Is ESSA a retreat from equity? 


The Every Student Succeeds Act includes guardrails to protect equity, but vigilance is needed to ensure states don’t go around them. 


In 1965, President Lyndon B. Johnson signed the Elementary and Secondary Education Act (ESEA) into law. It was then — and still remains — not only the federal government’s greatest investment in primary and secondary education but also, as Johnson noted at the time, “a major . . . commitment of the federal government to quality and equality in the schooling that we offer our young people.”  

Fifty years later, in 2015, ESEA was reauthorized in bipartisan fashion and signed into law by President Barack Obama as the Every Student Succeeds Act (ESSA), replacing No Child Left Behind (NCLB) — the previous iteration of ESEA — and ushering in a new era of educational governance and leadership. But will this new version of the law continue to advance the cause of “quality and equality” touted by Johnson?  

ESSA was intended to fix NCLB’s many flaws, particularly its narrow emphasis on using standardized tests to measure school performance and hold educators accountable for student achievement. However, it’s important to remember that NCLB also had its benefits. Perhaps most important, it shined a bright light on the academic performance of specific student populations, or  “subgroups” (including students with disabilities, English learners, children from low-income backgrounds, and Black and Latinx children), whose needs have received too little attention, over many decades, from education policy makers at the state and local levels. With its relentless pressure on states and school districts to eliminate achievement gaps, NCLB reflected a federal effort to more tightly bind together an often-fragmented educational system and eliminate inequities. As former undersecretary for education Eugene Hickok (2003) put it, NCLB made it “more difficult to close one’s eyes to persistent underperformance by students and schools” (p. 22).  

One has to wonder, now that ESSA has relaxed NCLB’s many federal requirements, will states take advantage of their newfound flexibility to design educational systems that better meet the needs of all children? Or, absent any real pressure from the federal government, will they make little effort to address disparities among subgroups of students?  

To answer these questions, we examine key provisions of the new law, provide an update on states’ implementation, and speculate as to whether the return to state and local control is more likely to promote educational equity or undermine it. 

Equity under ESSA: The law and its implementation 

Although requirements related to student subgroup performance have loosened under ESSA, equity concerns are not entirely absent from the law. Four requirements stand out: (1) Within the ESSA plans they submit to the U.S. Department of Education (DOE), states must explicitly describe how they intend to address equity concerns. (2) States must report school-level per-pupil spending when they issue school report cards (Amerikaner, 2018). (3) States have to identify and address any inequities in resources for schools that need support and improvement. And (4) districts are incentivized to implement strategies for funding schools based on student need and to expand opportunities for traditionally underserved students (Cook-Harvey et al., 2016).  

However, when assessing ESSA’s potential to promote equity, we must look beyond the letter of the law to the ways in which states are actually interpreting and implementing it. For instance, how are states incorporating additional measures of school quality — beyond NCLB’s narrow focus on student test scores and graduation rates — and what implications might that have for equity?  

The new school quality indicator most commonly included in state ESSA plans is chronic absenteeism (which is strongly associated with poor performance in school), with 36 states and the District of Columbia including it in their accountability systems. In addition, nine states include a measure of school suspension rates, and eight states plan to use student surveys to measure school climate (Kostyo, Cardichon, & Darling-Hammond, 2018). In theory, these indicators could reveal important disparities (showing, for example, that a given school has done little to reduce truancy among students from low-income backgrounds), prompting efforts to address them. However, some states have opted to use so many measures of school quality — for example, Connecticut and Arkansas have chosen more than 10 indicators each — that the amount of data generated could easily become overwhelming, making it difficult for schools to improve in any single area (Ushomirsky, Smith, & Bommelje, 2017), while also making it difficult for parents to discern school quality. 

Equity implications also follow from the choices states make about how big a student subgroup must be (the “n-size”) for it to be counted for accountability purposes. A smaller n-size means that even if a school enrolls a relatively small number of, for example, students with disabilities, it still has to report on the progress of that student population, letting the public know if those students are falling behind and need greater levels of support. Conversely, if states choose to make the n-size very large (e.g., deciding that if a school enrolls only a modest number of students with disabilities, then it doesn’t have to keep track of that subgroup’s progress), or if the state decides to merge subgroups together (e.g., requiring schools to issue a progress report that lumps together students with disabilities and English learners) the effect is to conceal how particular student subgroups are doing.  

