[Federal Register: April 23, 2008 (Volume 73, Number 79)]
[Proposed Rules]
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From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ap08-36]
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Part II
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged;
Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AB01
[Docket ID ED-2008-OESE-0003]
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing
programs administered under Part A of Title I of the Elementary and
Secondary Education Act of 1965, as amended (ESEA), to clarify and
strengthen current Title I regulations in the areas of assessment,
accountability, public school choice, and supplemental educational
services.
DATES: We must receive your comments on or before June 23, 2008.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://
www.regulations.gov to submit your comments electronically. Information
on using Regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket is available on
the site under ``How To Use This Site.''
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these proposed regulations, address
them to Zollie Stevenson, Jr., U.S. Department of Education, 400
Maryland Avenue, SW., room 3W230, Washington, DC 20202-6132.
Privacy Note:
The Department's policy for comments received from members of
the public (including those comments submitted by mail, commercial
delivery, or hand delivery) is to make these submissions available
for public viewing in their entirety on the Federal eRulemaking
Portal at http://www.regulations.gov. All submissions will be posted
to the Federal eRulemaking Portal without change, including personal
identifiers and contact information.
FOR FURTHER INFORMATION CONTACT: Zollie Stevenson, Jr. at 202-260-1824.
If you use a telecommunications device for the deaf (TDD), you may call
the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, in room 3W202, 400
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m.
and 4 p.m., Eastern time, Monday through Friday of each week except
Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
The No Child Left Behind Act of 2001 (NCLB), which amended and
reauthorized the ESEA, fundamentally changed the way States and local
school districts help ensure that all students meet grade-level
expectations or better. The law's core principles, particularly in
Title I, guide the nation's conversation on education: annual
assessments, publicly reported data, assistance for students and
schools that fall behind, and accountability for results. NCLB's focus
on accountability means that all States are now collecting better
information to help schools, educators, policymakers, and parents make
the best decisions for students. The Federal government has supported
NCLB's implementation with significant resources: $165 billion in
funding for NCLB from 2002 to 2008, including an increase of 40 percent
in current dollars since 2001. This funding increase was accompanied by
a philosophical change--that education is not just about how much we're
spending, but about how well we're serving students.
The 2007-2008 school year is the sixth full school year since the
passage of NCLB. Throughout these six years, we carefully monitored the
law's implementation. We gained valuable information from States,
districts, and schools about how implementation of the law's
requirements could be improved to ensure that all students reach
proficiency in reading/language arts and mathematics by the 2013-2014
school year. For example, in the first several years following the
passage of NCLB, we received frequent requests from States to provide
additional flexibility to measure the achievement of students with
disabilities and students with limited English proficiency (LEP) for
purposes of adequate yearly progress (AYP) determinations. In response
to these requests, the Department promulgated regulations to permit
States to include in their AYP determinations the proficient and
advanced scores of students with disabilities assessed based on
alternate and modified academic achievement standards, as well as
regulations that provide flexibility in the assessment of, and
accountability for, recently arrived and former LEP students.
During this time, States developed more sophisticated State data
systems that now permit more accurate calculations of high school
graduation rates, as well as the measurement of individual student
academic growth from one year to the next. Higher-quality State
accountability and assessment systems are in place thanks to the
rigorous standards established under NCLB, the assessment and
accountability peer review process, and most importantly, the hard work
of the States.
With these advancements, we believe that it is time to further
amend and update our regulations to address certain key areas.
Accordingly, these proposed regulations build on the
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advancements of State accountability and assessment systems, while
incorporating key feedback from the field into an even clearer vision
of what it takes to educate each and every one of our Nation's
schoolchildren.
We want to ensure that these regulations are as effective as
possible in advancing the key principles of NCLB and, therefore, want
to provide the opportunity for as much public input on the proposed
regulations as possible. The public will have 60 days to comment on
these proposed regulations. We also will provide opportunities for
public input during regional public meetings; the dates, times, and
locations of these meetings will be announced in a separate notice in
the Federal Register.
These proposed regulations would clarify and strengthen current
regulations in the areas of assessment, accountability, supplemental
educational services (SES), and public school choice. Specifically, the
proposed regulations address the following key areas:
Assessing higher-order thinking skills through multiple
measures.
Increasing subgroup accountability.
Ensuring that States and local educational agencies (LEAs)
include State data from the National Assessment of Educational Progress
(NAEP) on State and local report cards.
Establishing a uniform and accurate method that States
must use to calculate high school graduation rates and setting high
school graduation rate goals for AYP purposes.
Including disaggregated graduation rates in AYP
calculations.
Permitting the inclusion of measures of individual student
academic growth in a State's definition of AYP.
Creating a National Technical Advisory Council to advise
the Secretary on complex issues related to State assessment and
accountability systems.
Identifying schools and LEAs for improvement.
Ensuring that parents receive the information they need to
exercise their public school choice and SES options.
Providing information to the public about participation in
SES and public school choice.
Strengthening the requirements for schools in
restructuring.
Requiring States to be more transparent about how they
monitor LEAs' implementation of SES and strengthening the evidence that
States must consider when approving and monitoring SES providers.
Using SES and school choice funds for parent outreach.
Maximizing use of funds for public school choice-related
transportation and SES.
Issuing regulations that strengthen Title I implementation in these
areas will help bring about higher-quality assessments and stronger
accountability for results, as well as provide parents with the
information they need to make informed decisions about public school
choice and SES. We look forward to receiving your comments on these
proposed regulations to ensure that they accomplish our intended
objectives.
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Section 200.2--State Responsibilities for Assessment
Statute: Section 1111(b)(3)(C)(vi) of the ESEA states that
assessments must involve multiple up-to-date measures of student
academic achievement, including measures that assess higher-order
thinking skills and understanding.
Current Regulations: Section 200.2(b)(7) of the Title I regulations
essentially repeats the statutory language.
Proposed Regulations: Proposed Sec. 200.2(b)(7)(i) and (ii) would
clarify that measures of student academic achievement may include
multiple types of questions that range in complexity and reflect the
cognitive concepts and processes in the State content standards within
a single assessment, as well as multiple assessments within a subject
area.
Reasons: There has been some misunderstanding among parents,
teachers, and administrators that student achievement, for purposes of
accountability determinations under Title I, must be based on a single
assessment. This is not true; in fact, the law requires that a State's
assessment include ``multiple measures.'' The proposed language would
clarify what is meant by this concept, which is included in the law to
ensure that a State's assessment system measure the full range of
cognitive complexity in the State's academic content standards.
Assessments, therefore, should include items that measure both higher
order thinking skills (e.g., reasoning, synthesis, analysis) as well as
knowledge and recall items to assess the depth and breadth of mastery
of a particular content domain. In so doing, States may use a single
test or several tests, or rely on one item format or several item
formats (such as multiple choice or constructed response).
Specifically, the proposed regulatory changes would clarify that,
to meet the requirement to use multiple measures, a State may also
choose to develop an assessment that relies on a combination of
question formats, so long as the assessment reflects the degree of
complexity of the cognitive concepts and processes in the State content
standards. Multiple assessments to measure student achievement in a
subject area may also be used in order to assess mastery of the breadth
of a particular content domain. For example, some States use reading
and writing assessments to calculate AYP in reading/language arts;
other States use algebra and probability assessments to calculate AYP
for mathematics.
These clarifications are necessary to ensure that States clearly
understand that their assessments may include single or multiple item
formats, and that they may use multiple assessments to measure a
specific content domain; they do not impose new requirements or require
States to change their current assessment systems.
Section 200.7--Disaggregation of Data
Statute: Section 1111(b)(2)(C)(v) of the ESEA requires a State to
define AYP so that its annual measurable objectives apply to all
students as well as to specific subgroups of students --that is,
economically disadvantaged students; students from major racial and
ethnic groups; students with disabilities; and LEP students. Section
1111(b)(2)(I) of the ESEA makes clear that, for a school or LEA to make
AYP, all students as well as each subgroup of students must meet or
exceed the State's annual measurable objectives. Sections 1111(h)(1)(C)
and 1111(h)(2) require that States and LEAs report on their report
cards academic achievement data disaggregated by these same subgroups.
Sections 1111(b)(2)(C) and 1111(h)(1)(C) of the ESEA, however, do not
require a State to use such disaggregated data for determining AYP or
reporting achievement data by subgroup if the number of students in a
subgroup is insufficient to yield statistically reliable information or
if the results would reveal personally identifiable information about
an individual student.
Current Regulations: Section 200.7(a) prohibits a State from using
disaggregated data for one or more subgroups to report achievement
results or to identify schools in need of improvement, corrective
action, or
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restructuring if the number of students in a subgroup is insufficient
to yield statistically reliable information. Accordingly, Sec.
200.7(a)(2) requires a State, using sound statistical methods, to
determine and justify in its State Plan the minimum number of students
sufficient to yield statistically reliable information for each purpose
for which disaggregated data are used (e.g., for determining AYP and
for reporting subgroup achievement on State and LEA report cards).
Proposed Regulations: In determining a minimum subgroup size, a
State must balance achieving statistical reliability with maximizing
inclusion of subgroups for accountability purposes (consistent with the
statutory requirements to hold schools and LEAs accountable for the
achievement of specific subgroups). Thus, proposed Sec.
200.7(a)(2)(i)(B) would require a State, as it considers statistical
reliability in setting its minimum subgroup size, to ensure, to the
maximum extent practicable, that all student subgroups are included,
particularly at the school level, for purposes of making accountability
decisions.
Proposed Sec. 200.7(a)(2)(ii) would require each State to revise
its Consolidated State Application Accountability Workbook (which is
part of the State Plan and is hereafter referred to as the
Accountability Workbook) to include (1) an explanation of how the
State's minimum subgroup size meets proposed Sec. 200.7(a)(2)(i); (2)
an explanation of how other components of the State's AYP definition,
in addition to the State's minimum subgroup size, interact to affect
the statistical reliability of the data and to ensure maximum inclusion
of all students and student subgroups; and (3) information on the
number and percentage of students and student subgroups excluded from
school-level accountability determinations.
Proposed Sec. 200.7(a)(2)(iii) would require each State to submit
a revised Accountability Workbook that incorporates the information in
proposed Sec. 200.7(a)(2)(ii) for technical assistance and peer review
no later than six months after the effective date of the regulation.
