The Every Student Succeeds Act (ESSA), at its core, presents a challenge to the states as they focus on implementation of the law. As passed, ESSA offered states new flexibility in how they determined the academic performance of their students and required states to commit to supporting all students equitably. However, early indications reveal that states may struggle to live up to the promise of equity. From multiple independent reviews of the plans submitted by the states to the U.S. Department of Education, it is clear that the law’s promise to give states more freedom in their delivery of education does not mean that all students will benefit equitably from these innovations. Members of Congress and civil rights organizations have questioned whether some states are even complying with this new federal law. Equally concerning is that the current secretary of education, Betsy DeVos, has shown little interest in the success of our nation’s public education students and, unlike in the past, the federal government will not serve as a backstop against any state or school district that wants to go back to a time pre-No Child Left Behind (NCLB) when the performance of students of color, students with disabilities, or English learners could be easily ignored or dismissed.

An Unfulfilled Promise of Equity under ESSA

For more than sixty years, the federal government has struggled to get states to take ownership for providing an equitable education for all students. Since the Supreme Court’s 1954 decision in Brown v. Board of Education, the federal government’s attempt to hold states accountable for reversing school segregation, few states have taken seriously their responsibility outlined in Brown, and others chose to willfully ignore it. Subsequently in 1965, when the federal government stepped in with direct investments to the states via Title I of the Elementary and Secondary Education Act (ESEA) to provide compensatory funding to states with a high proportion of poor children, it was due to a lack of states’ attention or willingness to address the unequal experiences poor and minority students faced in state public education systems.

The No Child Behind Act, a newer version of ESEA which passed Congress in 2001, also took states to task by requiring them to report student performance by race, disability, English proficiency, and income level and take action to improve the performance of schools based on this data. The disaggregation of this data has proven to be one of the lasting and most successful strategies in identifying and narrowing the achievement gap that plagues our system of public education.

Near the second term of the Obama administration, when it appeared that Congress was incapable of arriving at a bipartisan consensus around elementary and secondary education policy, the U.S. Department of Education (ED) offered states the opportunity to apply for time-limited waivers to NCLB. These waivers allowed states to design new state systems for identifying the lowest performing schools, incorporate specific interventions to turn around these low performing schools, and evaluate teachers and leaders on their students’ performance in the classroom. Forty-five states plus Washington, D.C., Puerto Rico, and the Bureau of Indian Education applied for these waivers to ESEA, and forty-three states plus D.C. and Puerto Rico were approved by ED. Indeed, ED did not escape criticism from civil rights organizations, who saw state waiver plans as lacking in equity measures or plans that would assure access and opportunity for all students. And much like the current administration, the previous administration approved nearly ever waiver request they received.

The Every Student Succeeds Act was applauded by some education stakeholders for offering states the opportunity to innovate and move away from a top-down, one-size-fits-all solution to low academic performance. Governors were eager to demonstrate that when they were freed from requirements of the federal government, their states would rise to the occasion and provide more opportunity for students to achieve.

Sadly, states are now proposing strategies in their ESSA plans that are no different than the strategies described in their waiver requests. Even more concerning is that the new administration is also approving these plans without regard for the new requirements in federal law for states to prioritize equity in their systems.

Here are a few examples of how some states are using the moniker of “flexibility” to retreat on equity:

Super Subgroups

One of the the most powerful tools for equity that came out of No Child Left Behind was the requirement that school districts report on how certain groups of students performed on standardized testing. Since that time, we now have information on how students perform by race, income level, disability, and language proficiency in all states. This new data has been critical in efforts to identify achievement gaps within schools and across school districts. However, with the increased discretion provided to states under the Obama waiver authority and again under ESSA, several states adopted the use of “super subgroups,” effectively combining several subgroups into one larger group. The argument for this choice was to allow districts to provide supports for a larger group of students. However, others expressed concerns that these super subgroups would also mask performance by individual subgroups. In other words, an at-risk super subgroup that included race and income would not allow the public to understand how African American students were performing as a group because the entire group would now be reported as an “at-risk” super subgroup.


Both NCLB and ESSA required states to identify struggling students by subgroup for targeted intervention, even at schools where overall performance might be high. Under the Obama waiver authority and in ESSA state plans, states have shown a willingness to avoid meeting the challenges faced by these students whose needs can be drastically different than the needs of the rest of the students in a school. Under ESSA, states are required to develop a tiered system of identification that will promote differentiated interventions for struggling students. So far, a number of states have ignored this requirement and the DeVos Department of Education approved their plans.


Both No Child Left Behind and ESEA Waivers promoted simplistic views of what it takes to turn around schools that are struggling to achieve. Furthermore, school districts were penalized, and therefore the students who attended the schools and the communities where the schools were located, when efforts to turn around these schools failed to make a difference in student academic performance. At ESSA’s passage, House and Senate leaders applauded the new flexibility in the law that would allow states and school districts broad discretion on the steps and practices that would initiate school improvement. It is too soon to speak to the effect of this new policy, but very few states offer insight into how equity factors into their school improvement plans. Connecticut and Minnesota are noteworthy in that they call out equity in their executive summaries.


When the Obama administration yielded to states’ requests that they waive the twelve-year timeline in NCLB, which required all states to raise student academic performance levels to 100 percent proficient by 2014, it opened the door for states to revisit their commitment to meeting the academic needs of all children within a rigorous timeframe. Practically speaking, few states were going to meet the NCLB timeline, nor did they have the capacity or resources to intervene in the increasing number of schools that would be tagged as ‘failing” under NCLB. There were also questions about the credibility of the bar used to establish proficiency across the states.

The waiver authority of ESEA waived the timeline altogether. Under ESSA, states set their own timeline for proficiency and what proficiency means. Many states moved their proficiency bars lower than 100 percent, which can be more realistic for those states that have the farthest to go in improving student performance. Other states used metrics such as cutting the achievement gap in half over a number of years. Sadly most plans lacked sufficient detail to assess whether they could achieve these goals.

Equity Levers Exist

There are a number of resources in the field to help states establish their footing and help all students make the important gains that will support their success. The Learning Policy Institute cites several of these equity-drivers in their report “Equity and ESSA: Leveraging Educational Opportunity Through the Every Student Acts,” as does the Council of Chief State Officers and the Education Commission for the States. The Century Foundation’s work on school integration provides yet another set of tools available to state and school district leaders to focus on educational equity.

Now that the DeVos Education Department has approved plans from forty-nine states plus Washington, D.C. and Puerto Rico, implementation of ESSA is squarely in the hands of the states and school districts. Many states readily admitted that they will need to revisit and adjust their plans as they begin the work in their local schools. Ensuring that states use the flexibility offered by ESSA to move closer to the goal of educational equity, particularly narrowing the gap between students who are furthest away from graduating prepared for college and careers and their peers who are on track, will require school and state leaders to look closely at what they hope to achieve through “flexibility” to be sure that ESSA doesn’t turn out to be another round of education reform that ends with a new generation of students losing ground.