Courtesy U.S. Department of Education
President Obama signed the Every Student Succeeds Act into law on December 10, 2015.

Size Matters: Decoding the New Education Law

Tanya H. Lee

The new federal education law offers unprecedented opportunities for tribes to have a say in how public and charter schools educate their children.


The Elementary and Secondary Education Act of 1965 (ESEA) was passed a decade after the Supreme Court decided in Brown v. Board of Education that “separate but equal” classrooms did not meet the letter or the spirit of the law. ESEA was essentially a civil rights law, meant to ensure that all students had access to a decent education.

It still is.

What has changed over the years is the understanding of how best to meet that goal, according to Adam Fernandez, a legislative staff attorney for the civil rights organization MALDEF and one of the presenters of a National Indian Education Association June 1 webinar.

The No Child Left Behind Act (NCLB), the 2001 reauthorization of ESEA, was intended “to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.” All children—minority kids, poor kids, disabled kids, English-language learners, urban kids, kids on reservations—had to be proficient in reading and math by the 2014-2015 school year and that proficiency would be determined by federally-mandated testing.

The goal turned out to be unrealistic, and many educators and parents objected to the heavy emphasis on testing.

The Every Student Succeeds Act (ESSA), the most recent reauthorization of ESEA was signed into law by President Obama in 2015, 50 years after the original federal education law was passed. Under ESSA, states and school districts are required “to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.”

The mandate to close the educational gap is new and could have a profound impact on the education of AIAN kids, who typically have the biggest achievement gap when compared with other racial and ethnic groups of students—if states and school districts are properly held accountable.

Accountability was the focus of the NIEA webinar. Fernandez and Dimpel Patel, NIEA Tribal State Policy Associate, made several points that tribal educators and leaders may find useful.

Tribal Consultation

ESSA mandates that states and school districts consult with stakeholders in developing the accountability plans that they will use to determine if they are meeting the federal requirement to provide every child with a good education.

Along with teachers, parents, civil rights organizations and others, tribes are specifically named in the law as stakeholders, so tribal consultation is mandatory. As a practical matter, however, in a lot of cases it will be up to tribes to make sure that consultation happens and that it is substantive and meaningful.

Begin Now

On May 31, the U.S. Department of Education published its proposed accountability rules for ESSA in the Federal Register, opening a 60-day comment period that ends August 1.

In addition to whatever formal consultation the department may initiate with tribes, any tribal educator, tribal leader, parent, community member or student may comment on the proposed rules. The link for submitting comments is on the first page of the online Federal Register notice.

NIEA told ICTMN that another good way to get involved before the rules are finalized—and after—is to find out what working groups the state has set up to develop its accountability plan and to make sure there are tribal representatives in those groups. The requirement in the law for tribal consultation should provide leverage for insisting that a tribal voice is present.


A little-understood technical term that turns out to be critical in the proposed accountability rules is “n-size.”

ESSA mandates that states must determine and report on how well racial and ethnic subgroups of children are doing in school and one of the required subgroups is American Indian and Alaska Native students.

So far, so good.

N-size refers to the minimum number of AIAN (or other) kids who must be present in a school in order to count as a reportable subgroup. If the state has set the n-size at 30, then a school with 29 AIAN students would not have to report on how well they were doing. They would simply be counted in as part of the general population of the school. They could all be failing, and no one would ever know. Further, there would be no requirement that they or their teachers receive supplementary resources based on their achievement levels.

If the n-size in that state, however, had been set at 10, then the 29 AIAN kids would constitute a reportable subgroup and the school, parents, teachers and the community would know how they were doing academically.

N-size is a factor that will be set by states’ in their accountability plans. It’s a good place to start advocating for AIAN kids. The Alliance for Excellent Education recommended in a June 8 report, “Ensuring equity in ESSA: The Role of N-Size in Subgroup Accountability,” an n-size of 10 or less. Thirty-eight states and the District of Columbia set the n-size at 11 or higher, according to the report, which gives n-size for each state.

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