Reasons: One of the most significant aspects of NCLB is its focus
on holding schools and LEAs accountable for the achievement of specific
student subgroups. Prior to NCLB, the overall achievement of students
in a school often masked the low achievement of certain subgroups of
students. To ensure that schools and LEAs are held accountable for the
achievement of all their students, NCLB specifically requires that
specified student subgroups must meet a State's annual measurable
objectives and other academic indicators in order for a school or LEA
to make AYP. NCLB also requires that States and LEAs report to the
public on the achievement of their student subgroups.
These disaggregation requirements are tempered by the need to
ensure statistical reliability and privacy. Thus, sections
1111(b)(2)(C)(v) and 1111(h)(1)(C) of the ESEA and current Sec. 200.7
do not require accountability determinations or reporting by student
subgroup if the size of the subgroup is too small to yield
statistically reliable results or would reveal personally identifiable
information about individual students. Current Sec. 200.7(a)(1),
therefore, requires a State to set a minimum subgroup size. A minimum
subgroup size that is too small may yield unreliable data or reveal the
identity of individual students. A minimum subgroup size, however,
should be no larger than necessary to ensure the protection of privacy
for individuals and to allow for statistically reliable results of the
aggregate performance of the students who make up a subgroup. Moreover,
the minimum subgroup size should be small enough to ensure the maximum
inclusion of student subgroups in accountability decisions, consistent
with the statutory requirements to disaggregate data.
Some have argued that the heterogeneous nature of student
populations requires a relatively large minimum subgroup size in order
to reflect accurately the achievement of students in AYP
determinations. We believe, however, that in many cases minimum
subgroup sizes are larger than is necessary to ensure statistically
reliable information; the result is that a large number of subgroups
(e.g., low-income students, students in some racial or ethnic
subgroups, LEP students, and students with disabilities) are excluded
from school-level accountability determinations.
Some estimates indicate that large minimum subgroup sizes result in
nearly 2 million students (or about 1 in every 14 test scores) not
being counted in NCLB subgroup accountability determinations at the
school level and minority students are as much as seven times more
likely than white students to have their scores excluded from school-
level AYP subgroup calculations.\1\ Under the current regulations and
statute, in order for a school to be held accountable for a student
subgroup, the number of students in that subgroup must exceed the
State-established minimum subgroup size. Logically, the larger a
State's minimum subgroup size, the less likely students will constitute
an accountability subgroup at the school level and, thus, the school
would not be held accountable for the performance of that subgroup.
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\1\ Bass, F., Ziegler Dizon, N., & Feller, B. (2006, April 18).
States Omit Minorities' School Scores. Associated Press.
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Setting minimum subgroup sizes that are statistically reliable has
been a challenge for States. This challenge may stem from the fact that
the concept of ``statistical reliability'' normally refers to the
adequacy of a sample size to produce results with enough precision to
meet the purpose of a study or report. The larger the sample drawn, the
smaller the sampling error, variability, and confidence intervals
around the estimate, and the higher the resulting precision of the
estimate. However, under NCLB, all students in the tested grades are
required to be assessed. Therefore, in the NCLB context, statistical
reliability is obtained through the requirement to test the population
of students while addressing concerns about instability of scores in
small subgroups by using a minimum subgroup size. The use of a minimum
subgroup size is not as much a ``sampling'' issue, as it is a
protection to minimize the instability of scores that may occur when
there are a small number of scores in a population. A minimum subgroup
size mitigates the instability of scores and reduces the likelihood
that an extreme score (high or low) will positively or negatively
affect the overall score for the subgroup.
There have been a number of developments in State assessment and
accountability systems since NCLB was enacted and Accountability
Workbooks were first approved. These developments have provided States
the opportunity to be more precise, consistent, and transparent in the
application of statistical reliability concepts under NCLB.
Specifically, when NCLB was enacted, most States did not yet assess all
students in grades three through eight and once in the high school
grade span as required under NCLB. Now, virtually all students in all
required grades are assessed; therefore, test scores generally reflect
actual proficiency levels of schools rather than estimates based on the
scores of students in one grade. States also have more options to
accurately assess student learning, particularly for students with
disabilities and LEP students. In addition, States have made tremendous
advances in their abilities to gather and analyze student
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achievement data. These advances help States strike a more optimal
balance between reasonable subgroup accountability and inclusion of the
maximum number of students in school-level AYP determinations.
For these reasons, the proposed regulations would require a State
to ensure that its minimum subgroup size is large enough to produce
statistically reliable information for all purposes for which
disaggregated data are used (e.g., the use of data for reporting and
making accountability decisions) yet limited to the smallest number
possible in order to maximize the inclusion of student subgroups in
accountability decisions.
Furthermore, while the proposed regulations would not require a
specific minimum subgroup size, they would require each State to revise
its Accountability Workbook to explain how the State's current or
proposed minimum subgroup size meets Sec. 200.7(a)(2)(i). A State
would also be required to explain how other elements of the State's AYP
definition (such as the use of confidence intervals, performance
indexes, and uniform averaging; the State's definition of full academic
year), in concert with the State's minimum subgroup size, affect the
statistical reliability of accountability determinations as well as
impact the inclusion of all students and student subgroups in those
determinations. States that propose large minimum subgroup sizes and
include other components in their AYP definitions that result in the
exclusion of large numbers of students or student subgroups would be
subject to close scrutiny.
The proposed regulations would also require each State to include
in its Accountability Workbook data on the number and percentage of
students and subgroups that are excluded from school-level
accountability decisions as a result of the various components of the
State's AYP definition. Making this information available through a
State's Accountability Workbook should enable the public to gain a
better understanding of how schools are being held accountable for the
performance of their students and student subgroups.
Finally, we are proposing that each State submit its Accountability
Workbook, incorporating the information required by the proposed
regulations, for technical assistance and peer review. We believe this
would be an appropriate time to again have outside experts examine all
the factors that bear on the statistical reliability of and inclusion
of students in States' accountability systems. This will help the
Department determine whether those systems are designed to produce
reliable accountability determinations that maximize the inclusion of
students and student subgroups, particularly in school-level
accountability determinations. The Department will work with the
National Technical Advisory Council that would be established under the
proposed regulations to develop appropriate guidelines for the peer
review.
Section 200.11--Participation in NAEP
Statute: Section 1111(c)(2) of the ESEA requires States to
participate in the National Assessment of Educational Progress (NAEP)
in reading and mathematics for the fourth and eighth grades as a
condition of receiving Title I funds, and section 1112(b)(1)(F) of the
ESEA requires districts, if selected, to participate in the NAEP. The
general authorization for the NAEP requirements is outlined in section
411 of the National Education Statistics Act of 1994 (20 U.S.C. 9010).
Current Regulations: Section 200.11 requires each State that
receives funds under Title I, part A of the ESEA to participate in
biennial State NAEP academic assessments of fourth and eighth grade
reading and mathematics. It also requires an LEA that receives these
funds to participate, if selected, in the State NAEP assessments.
Proposed Regulations: Proposed Sec. 200.11(c) would require a
State to report the most recent available academic achievement results
from NAEP reading and mathematics assessments on the same public report
card as it reports the results of its State assessments. It also would
require an LEA to report the State NAEP assessment data on its report
card.
Reasons: The NAEP is the only nationally representative and
continuing assessment of what America's students know and can do in
various grades and subject areas and, therefore, is an important source
of information about student achievement. We propose to require States
and LEAs to include information on NAEP scores on the same report cards
that provide data on the performance of students on State assessments
to ensure that NAEP data are easily accessible and available to parents
and the public and to provide them with a tool to compare how students
in a State are performing on the NAEP with student performance on State
assessments.
The Department recognizes that simple comparisons of student
performance on the NAEP and State assessments cannot be made without
some understanding of the key differences between the two assessments.
For example, the NAEP is not aligned with State academic content and
achievement standards and, therefore, does not necessarily reflect the
curriculum and instruction to which students are exposed in the
classroom. Therefore, the Department encourages States to provide
information to parents on how to interpret the NAEP and State data.
When the NAEP assessment information is presented in the appropriate
context, the Department believes information on how students in a State
are performing on State assessments compared to their performance on
the NAEP will provide for greater transparency and give parents another
tool to assess the education system in their State.
Section 200.19--Other Academic Indicators
Statute: Section 1111(b)(2)(C) of the ESEA outlines the specific
components that must be included in a State's definition of AYP.
Subparagraph (vi) of that section specifically provides that a State's
definition of AYP must include, in accordance with section
1111(b)(2)(D) of the ESEA, other academic indicators, and that the
other academic indicator for high schools must be the graduation rate.
(Graduation rate is generally defined in this section as the percentage
of students who graduate from secondary school with a regular diploma
in the standard number of years.) Section 1111(b)(2)(I)(i) of the ESEA
further provides that, if any group of students identified in section
1111(b)(2)(C)(v) \2\ does not meet the annual measurable objectives in
any particular year, the school, under what is commonly known as the
``safe harbor'' provision, is still considered to have made AYP for
that year if the percentage of students in that group who did not meet
or exceed the proficient level of academic achievement on the State
assessment for that year decreased by 10 percent from the previous
year, and that group made progress on one or more of the other academic
indicators.
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\2\ These groups are: (1) All public elementary and secondary
school students, (2) economically disadvantaged students, (3)
students from major racial and ethnic groups, (4) students with
disabilities, and (5) students with limited English proficiency.
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Current Regulations: Section 200.19(a)(1) of the regulations
reflects the statutory requirements and requires States to use
graduation rate as the other academic indicator for determining AYP for
high schools. Under the current regulations, States have some
flexibility in calculating graduation rates. States also have
flexibility in setting
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graduation rate goals or determining the improvement in graduation
rates needed for a school or district to make AYP. Graduation rate is
defined in the regulations as: (1) the percentage of students, measured
from the beginning of high school, who graduate from high school with a
regular diploma (not including an alternative degree, such as a General
Educational Development (GED) credential or another type of certificate
that is not fully aligned with the State's academic standards) in the
standard number of years; or (2) another definition, developed by the
State and approved by the Secretary in the State Plan, that more
accurately measures the rate of student graduation from high school
with a regular diploma. In defining graduation rate, the State must
avoid counting a dropout as a transfer.
Section 200.19(d)(1) states that a State may, but is not required
to, hold schools and LEAs accountable for achieving higher goals on its
other academic indicators, including, with respect to high schools, the
graduation rate, over the course of the timeline established by the
State under Sec. 200.15. Further, Sec. 200.20 provides that, in order
for a school or LEA to make AYP, each subgroup of students must meet or
exceed the State's annual measurable objectives and the State's goals
for the other academic indicator.