According to the National Center for Education Statistics, n-size can be as low as five students and still protect student privacy and ensure statistical reliability (Alliance for Excellent Education, 2018a). However, ESSA permits states to set their own n-sizes, and not all of them allow for such small subgroups. For example, let’s say that a state has decided to set a minimum n-size of 12. This means that if a given elementary school enrolls 11 English learners (ELs), it is not required to report how well its ELs are doing. As far as the accountability system is concerned, any subgroup of fewer than 12 students is invisible. The public won’t know whether these students have been treated equitably, or whether something needs be done to address their needs. 

In a recent study, the Alliance for Excellent Education (All4Ed) found that under ESSA, 22 states have set n-sizes of 20-29 students per subgroup, and 8 states have n-sizes of 30 students (Alliance for Excellent Education, 2018b). Only 14 states and the District of Columbia have an n-size as low as 10. And only one state, Ohio, has chosen to lower its n-size, from 30 students per subgroup to 15 (which will significantly increase the numbers of students counted by the state accountability system). For example, the proportion of schools required to report on the progress of students with disabilities has increased from 58% to 86% (Samuels, 2017).  

Further, All4Ed found that 12 states do not include student subgroups in their school accountability ratings at all (Alliance for Excellent Education, 2018c). And some states have combined subgroups into larger “supersubgroups,” effectively masking any variation between those subgroups and potentially allowing inequities to go unnoticed and unaddressed (Ushomirsky, Smith, & Bommelje, 2017). Such changes are made for political reasons at least as much as educational ones, and they may reflect the desire of state and local educational officials to make the performance of the public school system appear better than it is by reporting fewer failing schools and less visible gaps among subgroups. 

A preliminary review of state ESSA plans by Education Week found that states’ implementation of ESSA varies widely in many other ways, as well, including their long-term goals for student achievement and/or their “contained relative goals” (whether subgroups of students who are behind are required to reach the same endpoint goals). For example, Pennsylvania expects “all students and each subgroup to reduce by half the percent of students scoring below proficient on tests by 2029-2030” (Klein, Sawchuk, & Ujifusa, 2017), a plan that does nothing to reduce achievement gaps among subgroups (since each subgroup is supposed to make the same improvement). And New York’s ESSA plan permits the state to reset its achievement goals each year (Samuels, 2017), which would make longitudinal assessments of progress difficult.  

A call for vigilance 

Channa Cook-Harvey and colleagues from the Learning Policy Institute (2016) have argued that ESSA can advance equity through its focus on: (1) higher-order thinking skills for all students, (2) multiple measures to assess school performance and progress, (3) requirements that schools and districts report on resource equity, and (4) emphasis on evidence-based interventions for school improvement. They place a great deal of faith in states complying with all aspects of the law, including addressing inequities, and they argue, quite correctly, that ESSA provides multiple opportunities and avenues for states to create more equitable school systems.  

But equity-focused interest groups and coalitions at the state level must remain vigilant and watch state-level trends carefully. If state leaders stray too far from the pursuit of equity, or adopt policies that exacerbate existing inequities, then advocates will need to be ready to exert pressure on legislators to undertake more aggressive equity-based reforms. This vigilance is essential because, in many ways, ESSA is toothless. The federal stick wielded under NCLB has been replaced with a twig; it is highly unlikely that today’s U.S. Department of Education will actually withhold federal funds from states, rhetoric notwithstanding, because the Trump administration has shown little interest in K-12 oversight.   

The checkered history of state education policy making should give equity advocates pause for concern. 

Civil rights organizations and congressional Democrats rightly worry that federal education officials have been too lax in approving states’ ESSA plans and will not closely monitor implementation of those plans (Klein, Sawchuk, & Ujifusa, 2017). For example, Rep. Bobby Scott (D-VA), chairman of the House Education and Labor Committee, has stated that he “remain[s] concerned that many state [ESSA] plans fall short and risk continuing or even exacerbating inequalities for disadvantaged students. . . I remain disappointed that many states are still ignoring subgroup performance” (Klein, 2019). The checkered history of state education policy making should give equity advocates pause for concern. 

