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Every Student Succeeds Act (ESSA): Know Your Rights

The Every Student Succeeds Act (ESSA) was signed into law in December 2015, replacing the No Child Left Behind Act (2002) and serving as the latest iteration of the Elementary and Secondary Education Act (1965), which makes federal aid available for the benefit of students in need, whether in public or private school.

Following are some of the key changes contained in ESSA for private school students and teachers. For a more complete breakdown, click here. Please don’t hesitate to call us with any questions.


ESSA requires that each state appoint an “Ombudsman” to ensure that private school students receive equitable services under the law. ESSA directs the Ombudsman to “monitor and enforce” its equitable service provisions. Nebraska’s Ombudsman is Diane Stuehmer, who can be reached at 402-471-1740, and She serves as a resource for further information on ESSA and as the point person for resolving local disagreements.


Reaching Agreement:

Consultations must now have the goal of “reaching agreement.” The U.S. Department of Education has issued non-regulatory guidance further defining that phrase (See Section N-13). Note especially the requirement that the views of private school representatives be “be seriously considered,” and that the resulting equitable services “meet the needs of eligible students and teachers.”

New Topics:

Consultations must now include a discussion of the following topics:

  • How the proportion of funds is determined (including the low-income student populations used in the calculations).
  • **Please request that the district provide you this information, including the district’s total Title I-A allocation, the proportions of low-income students used in their calculations, and whether any funds were set aside prior to determining private-school students’ proportionate share. 
  • Whether the district will use a separate entity or organization to provide equitable services.
  • For consultations on Title I-A services, whether to coordinate funds available in Title I-C, Title II-A, Title III-A, Titles IV-A and -B to meet the needs of Title I students.

Written Disagreement:

For Title I-A services, public schools must provide a written explanation whenever they disagree with private school suggestions or requests regarding any topic of consultation (including during the implementation and assessment stage).


Title I-A:

The proportionate share for private school students must now be calculated before local public school districts make any allowable transfers or expenditures of their Title I-A funds. The No Child Left Behind Act had required that school districts “set aside” certain amounts of Title I funds to better serve “Needs Improvement” public school students, prior to calculating private school students’ proportionate shares. ESSA now forbids such a priori local set-asides.

Unfortunately, however, ESSA also requires the State to set aside 7 percent of its Title I funds for “school improvement” before making final allocations to a local district. This is a significant change from the previous limit of 4 percent. Further, a “hold harmless” provision intended to prevent dramatic reductions at the local level doesn’t kick in until 2018. That means some districts – such as Lincoln Public Schools – have experienced a major reduction in their 2017-18 Title I funds, which in turn has had a harmful effect on private school students’ proportionate share. This requires private school representatives to be all the more diligent in obtaining all available funds from the local district.

Title II-A:

Private school student and teachers’ proportionate share must now be drawn from a local district’s entire Title II-A allocation, and not just from a specific portion set aside for “Professional Development.” If the local district previously designated all of its Title II-A funds for Professional Development, there will be little change. If it previously used only some of its Title II-A funds for Professional Development, private school students and teachers should now receive an increased proportionate share.

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