Section 200.19(d)(2)(i) requires a State to disaggregate its other
academic indicators by subgroup for purposes of reporting under section
1111(h) of the ESEA and for using the ``safe harbor'' provision to
determine AYP. Section 200.19(d)(2)(ii) states that a State need not
disaggregate those indicators for determining AYP except as provided
for in section 1111(b)(2)(C)(vii) (which permits States to establish
any other academic indicators in addition to those required under
section 1111(b)(2)(C)(vi)).
Proposed Regulations: We propose several changes to the regulations
regarding the use of high school graduation rate as the other academic
indicator for determining AYP for high schools.
Definition of graduation rate. Consistent with the definition
adopted by the National Governors Association (NGA), and agreed to by
all 50 governors in 2005, proposed Sec. 200.19(a)(1) would require
States to use a uniform and accurate method of calculating graduation
rates by defining graduation rate as the number of students who
graduate in the standard number of years with a regular high school
diploma divided by the number of students who form the ``adjusted
cohort'' for that graduating class. The ``adjusted cohort'' is the
group of students who entered the 9th grade four years earlier, and any
students who transferred into or entered the cohort in grades 9 through
12, minus any students removed from the cohort. To remove a student
from the cohort, a school or LEA would need to confirm that the student
either enrolled in another educational program that culminates in the
award of a regular high school diploma or is deceased. A student who is
retained in grade, enrolls in a GED program, or leaves school for any
other reason would remain in the adjusted cohort for the purposes of
calculating the graduation rate.
Proposed Sec. 200.19(a)(1)(i)(C)(2) would permit a State to
propose, for approval by the Secretary, an alternate definition of
``standard number of years'' that would apply to limited categories of
students who, under certain conditions, may take longer to graduate (as
is the case, for example, for a small number of students with
disabilities or students in ``early college high schools'' who earn an
associate's degree along with a high school diploma).
A State that does not have in effect a system to accurately track
transfers for calculation of the graduation rate defined in proposed
Sec. 200.19(a)(1)(i) would be required to use the averaged freshman
graduation rate (AFGR) on a transitional basis. The AFGR would be
defined as the number of high school students who graduate in the
standard number of years with a regular high school diploma divided by
the number of students in the incoming freshman class four years
earlier, which is estimated by averaging the enrollment of that
freshman class with the enrollment of that class in eighth grade the
prior year and in tenth grade the subsequent year. For any school or
district that does not have an eighth grade, the AFGR would be
estimated by averaging the enrollment of the freshman class with the
enrollment of the tenth grade class in the subsequent year. The
proposed regulations would not permit States to use the AFGR to
calculate graduation rates after 2011-2012; after 2011-2012, all States
would have to calculate graduation rates under proposed Sec.
200.19(a)(1).
Graduation rate goals and continuous and substantial improvement
measures. Proposed Sec. 200.19(d)(1) would provide two ways for States
to determine whether their schools and LEAs meet the graduation rate
component of AYP. Beginning in the 2008-2009 school year, in order for
a high school or LEA to be considered to have met the other academic
indicator for purposes of determining AYP, the school or LEA must
either (1) meet a graduation rate goal, established by the State and
approved by the Secretary that represents the rate the State expects
all high schools to achieve; or (2) demonstrate continuous and
substantial improvement from the prior year toward meeting or exceeding
that goal, as defined by the State and approved by the Secretary.
Disaggregation of graduation rates. Proposed Sec. 200.19(e)(1)
would require each State, no later than the 2012-2013 school year, to
calculate the graduation rate at the school, LEA, and State levels in
the aggregate and disaggregated by the subgroups in Sec.
200.13(b)(7)(ii) for reporting under section 1111(h) of the ESEA and
for determining AYP. Proposed Sec. 200.19(e)(2)(i) and (ii) would
require a State, prior to the 2012-2013 school year, to disaggregate
the graduation rate data at the school, LEA, and State levels for
reporting purposes and for determining ``safe harbor'' and at the LEA
and State levels for determining AYP. Table 1 shows the proposed
disaggregation requirements for determining AYP and for reporting AYP
determinations.
Table 1.--Graduation Rate Disaggregation Requirements
----------------------------------------------------------------------------------------------------------------
AFGR beginning school year 2008-2009 NGA no later than school year 2012-
---------------------------------------- 2013
---------------------------------------
Determining AYP Reporting Determining AYP Reporting
----------------------------------------------------------------------------------------------------------------
School.......................... No (except when Yes............... Yes............... Yes.
determining
``safe harbor'').
LEA............................. Yes............... Yes............... Yes............... Yes.
State........................... Yes............... Yes............... Yes............... Yes.
----------------------------------------------------------------------------------------------------------------
[[Page 22025]]
Reasons: There is an urgent need to improve America's high schools
and ensure that all students graduate from high school ready for
postsecondary instruction or the workforce. A uniform and accurate
method of calculating graduation rates is needed to raise expectations
and to hold schools, districts, and States accountable for increasing
the number of students who graduate on time with a regular high school
diploma. In addition, a uniform and accurate method of calculating high
school graduation rates will improve our understanding of the scope and
characteristics of those students dropping out of school or taking
longer to graduate.
Numerous reports and statistics from the U.S. Department of Labor
(DOL) indicate the growing importance of a high school diploma. In its
publication, America's Dynamic Workforce, DOL reported that 90 percent
of the fastest-growing jobs require some form of postsecondary
education.\3\ There also are increasing gaps in the unemployment rate
and earnings between college graduates and high school dropouts. In
2006, the unemployment rate for high school dropouts age 25 and older
was over three times the rate for college graduates (6.8 percent
compared to 2.0 percent, respectively) and over 1.5 times the rate of
individuals who had only a high school diploma (6.8 percent compared to
4.3 percent, respectively). Moreover, what DOL refers to as the
``education premium'' is increasing--in 2006, college graduates with a
bachelor's or higher degree had median weekly earnings nearly 2.5 times
greater than the typical high school dropout. Furthermore, college
graduates have experienced growth in real median weekly earnings since
1979, while high school dropouts have seen their real median weekly
earnings decline by about 20 percent.\4\
---------------------------------------------------------------------------
\3\ U.S. Department of Labor. (2007). America's Dynamic
Workforce. Washington, DC: Author. Available at: http://www.dol.gov/
asp/media/reports/workforce2007/index.htm.
\4\ Id.
---------------------------------------------------------------------------
These statistics demonstrate the critical importance of having a
high school diploma. Unfortunately, only about half of African American
and Hispanic students graduate from high school on time with a regular
high school diploma.\5\ Additionally, 15 percent of high schools in the
country are producing over half of our dropouts--and yet nearly forty
percent of these schools are making AYP because of inaccurate
graduation rate calculations and a lack of accountability for all
students.\6\
---------------------------------------------------------------------------
\5\ Belfanz, R., Legters, N., T.C. & Weber, L.M. (2007). Are
NCLB's Measures, Incentives, and Improvement Strategies the Right
One's for the Nation's Low-Performing High Schools? American
Educational Research Journal, 44(3), 559-593.
\6\ Id.
---------------------------------------------------------------------------
Because the current regulations allow States latitude in
determining how graduation rates are measured, the accuracy of State-
calculated graduation rates varies considerably. Many States use some
form of a ``completer rate'' (multiplication of dropout rates in each
academic year) as their graduation rate. This rate has been shown to
overestimate significantly high school graduation rates. The National
Center for Education Statistics (NCES) calculated the AFGR for all
States and compared the State-reported graduation rates to the AFGR.
This analysis, published in the National Assessment of Title I Interim
Report, shows that in some cases there is nearly a 30-point difference
between a State's reported graduation rate and its AFGR.\7\
---------------------------------------------------------------------------
\7\ Stullich, S., Eisner, E., McCrary, J., & Roney, C. (2006).
National Assessment of Title I Interim Report to Congress: Volume I:
Implementation of Title I. Washington, DC: U.S. Department of
Education, Institute of Education Sciences. Available at: http://
www.ed.gov/rschstat/eval/disady/titlelinterimreport/voll.pdf.
---------------------------------------------------------------------------
The requirements States have established for determining whether a
high school makes AYP with respect to its graduation rate also vary.
One State, for example, has set its goal at 50 percent; another has set
its goal at 95 percent. In addition, more than one-half of States
accept any improvement or some established minimal improvement (e.g.,
0.1 percent from the previous year) in their high school graduation
rate to count as making AYP. In several States, a school can graduate
less than half of its students, year after year, and still make AYP by
graduating one more student with a regular high school diploma than it
did in the previous year.
The proposed regulations would revise current regulations to
require the use of a uniform and accurate method of calculating high
school graduation rates and would require schools and districts to
either meet a State-established goal that has been approved by the
Secretary or demonstrate continuous and substantial improvement from
the prior year toward meeting or exceeding that goal. These changes are
intended to increase the transparency and accuracy of graduation rates
and strengthen accountability for the achievement of high school
students. Following is the rationale for each of these changes.
Definition of graduation rate. A uniform and accurate method of
calculating high school graduation rates is necessary in order to
provide parents and the public with important information about the
success of a school, district, and State in graduating students in the
standard number of years and to ensure that AYP determinations are
based on valid graduation rate calculations.
There is now a broad consensus about how to define the graduation
rate. In August 2006, NCES released a report synthesizing the
recommendations of a panel of experts on graduation rate
calculations.\8\ The panel recommended that the standard graduation
rate measure on-time completion of a regular diploma within four years
and not include GED recipients or students without documentation of
transferring to another educational program that terminates in the
award of a regular high school diploma (e.g., documented through
receipt of a transcript). Additionally, the NGA Task Force on High
School Graduation Rate Data had as its lead recommendation that all
States immediately adopt and begin taking steps to implement a standard
four-year, adjusted cohort graduation rate, consistent with that
proposed by the NCES panel (the ``NGA rate''), which 50 governors
agreed to adopt in 2005.\9\ The proposed regulations offer a uniform
and accurate method of calculating graduation rates that reflects this
broad consensus in the field.
---------------------------------------------------------------------------
\8\ Seastrom, M., Chapman, C., Stillwell, R., McGrath, D.,
Peltola, P., Dinkes, R., & Xu, Z. (2006). User's guide to Computing
High School Graduation Rates. Washington, DC: U.S. Department of
Education, National Center for Education Statistics.
\9\ National Governors Association. (2006). Graduation Counts: A
Report of the National Governors Association Task Force on High
School Graduation Rate Data. Washington, DC: Author.