There are resources available to help those who care about these issues keep track of how their states are doing. For example, All4Ed, one of several organizations closely watching how states are using their newfound freedom and flexibility to improve schooling, has created one-page dashboards using stoplight designations (green, yellow, or red) to identify strengths and shortcomings in state ESSA plans (Alliance for Excellent Education, 2017). These dashboards focus on essential equity indicators, including the states’ long-term goals for student achievement by subgroup, and offer a good place for stakeholders to get an overview of how plans are shaping up in their state. 

Daria Hall of the Education Trust notes that the quality of states’ accountability indicators — specifically, “whether schools are rated based on the performance of each subgroup of students and whether there are rigorous criteria for when schools and districts have to act to better serve individual groups of students” — is key to whether equity will be advanced through ESSA (Klein, Sawchuk, & Ujifusa, 2017). According to Hall, many state plans fail to rate schools based on subgroup performance or lack rigorous criteria requiring action for consistently low-performing schools. Similarly, the Data Quality Campaign reviewed all 50 state report cards and found that 42 states do not include disaggregated achievement data for at least one federally required subgroup, and 12 states do not include student-growth data (Burnette, 2019). In several states, schools can be rated highly in the state accountability system despite poor subgroup performance.  

Colorado, Florida, Michigan, and Utah have even created separate accountability systems (one for federal ESSA reporting and another one for the state). For school leaders, performance on the state accountability system trumps the one states report to the DOE. Any state-mandated interventions or pressure for improvement will be judged by performance on the state accountability system. Furthermore, having two different accountability systems that could report different results makes student and system performance less transparent. 

Another equity concern is raised by states seeking waivers that allow them to conceal disappointing performance trends from the public. Here, the most prominent example is Florida, which has petitioned the DOE to avoid having to release state report cards that would show how poorly English learners are performing on state proficiency exams, or how wide current achievement gaps are among student subgroups.  

As Rosa Castro-Feinberg, a civil rights activist, has argued, “It’s unconscionable that there would be no accountability applied at the school level for this very primary function, to close achievement gaps, especially in an immigrant-rich state such as Florida” (Burnette, 2017). This is an area where it is critically important for the federal government to play a role, says Cheryl Sattler, a consultant helping Florida school districts comply with the law: “I feel like sometimes it’s necessary for a higher government to provide the political cover to make changes that aren’t always comfortable” (Burnette, 2017).  

In 2017, Florida officials stated their intention to apply for waivers from several ESSA requirements, including the requirement to test students in languages other than English and to factor subgroup performance into its accountability system. Facing public backlash from several civil rights organizations, state officials nonetheless chose to include the waiver request language in the original plan submitted to the Department of Education on Sept. 20, 2017. In a letter to Secretary Betsy DeVos dated Nov. 9, 2017, the Leadership Conference on Civil and Human Rights and 17 other civil rights organizations urged DeVos to reject the state’s plan, and the plan was, in fact, rejected on Dec. 19, 2017.  

Guardrails are effective only insofar as federal and state leaders engage in appropriate oversight.

Then, on April 20, 2018, Florida submitted a revised plan proposing to create a separate “federal index” (a separate accountability system used only for federal reporting) that would be reported to the Department of Education but would not affect the state’s A-F accountability system. In a letter to DeVos, representatives of the civil rights groups LULAC-Florida and UnidosUS urged the secretary to reject Florida’s revised plan for its failure to include subgroup performance into its accountability system, for not including English proficiency in the accountability system, for not putting assessments into students’ native languages, and for not including clear rewards, sanctions, and supports for student subgroups (Corugedo & Nordlund, 2018). However, Florida’s final plan was approved by the DOE in September 2018. While Secretary DeVos initially took a tough line on approval of state plans, she quickly backed off under pressure from Sen. Lamar Alexander and other key Republicans suspicious of perceived aggressive oversight by DOE officials (many of whom had served in the Obama administration).   

