From the NSBA School Law Seminar Boston, MA

Apr 7, 2016

Thursday, April 7, 2016

Early Bird Session: Office of Civil Rights (OCR) Workshop

This is an opportunity for Council of School Attorneys (COSA) members to discuss recent experiences with OCR investigations.   (Unofficial title: “The Airing of Grievances”)

Comments from participants so far, regarding OCR:

“They started investigating a single complaint and expanded it into a full compliance review.”

“They demand information and expect us to make school personnel available for interviews ASAP, then you don’t hear from them for months or years.”

“The Resolution Agreement required us to incorporate specific policy language. Then, in a subsequent investigation, they told us the policy — which they wrote — was illegal!”

“Have heard from multiple sources that there is a mandate from the executive branch to investigate southern school districts.”

(Uh oh…former OCR attorney among us. She regrets sitting in the middle of the room…also refutes the statement that there’s a mandate to investigate southern schools….)

“Individual complaints are resolved pretty quickly, the systematic complaints/compliance reviews require an enormous amount of data and information, OCR conducts investigations, then we hear nothing. Years later, they request more information which must be provided within 15 days.”

Consensus seems to be that OCR overreaching continues, but they lack resources to follow through. This works to school districts’ advantage in the short term, but when they return years later and request information, it can be harder to comply due to turnover in personnel and the age of the data.

School attorneys and districts are frustrated because our goals are the same as OCR’s.   The process is too cumbersome, OCR does not follow its process manual, and it takes too long to reach resolution.


First General Session: The Every Student Succeeds Act (ESSA)

In December, 2015, Congress reauthorized the Elementary and Secondary Education Act (ESEA), commonly known as the No Child Left Behind Act. The new law, titled the “Every Student Succeeds Act,” or “ESSA,” limits the role of the federal government in K-12 public education and vests more control in states and local governments.

The Department of Education (ED) is expected to issue regulations during the fall of 2016 to allow states and school districts time to implement requirements for the 2017-2018 school year.  In addition to the regulations, ED is likely to issue guidance (such as “Dear Colleague” Letters and FAQs) on various requirements and provisions that will shape the implementation of ESSA.   Such guidance is not subject to public comment, but often is viewed as binding by states and school districts.


Some specific provisions of ESSA:

— Maintains requirements for standards and aligned assessments for the same grades and subjects as current law.

— Replaces “Annual Yearly Progress” with a State-defined assessment index.

— States must use school and sub-group performance indicators to “meaningfully differentiate” between public schools (not school districts).

— States must test 95% of all students and all sub-groups (concerns noted regarding conflict with parents’ opt-out rights).

— At least once every three years, states must identify schools for “comprehensive support and improvement.”   Requires identification of schools that: are among the 5% lowest performing in the State; high schools that graduate fewer than two-thirds of their students; and schools for which a subgroup is consistently underperforming in the same manner as a school under the previous 2 categories for a State-determined number of years.

— In addition to identification for comprehensive support and improvement, the State must annually notify school districts with schools which have “consistently underperforming” subgroups. Schools which are notified must develop and implement a “targeted support and improvement plan.”

— Eliminates requirement for and reporting of highly qualified teachers.

Consensus among school attorneys and school board advocates is that ESSA is a significant improvement over NCLB, in that it provides for greater local control and is less punitive in tone and effect.


That’s a wrap for day 1. So far Boston is cold and rainy…perfect for sitting indoors at a law seminar!