---------------------------------------------------------------------------
To calculate the NGA rate, States need a system of documenting
transfers as well as four years of data, or the equivalent of one full
cohort. For States that do not yet have the ability to accurately track
student transfers, NCES recommended using the AFGR as an interim
measure. The AFGR estimates the effect of transfers into and out of a
cohort of students and can be calculated with data currently available
to States. It has been shown to be a reliable, accurate estimate of the
high school graduation rate.
The proposed regulations would provide time for States to
transition to using the new definition of graduation rate. This
transition period would allow all States sufficient time to develop a
system for documenting transfers for one full cohort and subsequently
to calculate the NGA rate. By 2012-2013, however, all States would be
required to
[[Page 22026]]
use the more rigorous definition of graduation rate in proposed Sec.
200.19(a)(1).
Graduation rate goals and continuous and substantial improvement
measures. While some States only allow for schools to make AYP if a
State-established goal is met, most States allow any improvement from
the previous year or some established minimal improvement (ranging from
0.1 percent to 2.0 percent) for a school to demonstrate it has met AYP;
one State simply requires schools to maintain the prior year's rate.
Furthermore, many States have established low graduation rate goals
(e.g., 50 percent) that are considered the threshold for AYP
determinations--a school or LEA must meet that threshold in order to be
considered to have made AYP and no improvement above that threshold is
required. These methods of determining whether a school or LEA meets
the graduation rate component of AYP represent exceptionally low
expectations and demonstrate the need for States to establish
graduation rate goals that are more rigorous. Accordingly, Sec.
200.19(d) would require a State to establish a graduation rate goal
that it expects all high schools to eventually achieve and to establish
requirements for demonstrating continuous and substantial improvement
toward meeting or exceeding that goal, in order to make AYP. Given the
ever-increasing importance of a high school diploma, allowing schools
and LEAs with unacceptably low rates of graduation to make AYP by
simply maintaining the same low rate or minimally increasing the number
of graduates from the previous year does not provide for appropriate
and meaningful accountability.
Disaggregation of graduation rates. When the current regulations
were written in 2002, the Department believed that permitting States to
use aggregate graduation rate data for the purpose of determining AYP
while requiring disaggregation for reporting would be sufficient to
ensure school accountability for the achievement of all groups of
students and would avoid overburdening State accountability systems.
Six years later, we now know that simply reporting disaggregated
graduation rate data is not sufficient to ensure that graduation rates
improve for all students. As previously highlighted, too many schools
are graduating too few students and not being held accountable for
improving their performance in this important area. Moreover, it is
evident that there are significant disparities in high school outcomes.
For example, data provided by NCES show significant gaps in subgroup
AFGR graduation rates. Data from the 2004-2005 school year show the
average AFGR for white students is 80.4 percent, whereas the average
AFGR for Hispanic, black, and Native American/Alaska Native students is
64.2 percent, 60.3 percent, and 67.2 percent, respectively.\10\ With
these figures, it is clear that disaggregated graduation rate data
should be used for purposes of determining whether a high school or LEA
makes AYP. Similar to the importance of disaggregating assessment
results to ensure that high performance by a particular group of
students does not mask low performance by another group of students,
schools need to be held accountable for the differences in high school
graduation rates among various groups of students.
---------------------------------------------------------------------------
\10\ National Center for Education Statistics. (2008). Averaged
Freshman Graduation Rates for Public School Students, 2004-05.
Unpublished data.
---------------------------------------------------------------------------
For these reasons, the proposed regulations would require, by the
2012-2013 school year, all States to include disaggregated graduation
rates in State-, district-, and school-level AYP decisions. The
Department, however, recognizes that, while disaggregated AFGR results
are valid at the State and district levels, there is less confidence in
the validity of disaggregated AFGR results at the school level.
Therefore, beginning with the effective date of this regulation, States
would be required to use disaggregated results for reporting and
determining AYP at the State and district levels, but would only be
required to use school-level disaggregated results for reporting
purposes and determining AYP under the ``safe harbor'' provision.
Beginning in 2012-2013, when all States would have to use the NGA
graduation rate, disaggregated results would also be required in
school-level AYP determinations.
Section 200.20--Making Adequate Yearly Progress
Statute: Section 1111(b)(2) of the ESEA sets out the requirements
for calculating AYP, which is a measure of the percentage of students
who are proficient in a school, LEA, and State. The AYP calculation
method commonly referred to as a ``status model'' compares the
achievement of one cohort of students against the test scores of the
students in the previous year's class. Although Title I allows AYP to
be determined using student progress with the ``safe harbor''
provision, the proficiency gains measured in that calculation do not
look at individual student growth--it is still a cohort comparison.
Currently, nine States are participating in a ``growth model'' pilot
and are permitted to report their accountability results using measures
of individual student growth that have been approved by the Department.
North Carolina and Tennessee first used measures of individual student
growth for the 2005-2006 school year; Alaska, Arizona, Arkansas,
Delaware, Florida, and Iowa reported growth scores for the first time
for the 2006-2007 school year.\11\
---------------------------------------------------------------------------
\11\ Ohio has received conditional approval, but has not yet
implemented its proposal due to delayed State legislative changes
necessary for implementation.
---------------------------------------------------------------------------
Current Regulations: Section 200.20 implements the statutory
requirements for determining AYP.
Proposed Regulations: Proposed Sec. 200.20(h) would establish the
criteria that a State must meet in order for the Secretary to permit a
State, under the waiver authority of section 9401 of the ESEA, to
establish and implement policies for incorporating individual student
academic progress into the State's definition of AYP. A State that
desires to incorporate individual student academic growth into its
definition of AYP would be required to--
(a) Set annual growth targets that--
(1) Lead to all students, by school year 2013-2014, meeting or
exceeding the State's proficient level of academic achievement on the
State assessments under Sec. 200.2;
(2) Are based on meeting the State's proficient level of academic
achievement on the State's assessments under Sec. 200.2 and are not
based on individual student background characteristics; and
(3) Measure student achievement separately in mathematics and
reading/language arts;
(b) Ensure that all students who are tested using the State's
assessments under Sec. 200.2 are included in the State's assessment
and accountability systems;
(c) Hold all schools and LEAs accountable for the performance of
all students and the student subgroups described in Sec.
200.13(b)(7)(ii);
(d) Be based on State assessments that--
(1) Produce comparable results from grade to grade and from year to
year in mathematics and reading/language arts;
(2) Have been in use by the State for more than one year; and
(3) Have received full approval from the Secretary before the State
determines AYP based on student academic growth;
[[Page 22027]]
(e) Track student progress through a State-developed data system;
(f) Include, as separate factors in determining whether schools are
making AYP for a particular year--
(1) The rate of student participation in assessments; and
(2) Other academic indicators as described in Sec. 200.19; and
(g) Describe how the proposed annual growth targets fit into a
State's accountability system in a manner that ensures that the system
is coherent and that incorporating individual student academic growth
into a State's definition of AYP does not dilute accountability.
With the additions proposed in these regulations, a State could
permit its LEAs and schools to make AYP by meeting (1) the State's
proficiency targets, (2) growth targets, or (3) the ``safe harbor''
provision.
A State's proposal to incorporate student academic growth in the
State's definition of AYP will be peer reviewed under section
1111(e)(2) of the ESEA.
Reasons: There is general consensus among teachers, administrators,
researchers, and advocates that States should be permitted to include
measures of individual student academic progress (that is, to use what
is often described as a ``growth model'') when determining whether a
school or district is making AYP. When NCLB was signed into law in
2002, few States had the data capacity to calculate individual student
academic progress. With all States now testing annually in grades 3
through 8 and once in high school coupled with improved data systems in
many States, States have a greater capacity to measure individual
student academic progress. The Department believes that allowing States
to include accurate measures of individual student academic progress in
AYP calculations will still hold schools accountable for the
achievement of all students to State academic achievement standards,
while providing schools and teachers with useful information on how
their students are progressing towards grade-level proficiency, which
can ultimately lead to better instruction. Under these proposed
regulations and section 9401 of the ESEA, therefore, schools and LEAs
in States that incorporate individual student academic growth into
their definition of AYP would be held accountable for improving
individual students' achievement from one school year to the next. We
encourage States that decide to incorporate individual student growth
into their accountability systems to include in their data systems a
teacher identifier to help track student achievement and teacher
performance by class assignment. While not a condition of incorporating
individual student academic growth into a State's definition of AYP,
inclusion of a teacher identifier will create a much richer set of data
to guide school improvement efforts.
Section 200.22--National Technical Advisory Council
Statute: Section 1111(e) of the ESEA requires the Secretary to
establish a peer review process to assist in the review of State Plans.
Current Regulations: There are no current regulations related to
this statutory requirement.
Proposed Regulations: The proposed regulations in Sec. 200.22
would require the establishment of a National Technical Advisory
Council (National TAC) to advise the Secretary on key technical issues
related to State standards, assessments, and accountability systems
that are part of State plans. The National TAC would not replace the
peer review panels the Department uses to evaluate State standards,
assessments, and accountability systems. Rather, the National TAC would
consider complex issues that affect all States, as well as issues that
would benefit from discussions with experts in the field. For example,
the National TAC could help create guidelines for how States should
determine an appropriate minimum subgroup size, taking into
consideration other elements of States' AYP definitions, as we have
proposed in Sec. 200.7.
Under the proposed regulations, the Secretary would solicit
nominations from the public for experts in the fields of assessment
design and implementation, and the field of accountability to serve on
the National TAC. The proposed regulations provide that, from these
nominations, the Secretary would select 10 to 15 National TAC members.
The National TAC could meet as a whole or in subcommittees.
Reasons: The Department currently uses experts in the fields of
assessment and accountability to review State standards, assessments,
and accountability systems. During the course of reviewing State Plans,
these experts, as well as States, have raised a number of complex
issues (e.g., the appropriate use of confidence intervals and indexes,
and the alignment of alternate assessments with alternate academic
achievement standards). Advice from a National TAC consisting of
experts with knowledge in the fields of educational standards,
assessments, accountability systems, statistics, and psychometrics
would help the Department address these complex and technical issues.
Just as States have established State technical advisory committees to
advise them on the development and implementation of their State
standards, assessments, and accountability systems, the Department
believes that regular access to a group of experts would benefit the
Department, States, and, ultimately, students in ensuring that State
standards and assessments are of the highest technical quality and that
State accountability systems hold schools and districts accountable for
the achievement of all students.
Sections 200.32 and 200.50(d)(1)--Identification of Schools and LEAs
for Improvement
Statute and Current Regulations: Section 1116(b)(1)(A) of the ESEA
and Sec. 200.32(a)(1) require an LEA to identify a school for
improvement if it does not make AYP, ``as defined * * * under section
1111(b)(2),'' for two consecutive years. Section 1116(c)(3) of the ESEA
and Sec. 200.50(d)(1) contain a similar requirement for identifying
LEAs for improvement.