Equity in retreat? 

ESSA differs from NCLB in that it gives substantial flexibility and power to the states. Alongside this flexibility, ESSA has guardrails that are intended to protect and promote equity. The responsibility to ensure that equity is meaningfully addressed in state ESSA plans falls both to the states in developing the plans and to the DOE for approving the plans.  

At this point, the Department of Education has approved all state plans, but, as described above, many states have missed opportunities to address equity in meaningful and impactful ways. Further, some states have taken steps to circumvent ESSA’s equity guardrails, and rather than holding them accountable for doing so, the DOE has approved ESSA plans that fail to comply adequately with the equity provisions of the law (Jiminez & Flores, 2019). As implementation proceeds, all education stakeholders must remain attentive to how this shift in educational governance and leadership affects how well schools are providing an equitable education to all students. Just as laws are not self-executing, guardrails are effective only insofar as federal and state leaders engage in appropriate oversight. While officials at no one level of government hold a monopoly on equity, oversight at the federal and state level is essential in ensuring that ESSA does not represent a retreat from equity.


Alliance for Excellent Education. (2017, June 22). New analyses identify shortcomings and strengths in state ESSA plans (Press Release). Washington, DC: Author.  

Alliance for Excellent Education. (2018a). Ensuring every student matters: What is n-size and why is it important? Washington, DC: Author. 

Alliance for Excellent Education. (2018b). N-size in ESSA state plans, updated. Washington, DC: Author. 

Alliance for Excellent Education. (2018c). Too many states minimize student subgroup performance in ESSA accountability systems, updated. Washington, DC: Author. 

Amerikaner, A. (2018). Making ESSA resource equity provisions meaningful. The State Education Standard, 18 (3), 15-17. 

Burnette, D. (2019, April 3). A heavy lift to make data transparent, easy to use. Education Week, 38 (27), 10-12. 

Burnette, D. (2017, July 20). Florida to seek waiver from key ESSA provisions. Education Week, 37 (1), 73.  

Cook-Harvey, C.M., Darling-Hammond, L., Lam, L., Mercer, C., & Roc, M. (2016). Equity and ESSA: Leveraging educational opportunity through the Every Student Succeeds Act. Palo Alto, CA: Learning Policy Institute. 

Corugedo, M., & Nordlund, J. (2018, August 10). DeVos letter August 2018 ESSA. 

Hickock, E.W. (2003). Changing the terms of our national discussion about education. Basic Education, 47 (2), 22-25. 

Jiminez, L. & Flores, A. (2019, May 30). 3 ways DeVos has put students at risk by deregulating education. Washington, DC: Center for American Progress.  

Johnson, L.B. (1965). Johnson’s remarks on signing the Elementary and Secondary Education Act. Austin, TX: LBJ Presidential Library. 

Klein, A. (2019, April 9). Top Democrat to state chiefs: ESSA’s flexibility isn’t a ‘blank check’. Politics K-12 at Education Week. 

Klein, A., Sawchuk, & Ujifusa, A. (2017, October 2). A guide to state ESSA plans: Goals, teacher quality, and more. Education Week, 37 (7), 20-21  

Kostyo, S., Cardichon, J., & Darling-Hammond, L. (2018). Making ESSA’s equity promise real: State strategies to close the opportunity gap. Palo Alto, CA: Learning Policy Institute.  

Samuels, C.A. (2017, October 25). Will ESSA reduce states’ accountability in special ed? Education Week, 37 (10), 19. 

Ushomirsky, N., Smith, A., & Bommelje, S. (2017). Trends in state ESSA plans: Equity advocates still have work to do. Washington, DC: The Education Trust.  


Citation: Fusarelli, L.D., Ayscue, J.B. (2019, Sept. 23). Is ESSA a retreat from equity? Phi Delta Kappan , 101 (2), 32-36.

LANCE D. FUSARELLI (; @lance_fusarelli) is a professor of educational leadership and policy at North Carolina State University, Raleigh.
JENNIFER B. AYSCUE ( is research director of the Initiative for School Integration at The Civil Rights Project, University of California, Los Angeles.

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