ESSA and Other Federal Policy Updates

ESSA, The Supreme Court, and the Election
It seems like all eyes are on November 8th, and the impact that the election of new policy makers may have at the federal, state, and local level. NASP is following the education priorities of the Presidential candidates and maintaining contact with the major campaigns to ensure our policy priorities are heard (more on that later).  But there are lot of non-election related happenings that could result in some significant policy and practice changes in our schools. This edition of Policy Matters will provide key updates on the Presidential Candidates’ education priorities, update you on ESSA implementation efforts, and highlight three critical upcoming Supreme Court Cases that could have implications for practice in the future.

ESSA Implementation
As we await the final regulations regarding assessment, accountability, and spending requirements, states have begun developing plans for how ESSA will look at the local level.  Our state associations have been hard at work making sure that access to school psychological services is a key feature of many of these state plans. Based on what we are hearing from leaders in the field, the conversations are focused on how to accurately measure school quality and school improvement, and how to best support students in ways that increase success and learning. To help school psychologists and policy makers really think through these issues we’re developing an FAQ for ESSA implementation that will be ready soon.  In the meantime, be sure to visit for a wealth of information about the new law and the role school psychologists can play in local implementation.

Lack of funding is often cited as a barrier to expanded access to comprehensive school psychological services, including comprehensive mental and behavioral health services.  ESSA authorizes $1.65 Billion dollars for the Student Support and Academic Enrichment Grants (Title IV Part A). These funds can be used to help schools and districts improve school safety and school climate, improve mental and behavioral health care, and support social emotional learning. To help states and districts better understand how these funds can be used, the US Department of Education released this non-regulatory guidance. Use this guidance in your advocacy with local and state level officials to help them understand the importance of comprehensive learning supports, how school psychologists can help develop and implement these service delivery systems, and how districts can use federal funds to scale up existing programs and services in our schools.
Education Priorities of Presidential Candidates
Last week, Hillary Clinton released a comprehensive plan, “Better Than Bullying,” to help states and schools combat bullying. NASP released this statement, supporting the policy proposals that mirror many of NASP’s policy and practice priorities as outlined in A Framework for School-Wide Bullying Prevention and Safetyand include:  

  • Passing the Safe Schools Improvement Act, which requires that federally funded school districts adopt comprehensive policies to prohibit bullying on the basis of race, color, national origin, sex, disability, sexual orientation, gender identity, and religion
  • Passing the Safe Schools Improvement Act, which requires that federally funded school districts adopt comprehensive policies to prohibit bullying on the basis of race, color, national origin, sex, disability, sexual orientation, gender identity, and religion
  • Expanding school mental and behavioral health prevention and early intervention services
  • Creating positive school environments where all students feel safe and supported
  • Expanding social–emotional learning and other comprehensive behavioral interventions
  • Implementing suicide prevention programs
  • Improving access to school psychologists and other school-employed mental health professionals
  • Regardless of who wins the election, NASP is committed to working with the next Administration and Congress to ensure that our schools have the necessary policies, practices, and resources in place to ensure that all students attend a school that is free of bullying, harassment, and discrimination.

Supreme Court and Education
It’s not often that the Supreme Court takes up cases related to education, but this term, it will be hearing three cases: two related to special education and one related to transgender students.  We will not know the outcomes of these cases or the implications for school districts for several months, but these are indeed cases to watch.  As NASP learns more, we will be sure to educate you on how this could impact schools and the role of the school psychologist. For now, I offer a summary, and a somewhat simplified version of the legal proceedings leading up to these cases. For the specific details and legal precedents surrounding these cases click on heading of each case and it will take to you to full court docket which contains all of the court documents and other briefs related to the case.

Gloucester County School Board v. G.G. (Case No. 16-273)
The Supreme Court has decided to hear a case regarding transgender students’ right to use the bathroom that corresponds with their gender identity.  This case began with Gavin Grimm, a student who came out as transgender when he was a freshman in high school. Gavin, who identifies as male, was initially allowed to use the boys’ bathroom until the school board, under pressure from parents, adopted a policy that required students to use the bathroom that corresponds with their biological sex, or to use a separate, single-stall bathroom. Gavin fought this decision and sued the school board.  The 4th Circuit Court of Appeals heard this case and ruled in favor of Grimm, but the school board petitioned the high court, which issued a ‘stay’ meaning that Gavin will have to abide by the school board policy until the Court rules on this case. 

In May, the Obama administration released guidance citing Title IX, which protects students from sex and gender discrimination, directs schools to allow students to use the bathroom that matches their gender identity, a move which was praised by NASP and other education and advocacy groups. However, a federal judge in Texas granted a nationwide injunction on the guidance and numerous states have joined in a lawsuit suing the Federal government for what they believe is federal overreach on this issue.  The case is expected to be heard in early 2017, and could have significant implications for  transgender students in our schools. For additional NASP resources on this topic:

Fry v. Napoleon Community Schools (Case No. 15-497)
Earlier this week, the Supreme court heard oral arguments on a case that examines whether a family could sue a school district under the Americans with Disabilities Act (ADA) and other federal disabilities laws before exhausting all of the administrative remedies, like due process, under the Individuals with Disabilities Education Act (IDEA).

This case centers around Ehlena Fry, a student with cerebral palsy who requires the assistance of a doctor-prescribed service dog, named Wonder. In 2010, the district refused to acknowledge that Wonder was a service dog and prohibited Ehlena from bringing her service dog to class claiming that the dog was not necessary since they were paying for an aide to help her. The Fry’s decided to homeschool Ehlena so she would not have to be separated from Wonder, and in May 2012, the Office of Civil Rights at the US Department of Education issued a finding that the school district violated Ehlena’s rights under the Americans with Disabilities Act. The district allowed Ehlena to return to school with Wonder, but citing concerns about the school’s attitude toward Ehelna, they transferred her to a public school in a neighboring district where she felt more welcomed.

The lawsuit contends that the district discriminated against Ehlena and violated the Americans with Disabilities Act (ADA) and Ehlena’s family claims that this caused her significant emotional distress and is seeking monetary damages that are not available under IDEA.  However, the district argues that the family should have first asked for an administrative hearing and exhausted the appeals process outlined in IDEA.  A final ruling is expected in Spring 2017.

Endrew F. V. Doublas County School District(Case No. 15-827)
This case seeks to examine the level of educational benefit a child must receive under their Individualized Education Program (IEP) to meet the demands of IDEA.   The case centers around Endrew F., a student with autism, who attends school in Douglas County Colorado. The parents, over dispute of Endrew’s IEP, pulled him from public school and placed him in private school.  They sought reimbursement for private school tuition; however, the 10th Circuit Court of Appeals ruled that since Endrew’s IEP provided him with “some educational” benefit, the district had provided him with a free, appropriate, public education (FAPE) as required by IDEA.  Similar cases have been heard in other jurisdictions, and other courts have set a higher standard of “meaningful educational benefit” as necessary to provide FAPE.  

Due to discrepancy in how FAPE is interpreted and  the level of “educational benefit” that IEPs must provide to students, many are hoping the Supreme Court will resolve this conflict and provide more clarity on the issue.  This case is likely to be argued in early 2017.