Under section 1111(b)(2)(I) of the ESEA and Sec. 200.20, a school
or LEA makes AYP if: (1) All students and each subgroup of students
under Sec. 200.13(b)(7)(ii) meet or exceed the State's separate annual
measurable objectives (AMOs) for reading/language arts and math, (2)
the school or LEA meets or exceeds the State's other academic
indicators, and (3) not less than 95 percent of all students and those
in each subgroup identified in Sec. 200.13(b)(7)(ii) take the State's
assessments. A school or LEA may also make AYP through the ``safe
harbor'' provisions described previously in this notice.
Under current policy, the Department permits the identification of
schools and LEAs for improvement if the school or LEA did not make AYP
because it did not meet the AMO in the same subject or academic
indicator for two consecutive years. So, for example, if a school did
not make AYP because it did not meet the AMO for math for two
consecutive years, the school would be identified for improvement. On
the other hand, if a school, in the first year, did not make AYP
because it did not meet the AMO in math but met the AMO in reading/
language arts, and then, in the second year, did not make AYP because
it did not meet the AMO in reading/language arts but met the AMO in
math, that school would not be identified for improvement.
[[Page 22028]]
The Department, however, does not permit an LEA or a State to limit
the identification of schools and LEAs for improvement to only those
schools and LEAs that did not make AYP because the same subgroup did
not meet the AMO in the same subject or meet the same other academic
indicator for two consecutive years. So, for example, if a school, in
the first year, did not make AYP because the students with disabilities
subgroup did not meet the AMO in math, and then, in the second year,
the school did not make AYP because the LEP students subgroup did not
meet the AMO in math, the LEA must identify that school for
improvement. In this example, identification for improvement is based
on not meeting the AMO in the same subject, math, not on whether the
same subgroup did not meet the AMO.
Proposed Regulations: We are proposing to codify the Department's
current policy in Sec. Sec. 200.32 and 200.50(d). Proposed Sec.
200.32 would provide that, in identifying a school for improvement, an
LEA may base identification on whether the school did not make AYP
because it did not meet the AMO in the same subject or meet the same
other academic indicator for two consecutive years. The LEA may not,
however, limit such identification to those schools that did not make
AYP only because they did not meet the AMO in the same subject or meet
the same other academic indicator for the same subgroup under Sec.
200.13(b)(7)(ii) for two consecutive years. Comparable changes with
respect to the identification of LEAs for improvement would be made in
proposed Sec. 200.50(d)(1).
Reasons: We are proposing to codify our current policy in order to
establish clear parameters for LEAs and States to use when identifying
schools and LEAs for improvement. We believe the current policy and
proposed regulatory changes are consistent with section 1111(b)(2)'s
emphasis on proficiency in separate subjects and requiring separate
participation rates for math and reading/language arts assessments for
purposes of determining AYP, as well as the absence of any similar
authority for emphasizing subgroups.
Section 1111(b)(2)(E) of the ESEA clearly acknowledges that student
achievement in reading and math in a State may start at very different
points and, when they do, different trajectories need to be established
for each subject toward the goal of 100 percent proficiency by 2013-
2014. Similarly, section 1111(b)(2)(G) of the ESEA requires a State to
set different AMOs in math and reading. Participation rates, likewise,
must be calculated separately because a student could participate in
one, both, or neither of the State's mathematics and reading/language
arts assessments. Accordingly, it follows that a State may take into
consideration in identifying a school or LEA for improvement the fact
that the school or LEA did not meet its AMO in the same subject
(including the participation rate for that subject) or meet the same
other academic indicator for two consecutive years.
There is no similar basis for identifying for improvement a school
or LEA only when the same subgroup did not meet the AMO in the same
subject or the same other academic indicator for two consecutive years.
Although section 1111(b)(2) of the ESEA requires a State to establish
separate AMOs for each subject, it requires a State to apply those AMOs
to each subgroup in determining whether a school or LEA makes AYP. In
addition, section 1111(b)(2)(I)(i) of the ESEA provides that, for a
school or LEA to make AYP, ``all students'' and each subgroup must meet
or exceed the AMOs. Based on these provisions, the ESEA does not
authorize limiting the identification of a school or LEA for
improvement to instances when the school or LEA did not make AYP for
two consecutive years only because the same subgroup did not meet the
AMO for the same subject or the same other academic indicator.
Identifying a school or LEA in this manner would be inconsistent with
the ESEA's accountability provisions, which require that each subgroup
meet the State's AMOs in each subject each year.
Section 200.37--Notice of Identification for Improvement, Corrective
Action, or Restructuring
Statute: Section 1116(b)(1)(A) of the ESEA requires LEAs to
identify for improvement any Title I school that fails to make AYP for
two consecutive years. The identification must occur before the
beginning of the school year following the school's failure to make AYP
(section 1116(b)(1)(B)). Section 1116(b)(6) of the ESEA requires an LEA
to promptly notify parents of students enrolled in a school identified
for improvement, corrective action, or restructuring and to provide
them with information regarding what it means to be identified for
improvement, corrective action, or restructuring, including an
explanation of the parents' option to transfer their child to another
public school or the option to obtain SES for the student. Section
1116(b)(1)(E) requires LEAs to provide students enrolled in a school
identified for improvement, corrective action, or restructuring with
the option to transfer to another school not later than the first day
of the school year following such identification. Section 1116(e)(2)(A)
requires LEAs with schools in the second year of improvement, in
corrective action, or in restructuring to provide, at a minimum, annual
notice to parents of the availability of SES, the identity of approved
SES providers of those services that are within the LEA or whose
services are reasonably available in neighboring LEAs, and a brief
description of the services, qualifications, and demonstrated
effectiveness of each of those providers.
Current Regulations: Section 200.37(b)(4) and (b)(5) implement the
statutory requirements for LEAs to provide notice to parents of public
school choice and SES options, respectively.
Proposed Regulations: Proposed Sec. 200.37(b)(4)(iv) would require
that LEAs provide to parents an explanation of the available school
choices sufficiently in advance of, but no later than 14 calendar days
before, the start of the school year, so that parents have adequate
time to exercise their choice option before the school year begins.
Proposed Sec. 200.37(b)(5)(ii)(C) would require that the annual
notice of the availability of SES explain the benefits of receiving
SES, in addition to the identity of approved providers of those
services available within the LEA and a brief description of the
services, qualifications and demonstrated effectiveness of the
providers, as provided in current regulations. Proposed Sec.
200.37(b)(5)(iii) would require this notice to be clear and concise and
clearly distinguishable from the other information sent to parents
under Sec. 200.37.
Reasons: The importance of notifying parents of their public school
choice options in advance of the start of the school year is documented
by findings from the National Assessment of Title I (NATI) report
(2007). In a survey of LEAs described in this report, those that
notified parents about their public school choice options before the
first day of school had higher participation rates in public school
choice than LEAs that notified parents on or after the first day of
school. Yet, only 29 percent of the LEAs that were required to offer
public school choice notified parents before the beginning of the
school year. Twenty-one percent notified parents at the start of the
school year, and 49 percent notified parents after the start of the
school year.\12\
---------------------------------------------------------------------------
\12\ Stullich, S., Eisner, E., & McCrary, J. (2007). National
Assessment of Title I: Final Report, Volume I: Implementation.
Washington, DC: National Center for Education Evaluation and
Regional Assistance, Institute of Education Sciences, U.S.
Department of Education.
---------------------------------------------------------------------------
[[Page 22029]]
We know that transferring one's child to another school is an
important decision for a parent to make and therefore, it is critical
that LEAs provide parents as much advance notice as possible so that
they have time to make informed decisions. We also know from the NATI
report that parents are more likely to take advantage of their choice
options if they are notified in advance of the school year. However,
early parent notification may be constrained by several factors,
including the time it takes for States to receive students' scores on
the State's annual assessment and the time needed to determine whether
a school has made AYP based on the students' test scores and the other
components of the State's AYP definition (e.g., definition of full
academic year, indexes, ``safe harbor''). Further, the Department
understands that it is in the best interest of students to have as much
time in the school year as possible to learn the content before taking
the State's annual assessment.
The Department recognizes that the importance of giving parents the
time they need to make decisions regarding their choice option must be
balanced by these practical realities of making AYP determinations.
Notifying parents as far in advance as possible, but no later than 14
days before the start of the school year, strikes a reasonable balance
among these various timing and practical considerations. We also
believe that by allowing more time for parents to consider their choice
options, there will be greater interest and participation in public
school choice.
The NATI report also found that, in 2004-2005, 94 percent of LEAs
reported sending parents written notification materials regarding SES
options; however in a survey of eligible parents in eight urban school
districts, only 53 percent of parents with a child eligible for SES
said they had been notified.\13\ Additionally, the NATI report found
that the quality of LEAs' parent notification letters varied
considerably. Specifically, the NATI report looked at 20 parent letters
about SES and found that some were easy to read and described SES
options in a positive manner, while others were confusing and
incomplete, and discouraged the use of SES.\14\ The proposed
regulations regarding the SES notice would help ensure that LEAs
promptly communicate to parents information on SES, and that parents
are aware of their SES options and the benefits of those services.
---------------------------------------------------------------------------
\13\ Id.
\14\ Id.
---------------------------------------------------------------------------
Section 200.39--Responsibilities Resulting From Identification for
School Improvement
Statute: Section 1116(b) of the ESEA states that an LEA must
identify for school improvement any elementary or secondary school that
fails, for two consecutive years, to make AYP. Specifically, LEAs with
Title I schools identified for improvement are responsible for
providing public school choice to eligible students (section
1116(b)(1)(E)), consulting with identified schools as they develop a
school improvement plan (section 1116(b)(3)), and ensuring the
provision of technical assistance as the school develops and implements
the school improvement plan (section 1116(b)(4)). For Title I schools
in their second year of improvement, the LEA must continue with these
actions and, in addition, make SES available to eligible students.
Current Regulations: Section 200.39 implements the statutory
requirements regarding LEAs' responsibilities for Title I schools
identified for improvement.
Proposed Regulations: Proposed Sec. 200.39(c) would require LEAs
to provide the public with information regarding the LEA's
implementation of the public school choice and SES requirements, as
soon as this information becomes available. LEAs would be required to
prominently display the following information on the LEA's Web site:
Beginning with data from the 2007-2008 school year and for
each subsequent school year, the number of students who were eligible
for and the number of students who participated in public school
choice.
