of imposing specific consequences and remedial actions at the federal government level.  By putting the ability to craft remedial steps back into the hands of the states, ESS gives states more flexibility to create solutions that work best for their own populations, rather than imposing a predetermined response at the federal level.


Changes in Requirements for Teachers

NCLB implemented a requirement that 100% of teachers in predefined core academic subjects had to be “highly qualified” for their jobs.  The “highly qualified” requirement included a mandate that every teacher have a bachelor’s degree and either demonstrate knowledge of their teaching area (in the case of existing teachers) or pass a subject-matter test in their teaching area (in the case of new teachers).

While these requirements doubtless seemed to be a good idea at the time they were included in the legislation, they completely stripped the states of the ability to recognize that some very excellent teachers may not have completed the requirements for a bachelor’s degree.  Likewise, these requirements neglected to address the fact that some teachers may have gained extensive knowledge of a subject through means other than the traditional system of a college education.

Whatever the reasoning behind these requirements, ESS implements changes allow schools to retain teachers who may be experts in their fields but who never got a college degree.  It begins by eliminating the requirement that teachers be “highly qualified” (which is another way of saying they must, among other things, hold a bachelor’s degree).

Instead of requiring that teachers meet the rigid requirements set out by NCLB, ESS instead requires that each state require its teachers to meet certain certification and licensing requirements.  This allows a great deal of latitude in the hiring and retention of teachers who are experts in their respective fields, but who may have obtained their expertise through other than traditional means.


Increased Access to Professional Development for Teachers

NCLB mandated that states provide professional development opportunities for teachers who taught the core subjects.  In contrast, ESS broadens the availability of professional development: teachers of the core subjects are still given access to development opportunities; however, in addition, teachers of all subjects are now given the opportunity to participate in professional development activities.

ESS does not just stop by giving teachers wider access to professional development, either.  The new rules specify that other school staff such as administrators are now provided with the opportunity to access professional development resources.



While NCLB doubtlessly was created with nothing but the best of intentions, history has demonstrated again and again that good intentions can frequently give rise to bad outcomes.  Such was the story with NCLB: the requirements were overly rigid, did not take variations in student populations into consideration, and imposed requirements (and consequences) that many critics rightfully felt were too harsh.

ESS attempts to restore to states the ability to direct and shape their own educational systems, within reason.  By acknowledging that one-size-fits-all education cannot work in a world where people are anything but, ESS will have the impact of ensuring good education is available to students from all walks of life while recognizing that life is not uniform and standardized, and thus neither can we expect students to be.

While it retains some of the better provisions of NCLB, ESS represents a revolutionary approach to the interaction between federal education funding and state educational administration.  With the passage of this legislation, the future of America’s students is very bright indeed.


2017-02-07T20:27:34+00:00 February 7th, 2017|News, Special Ed Law|