Beginning with data from the 2007-2008 school year and for
each subsequent school year, the number of students who were eligible
for and the number of students who participated in SES.
For the current school year, a list of SES providers
approved by the State to serve the LEA and the locations where services
are provided.
For the current school year, a list of available schools
that are offered to students eligible to participate in public school
choice.
Reasons: We believe that making information regarding an LEA's
implementation of the public school choice and SES requirements
available and transparent to the public would hold LEAs accountable for
implementing these requirements and lead to greater student
participation. In addition, information on the SES providers approved
to serve students in the LEA and the available schools that are offered
to students eligible to participate in public school choice would help
parents make informed choices for their children. An LEA's Web site is
one way for LEAs to make information on public school choice and SES
widely available because these sites can be easily updated with the
latest information and are a medium that can be accessed anytime and
anywhere by individuals and entities. For parents without access to the
Internet, LEAs and community organizations would be encouraged to make
this information available to parents through other avenues.
Section 200.43--Restructuring
Statute: Under section 1116(a)(7) of the ESEA, if any school served
by an LEA does not make AYP by the end of the second full school year
after having been identified for improvement, the LEA must identify the
school for corrective action and take one of several specific
corrective actions. These may include replacing school staff and
instituting a new curriculum. If, after one full school year of
corrective action, a school continues not to make AYP, the LEA must
identify the school for restructuring and implement a restructuring
plan under section 1116(b)(8)(A) of the ESEA. In addition to
implementing a restructuring plan, the LEA must continue to provide SES
and public school choice to eligible students.
Section 1116(b)(8)(B) of the ESEA sets forth the requirements for
implementing restructuring plans and requires that, not later than the
beginning of the school year following the year in which an LEA
implements restructuring, the LEA must implement one of the following
alternative governance arrangements for the school consistent with
State law:
(i) Reopen the school as a public charter school;
(ii) Replace all or most of the school staff (which may include the
principal) who are relevant to the failure to make AYP;
(iii) Enter into a contract with an entity, such as a private
management company with a demonstrated record of effectiveness, to
operate the public school;
(iv) Turn the operation of the school over to the SEA, if permitted
under State law and agreed to by the State; or
(v) Any other major restructuring of the school's governance
arrangement that makes fundamental reforms, such as significant changes
in the school's staffing and governance, to improve
[[Page 22030]]
student academic achievement in the school, and that has substantial
promise of enabling the school to make AYP.
Current Regulations: Section 200.43 of the current regulations, for
the most part, restates the statutory language. The regulations also
clarify that a school must continue to implement its restructuring plan
until it has made AYP for two consecutive years.
Proposed Regulations: The proposed regulations would make several
clarifying changes. First, we propose to move the parenthetical in
current Sec. 200.43(a)(1) that provides examples of fundamental
reforms to proposed Sec. 200.43(b)(3)(v) to better track the statutory
language in section 1116(b)(8)(B)(v) of the ESEA. Second, proposed
Sec. 200.43(a)(4) would clarify that interventions implemented as part
of a school's restructuring plan must be significantly more rigorous
and comprehensive than those interventions implemented under the
school's corrective action plan as required under Sec. 200.42. Third,
proposed Sec. 200.43(a)(5) would require that an LEA implement
interventions that address the reasons for the school's being in
restructuring in order to enable the school to exit restructuring as
soon as possible. Fourth, the proposed regulations would revise Sec.
200.43(b)(3)(ii) to clarify that, in replacing all or most of the
school staff, an LEA may also replace the principal; however, replacing
the principal alone would not be sufficient to constitute
restructuring. Finally, in addition to the proposed change to track
more closely the language in section 1116(b)(8)(B)(v) of the ESEA,
proposed Sec. 200.45(b)(3)(v) would clarify again that, in making
significant changes in the school's staff, an LEA may not replace only
the principal.
Reasons: Based on available data, the Department is concerned that
the restructuring requirements in Sec. 200.43 are not being
implemented effectively, and in some cases not at all. Preliminary
analyses of Department data from 36 States indicate that only
approximately 18 percent of schools that were identified for
restructuring in either the 2004-2005 or 2005-2006 school year have
exited restructuring status.\15\ In addition, a recent study from the
Government Accountability Office (GAO) found that 40 percent of schools
in restructuring did not implement any of the five restructuring
options.\16\
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\15\ U.S. Department of Education. (2008). EDFacts. Unpublished
raw data.
\16\ U.S. Government Accountability Office. (2007). No Child
Left Behind Act: Education Should Clarify Guidance and Address
Potential Compliance Issues for Schools in Corrective Action and
Restructuring Status (GAO-07-1035). Washington, DC: Author.
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The Department needs to address these issues because a large number
of schools could potentially enter restructuring in the next few years.
For the 2006-2007 school year, 2,330 schools were identified for
corrective action, 937 schools were identified for restructuring after
not meeting AYP for five years, and 1,242 schools began implementing
their restructuring plans after not meeting AYP for six years. It is
important to make these proposed regulatory changes at this time in
order to strengthen the restructuring requirements and thereby help
schools to exit restructuring as soon as possible.
Although rigorous research is limited on what restructuring
interventions are most effective and under what conditions,
correlational and descriptive studies indicate that more than one
reform should be implemented in a school, rather than relying on one
``silver bullet'' to address the significant academic needs of a school
that has not made AYP for six or more years. For example, a study of
restructuring in Michigan conducted by the Center on Education Policy
(CEP) found, in general, that multiple reform efforts tailored to the
needs of the schools were more likely to result in the schools' making
AYP and exiting restructuring.\17\
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\17\ Scott, C. (2007). What Now? Lessons from Michigan About
Restructuring Schools and Next Steps Under NCLB. Washington, DC:
Center for Education Policy.
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To strengthen the requirements for schools in restructuring, we are
proposing to clarify, consistent with the statute, that the actions
taken by a school identified for restructuring must (1) be
significantly more rigorous and comprehensive than those the school
implemented as corrective actions and (2) address the reasons for the
school's being identified for restructuring. Schools that have been
identified for restructuring are in that status because they have
continually not made AYP, notwithstanding the reforms undertaken when
the school was in improvement or corrective action. Simply continuing
the same actions that were unsuccessful in moving the school out of
improvement or corrective action is unlikely to be sufficient to move
the school out of restructuring. Restructuring requires actions that
are more comprehensive and rigorous than those the school took when the
school was in improvement or corrective action status.
Consistent with the need for more comprehensive and rigorous
actions when a school is in restructuring, we also are proposing to
clarify that, when a State, as part of its restructuring plan, chooses
to make significant changes in the school's staff, these changes may
include, but may not be limited to, replacing the principal. While we
believe that it is important to place the right leader in a chronically
under-performing school, as permitted in current Sec. 200.43, simply
replacing the principal without any other changes is inconsistent with
the statute and likely insufficient to move a school out of
restructuring.
Just as we would not expect that continuing the same actions that
were instituted when a school was in improvement or corrective action
would move the school out of restructuring, we also would not expect a
school to be able to make sufficient gains to exit restructuring if the
interventions do not address the specific reasons that the school
continues not to make AYP. For example, if a school is in restructuring
because either the ``all students'' group or subgroups that comprise a
large percentage of its students have not made AYP for six years, a
restructuring plan that addresses only a subset of the students would
not be likely to move a school out of restructuring; rather, the
restructuring plan would need to be broader in scope and address the
needs of the majority of students.
Section 200.44--Public School Choice
Statute: Section 1116(b)(1)(E) requires LEAs to provide students
enrolled in a school identified for improvement, corrective action, or
restructuring with the option to transfer to another school not later
than the first day of the school year following such identification.
Current Regulations: Section 200.44 provides that if an LEA
identifies a school for improvement, corrective action, or
restructuring, the LEA must provide all students attending the school
with the option to transfer to another public school served by the LEA.
An LEA must offer this option to parents not later than the first day
of the school year following the year in which the LEA administered the
assessment that resulted in its identification of the school for
improvement, corrective action, or restructuring.
Proposed Regulations: Proposed Sec. 200.44(a)(2)(ii) would
reference proposed Sec. 200.37(b)(4) to make clear that an LEA must
notify parents about the option to transfer their child to another
school and the available public school choices sufficiently in advance
of, but no later than 14 calendar days before, the start of the school
year so that parents have adequate time to exercise their choice option
before the school year begins.
Reasons: Reiterating in the public school choice section of the
regulations
[[Page 22031]]
that notice to parents of the availability of public school choice must
occur in a timely manner, consistent with proposed Sec.
200.37(b)(4)(iv), would help ensure that LEAs understand that they must
notify parents about their public school choice options sufficiently in
advance of the start of the school year so that parents have sufficient
time to consider their options and make an informed decision.
Section 200.47--SEA Responsibilities for Supplemental Educational
Services
Statute: Section 1116(e)(1) of the ESEA requires LEAs to arrange
for the provision of SES to eligible students from a provider with a
demonstrated record of effectiveness. A provider is defined in section
1116(e)(12)(B) as a non-profit entity, for-profit entity, or LEA that
(1) has a demonstrated record of effectiveness in increasing student
academic achievement; (2) is capable of providing SES that are
consistent with the instructional program of the LEA and the academic
standards described in section 1111 of the ESEA; and (3) is financially
sound. Section 1116(e)(3)(A) of the ESEA requires an LEA to develop,
with the parents of a child participating in SES and the provider, an
agreement that includes a statement of specific achievement goals for
the student, a description of how the student's progress will be
measured, and a timetable for improving achievement. Section
1116(e)(3)(C) also requires that this agreement be terminated if the
provider is unable to meet the goals and timetables specified in the
agreement.
Section 1116(e)(4)(B) of the ESEA requires States to develop and
apply, in the selection of providers, objective criteria that are based
on a demonstrated record of effectiveness in increasing the academic
proficiency of students in subjects relevant to meeting the State's
academic content and student achievement standards. Section
1116(e)(4)(D) requires States to develop, implement, and publicly
report on standards and techniques for monitoring the quality and
effectiveness of the services offered by approved providers and for
withdrawing approval from providers that fail, for two consecutive
years, to contribute to increasing the academic proficiency of students
served. Section 1116(e)(5)(B) requires providers to ensure that their
instructional program is consistent with the instruction provided and
content used by the LEA and State, and that it is aligned with State
student academic achievement standards.
Current Regulations: Section 200.47 repeats the statutory
requirements regarding the State's responsibility to approve SES
providers with a demonstrated record of effectiveness, and to develop
and apply objective criteria to monitor and withdraw approval of
providers. Section 200.47 also requires that, to be approved by an SEA,
the provider must agree to ensure that the instruction the provider
gives and the content the provider uses are consistent with the
instruction provided and the content used by the LEA and the SEA, and
are aligned with State student academic achievement standards.
Proposed Regulations: We propose several changes to the regulations
regarding SEA responsibilities for SES.
Monitoring LEA implementation. Proposed Sec. 200.47(a)(4)(iii)
would require a State to develop, implement, and publicly report on
standards and techniques for monitoring LEAs' implementation of the SES
requirements in the ESEA.
Approving SES providers. Proposed Sec. 200.47(b)(2)(ii) would
clarify that, to be approved as an SES provider, an entity must provide
the State with evidence that the instruction it would provide and the
content it would use are aligned with the State's academic content and
student academic achievement standards and are research-based. Proposed
Sec. 200.47(b)(3) would require that, as a condition of approval, a
State must consider, at a minimum, (1) information from the provider on
whether the provider has been removed from any State's approved
provider list; (2) parent recommendations or results from parent
surveys, if any, regarding the success of the provider's instructional
program in increasing student achievement; and (3) evaluation results,
if any, demonstrating that the instructional program has improved
student achievement.
Monitoring approved providers. Proposed Sec. 200.47(c) would
specify the evidence that a State must consider when monitoring the
quality and effectiveness of the services offered by an approved
provider in order to inform the renewal or withdrawal of approval of a
provider. Specifically, Sec. 200.47(c) would require a State to
examine, at a minimum, evidence that the provider's instructional
program (1) is consistent with the instruction provided and the content
used by the LEA and SEA; (2) addresses students' individual needs as
described in students' SES plans; (3) has contributed to increasing
students' academic proficiency (as required by section 1116(e)(4)(D));
and (4) is aligned with State academic content and student academic
achievement standards. In addition, States would also be required to
consider, if any, parent recommendations, results from parent surveys,
or results from other evaluations demonstrating the success of the
provider's instructional program in improving student achievement.
Reasons: We believe that providing information to the public about
how SEAs monitor the implementation of SES requirements by their LEAs,
and enhancing the criteria that SEAs must use to approve and monitor
SES providers, would strengthen the implementation of SES by SEAs and
LEAs and ultimately contribute to increased student achievement.
Following is the rationale for each of these changes.
Monitoring LEA implementation. While SEAs are required under the
current regulations to monitor LEAs and their implementation of the SES
requirements, the proposed regulations would require SEAs to publicly
report on the standards and techniques for how they monitor their LEAs'
implementation of the SES requirements. We believe that requiring
States to develop, implement, and publicly report on the criteria they
use to monitor LEAs' implementation of SES will help ensure that SEAs
set rigorous and clear expectations for their LEAs.
Approving SES providers. We have learned in discussions with States
that there is uncertainty regarding the evidence that States may
require providers to submit as part of their application to be an
approved SES provider. We believe that specifying the minimum evidence
that SEAs must consider in approving providers will help ensure that
students receive high quality SES services and reinforce with States
that they have the authority and the responsibility to approve only
entities that will contribute to increased student academic
achievement.
Monitoring approved providers. To ensure that State-approved
providers deliver high quality SES services, it is important that
States monitor the provision of SES. We believe that the monitoring
criteria in proposed Sec. 200.47(c)(1) would reinforce with States
that they have the authority and the responsibility to monitor
providers in order to make informed decisions about whether SES
providers should remain on a State's approved provider list. We believe
that specifying the minimum evidence that SEAs must consider in
approving providers will help ensure that students receive high quality
SES services and reinforce with States that they have the authority and
the responsibility to approve only entities that will contribute to
increased student academic achievement.
[[Page 22032]]
Section 200.48--Funding for Choice-Related Transportation and
Supplemental Educational Services (SES)
Statute and Current Regulations: Section 1116(b)(10) of the ESEA
and Sec. 200.48(a)(2) require LEAs to spend an amount equal to 20
percent of their Title I, Part A allocations, unless a lesser amount is
needed, to comply with all requests for SES and to provide
transportation, or pay for the transportation costs, for students
exercising the public school choice option under the ESEA. An LEA may
use Title I funds to pay for the costs to implement SES and public
school choice, including outreach to parents; however, under Sec.
200.48(a)(2)(iii)(B), the LEA may not count these costs toward meeting
its 20 percent obligation.
Proposed Regulations: Proposed Sec. 200.48(a)(2)(iii)(C) would
allow an LEA to count costs for providing outreach and assistance to
parents regarding public school choice and SES toward meeting its 20
percent obligation. The amount that could be counted toward these costs
would be capped at an amount equal to 0.2 percent of the LEA's Title I,
Part A, subpart 2 allocation. An LEA would still be able to spend more
than that amount on parental outreach activities; the proposed
regulations would only cap what could be counted toward meeting the 20
percent obligation.
Proposed Sec. 200.48(d) would require an LEA, before reallocating
unused funds from choice-related transportation and SES to other
purposes, to demonstrate to the SEA that it had met specific criteria
established in proposed Sec. 200.48(d)(1). Specifically, the LEA would
have to demonstrate success in the following:
(a) Partnering with community-based organizations or other groups
to reach out to eligible students and their families about SES and
public school choice opportunities.
(b) Ensuring that eligible students and their parents have had a
genuine opportunity to sign up to transfer to another public school or
receive SES, including by:
Providing timely, accurate notice as required in
Sec. Sec. 200.36 and 200.37 of the availability of public school
choice and SES.
Ensuring that sign-up forms for SES are distributed
directly to all eligible students and their parents and are made widely
available and accessible through broad means of dissemination, such as
the Internet, other media, and communications through public agencies
serving eligible students and their families.
Allowing eligible students to sign up for SES throughout
the school year.
(c) Ensuring that eligible SES providers are given access to school
facilities, using a fair, open, and objective process, on the same
basis and terms as are available to other groups that seek access to
school facilities.
If an LEA does not meet these criteria, the proposed regulations
would require the LEA to spend the amount remaining from its 20 percent
obligation in the following school year for choice-related
transportation, SES, or parent outreach (subject to the 0.2 percent cap
in Sec. 200.48(a)(2)(iii)(C)). The requirement to spend these unused
funds would be in addition to the requirement to spend an amount equal
to 20 percent of its Title I, Part A allocation in the following school
year.
Reasons: There is evidence indicating that SES participation
improves student achievement. A recent study by the RAND Corporation,
supported by the Department, found that, in five out of the seven large
urban districts in which there were sufficient numbers of students to
analyze the effects, students participating in SES showed statistically
significant positive effects in both reading and mathematics
achievement.\18\ However, currently, only 14.5 percent of eligible
students take advantage of SES nationwide.\19\
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\18\ U.S. Department of Education. (2007). State and Local
Implementation of the No Child Left Behind Act, Volume I--Title I
School Choice, Supplemental Educational Services, and Student
Achievement, Washington, DC: Author.
\19\ U.S. Department of Education. Consolidated State
Performance Report, 2006-2007. Unpublished raw data.
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In order to increase participation in SES and public school choice,
the Department believes that LEAs need to devote sufficient time and
resources to effectively notify parents of available public school
choice and SES options. Currently, LEAs are not permitted to count
costs for these activities toward meeting their 20 percent obligation
for choice-related transportation and SES. The proposed regulations
would permit LEAs to count a limited amount of funds for parent
outreach and assistance in order to help ensure that LEAs provide
parents with the information they need to make the best, most informed
decisions for their children.
The proposed regulations also would require LEAs, before
reallocating funds for other purposes, to demonstrate to the SEA
success in meeting several requirements. Our rationale for each of
these requirements follows.
Partnering with community-based organizations. In a survey of LEAs'
strategies for communicating with parents about their SES options, only
16 percent of LEAs reported that they worked with a local community
partner to reach parents regarding their SES options, and only 10
percent did so to communicate with parents about public school choice
options.\20\ We learned during visits to LEAs across the country as
part of a 2007 outreach tour on SES and public school choice that
information from a variety of sources is needed to reach parents and
make them fully aware of their SES and public school choice options.
LEAs that we met with reported that partnering with community
organizations was an effective way of making parents aware of SES and
public school choice options for their children.\21\
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\20\ Stullich, S., Eisner, E., & McCrary, J. (2007). National
Assessment of Title I: Final Report, Volume I: Implementation.
Washington, DC: National Center for Education Evaluation and
Regional Assistance, Institute of Education Sciences, U.S.
Department of Education.
\21\ U.S. Department of Education, Office of Innovation and
Improvement, Giving Parents Options: Strategies for Informing
Parents and Implementing Public School Choice and Supplemental
Educational Services Under No Child Left Behind, Washington, DC,
2007.
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Providing timely, accurate notice. As noted in our discussion of
the proposed changes to Sec. 200.37, the NATI report provides evidence
that notifying parents of their public school choice options in a
timely manner helps to increase study participation in public school
choice. The NATI report also found that in 2004-2005 the quality and
clarity of LEAs' parent notification letters regarding SES and public
school choice varied considerably with many omitting key information.
For example, fewer than half of the 20 public school choice letters
that were sampled identified the schools that parents could choose for
their children, and fewer than half of the 21 SES letters sampled
identified the eligible SES providers.\22\ We believe that requiring
LEAs to provide parents with timely and accurate notice of their SES
and public school choice options is essential to ensuring that parents
have the information they need to make informed decisions about their
child's education.
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\22\ Stullich, S., Eisner, E., & McCrary, J. (2007). National
Assessment of Title I: Final Report, Volume I: Implementation.
Washington, DC: National Center for Education Evaluation and
Regional Assistance, Institute of Education Sciences, U.S.
Department of Education.
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Sign-up forms and signing up throughout the school year. The
Department believes that parents of students eligible to receive SES
should have opportunities to request SES for
[[Page 22033]]
their children throughout the school year. A short sign-up period at
the beginning of the school year may exclude many students from
participation, including, for example, children whose parents learn
later in the school year that their child is struggling and needs
additional support. Moreover, it is important that parents can easily
access the forms to sign-up for services. We know from our discussions
with States and SES providers that participation in SES is lower when
access to sign-up forms is limited, for example, by requiring parents
to attend a meeting or to travel to a district or school office to
obtain the form. We believe that distributing sign-up forms directly to
eligible students and their parents and allowing eligible students to
sign up to receive SES services throughout the school year will make it
easier for students and parents to take advantage of SES services.
Access to school facilities. The statute does not require LEAs to
pay or provide transportation for students to and from SES programs;
therefore, if SES providers cannot operate on school grounds, families
may have to arrange transportation for their children to the site where
SES services are provided. Although the Department has promoted a
policy of access to school facilities through non-regulatory guidance
and technical assistance for several years, many LEAs around the
country continue to deny providers access to their buildings. Giving
providers access to school facilities is an important way of ensuring
that families can participate in, and students can attend, SES
programs.
We believe that these proposed changes will encourage LEAs to
improve opportunities for parents to take advantage of their options
and result in more students participating in public school choice and
SES, ultimately leading to increased student achievement.
Section 200.56--Definition of ``highly qualified teacher''
Statutes and regulations: Under section 9101(23) of the ESEA and
Sec. 200.56, a highly qualified teacher in any public elementary or
secondary school must hold at least a bachelor's degree and either have
(1) obtained full State teacher certification or (2) passed the State
teacher licensing examination and hold a license to teach in that
State. The ESEA also includes additional requirements for a highly
qualified teacher depending on which grade level the teacher teaches
and whether the teacher is new to the profession. Under section
1119(a)(1) of the ESEA, beginning with the first day of the 2002-2003
school year, each LEA receiving assistance under Title I, Part A is
responsible for applying these requirements to any public school
teacher teaching in a core academic subject supported by Part A funds
who is hired after that date. The LEA also must have a plan to ensure
that all public school teachers teaching in core academic subjects in
the LEA meet these requirements by the end of the 2005-2006 school
year.
Under section 602(10)(A) of the IDEA and 34 CFR 300.18, a highly
qualified special education teacher must obtain full State
certification as a special education teacher or pass the State special
education teacher licensing exam and hold a license to teach in the
State as a special education teacher. The IDEA also includes
requirements for special education teachers who teach core academic
subjects exclusively to children who are assessed against alternate
academic achievement standards. Section 602(10)(C) of the IDEA and 34
CFR 300.18(c) require special education teachers teaching core academic
subjects exclusively to alternate achievement standards to meet the
NCLB requirements for elementary school teachers and have subject
matter knowledge appropriate to the level of instruction being provided
and needed to teach to those standards effectively. Special education
teachers teaching multiple subjects and who are new to the profession
have additional flexibility. Section 602(10)(D)(iii) of the IDEA and 34
CFR 300.18(d) permit a new special education teacher who teaches
multiple subjects and who is highly qualified in mathematics, language
arts, or science, to have two years to demonstrate competence on the
other core area subjects the teacher teaches, which may include a
single high objective uniform State standard of evaluation (HOUSSE).
Proposed Regulations: Proposed Sec. 200.56(d) would add a cross-
reference to the definition of highly qualified special education
teachers in 34 CFR 300.18 of the IDEA regulations.
Reasons: Special education teachers provide individualized and
specialized instruction to improve the academic achievement of students
with disabilities. The current Title I regulations do not define the
requirements for highly qualified special education teachers who do not
teach core academic subjects. The cross-reference aligns the Title I
regulations with the IDEA regulations; the current requirements for
highly qualified general or special education teachers would not
change.
Executive Order 12866
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may
(1) have an annual effect on the economy of $100 million or more, or
adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments, or communities in a material way (also referred to
as an ``economically significant'' rule); (2) create serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive order. The Secretary has
determined that this regulatory action is significant under section
3(f)(4) of the Executive order.
1. Potential Costs and Benefits
The proposed costs have been reviewed in accordance with Executive
Order 12866. Under the terms of the order, the Department has assessed
the costs and benefits of this regulatory action.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Department has
determined that the benefits of the proposed regulations exceed the
costs. The Department also has determined that this regulatory action
does not unduly interfere with State, local, and tribal governments in
the exercise of their governmental functions.
To assist the Department in complying with the requirements of
Executive Order 12866, the Secretary invites comments on whether there
may be further opportunities to reduce any potential costs or increase
potential benefits resulting from these proposed regulations without
impeding the effective and efficient administration of the programs.
Summary of Costs and Benefits
The Department believes that the majority of the proposed
regulatory changes will not impose significant costs on States, LEAs,
or other entities that participate in programs funded
[[Page 22034]]
under Part A of Title I. For example, the entire cost of the National
TAC would be borne by the Department and would be financed through
funds appropriated by the Congress for the Department's operations. As
additional examples, the proposed regulations on multiple measures of
student achievement, identification of schools and LEAs for
improvement, and restructuring should provide useful clarification to
the States without imposing any new costs on them. Similarly, the
proposed regulations would require LEAs to notify parents of eligible
students of the option to transfer their child to another school,
sufficiently in advance of, but no later than 14 calendar days before,
the start of the school year to give those parents adequate time to
exercise their public school choice option; this regulation would not
increase LEA costs because it would affect merely the timing of the
parental notification.
As another example, States and LEAs should be able to implement at
minimal cost the requirement to include NAEP data on State and LEA
report cards. The State NAEP results are available on the NCES Web site
and through other sources, and obtaining those data should not pose a
significant burden. Neither should including the data on the report
cards, as the NAEP results would be a minor addition to the data
already so included.
The regulations would clarify that State definitions of AYP must
include a minimum subgroup size that is based on sound statistical
methodology, that yields statistically reliable information for each
purpose for which disaggregated data are used, and that ensures that,
to the maximum extent practicable, all student subgroups are included,
particularly at the school level, in accountability determinations. All
States would be required to revise their Accountability Workbooks and
explain how their minimum subgroup sizes meet these criteria and to
provide certain other information on their minimum subgroup sizes and
AYP definitions. Within six months of the effective date of the final
regulation, States would be required to submit to the Department, for
technical assistance and peer review, a revised Accountability Workbook
that reflects these new requirements.
The Department has previously reviewed each State's minimum
subgroup size and believes that some already meet the proposed
criteria. Some States, however, may need to revise their minimum
subgroup sizes and other components of the State's AYP definition based
on the new requirements and on feedback from the new peer review.
The costs to States of submitting a revised Accountability Workbook
for technical assistance and peer review should be fairly low, as these
Accountability Workbooks would, in large part, incorporate policies and
amendments that the States have already included in their Workbooks in
past years. The Department estimates that each State would, on average,
require 112 hours of staff time to complete this effort, including 80
hours for development and analysis of a proposed minimum subgroup size
policy (within an overall definition of AYP) and an additional 32 hours
for actual preparation of the Workbook. We further estimate that SEAs'
cost for that activity will be $30 an hour. For the 50 States, the
District of Columbia, and Puerto Rico, the estimated cost of revising
and submitting their Workbooks would thus be $174,720. The Department
further estimates that 25 States may need to do additional work on
their Accountability Workbooks as a result of feedback from the peer
review. The Department estimates that this work will require an
additional 40 hours of staff time per State, adding an additional
$30,000, for a total estimated cost of $204,720 to implement these
proposed requirements.
The Department believes that the costs of implementing this new
policy should be minimal. The Department further believes that the
benefits of this change, in terms of greater accountability that would
result from the use of minimum subgroup sizes that meet the proposed
criteria, would greatly outweigh the minimal costs of compliance.
The proposed regulation to allow States to use measures of
individual student academic growth in school and LEA AYP determinations
would provide States with greater flexibility without burdening them
with significant additional costs. Although, in order to receive
permission to incorporate individual student academic growth into its
AYP definition, a State would have had to have implemented a
longitudinal data system that tracks student progress from grade to
grade, it is highly unlikely that any State would develop and implement
such a data system only (or even primarily) in order to use measures of
individual student growth for calculating AYP; this is the case because
the benefits of having a longitudinal student data system in place are
much greater than just having the ability to support the use of
individual student academic growth in calculating AYP. States have
found such systems to be valuable in numerous ways, including in
tracking the educational progress of students as they progress through
grades and across schools and school systems; more accurately
determining whether students graduate from high school; calculating
accurate student dropout rates; holding schools and LEAs accountable
for results; targeting assistance to those schools and LEAs most in
need; determining whether the content their secondary schools offer is
well aligned with college-preparedness requirements; identifying
strengths and weaknesses in teacher preparedness; and measuring the
educational performance of the State as a whole. For these reasons,
many States had developed longitudinal student data systems, or were in
the planning stages of such development, even before the Department
announced the Growth Model Pilot in 2005. Therefore, the Department
believes it would be inappropriate to assign the costs States incur in
designing and implementing longitudinal data systems as a cost of this
change in the regulations.
The proposed regulations would require States to adopt a uniform
cohort definition of graduation rate no later than school year 2012-
2013. States that do not currently have the capacity to track student
transfers would be required to use an interim rate, the Averaged
Freshman Graduation Rate (AFGR). The regulations also would require the
use of disaggregated graduation rate data for AYP purposes beginning in
the 2008-2009 school year for States and LEAs and in the 2012-2013
school year for school-level accountability determinations. In
addition, the proposed regulations would require a State to include in
its AYP definition (a) a graduation rate goal that the State expects
all high schools to meet (e.g., 90 percent), and (b) how LEAs
demonstrate continuous and substantial improvement from the prior year
toward meeting or exceeding the goal. To make AYP, the school or LEA
must meet or exceed the graduation rate goal or demonstrate continuous
and substantial improvement.
As discussed earlier (in the explanation of the proposed changes to
Sec. 200.19), the Department, based on work completed by NCES and the
NGA, believes that States can incorporate the AFGR into their AYP
definitions using currently available data. The Department, thus,
believes these adjustments can be completed at minimal cost. In order
to meet the proposed 2012-2013 deadline for implementation of a uniform
cohort
[[Page 22035]]
graduation rate, States will need to have in place a data system that
can track cohorts over four years, including the ability to track (and
include in graduation rate calculations) students who drop out of
school or leave in order to transfer to another school. States also
will need to collect four years of student data through those systems
in order to implement the new rate by the proposed deadline. However,
it is important to note that, while a data system that tracks
individual student data could be used to collect data for this rate,
such a system would not be required in order to implement the proposed
graduation rate requirements. In addition, the data needed to calculate
the AFGR are already available to all schools, LEAs, and States, as
reported in the Common Core of Data produced by NCES.
The proposed regulations would not impose new costs on a State
unless it does not yet have the data system capability to start
collecting the four years of data needed to implement the uniform
cohort graduation rate. We believe that the proposed regulations would
not impose significant costs on States that they were not likely to
assume in the absence of the regulations. In 2005, all 50 States agreed
to the National Governors Association's Graduation Counts: A Compact on
State High School Graduation Data, which calls for each State to
develop a longitudinal graduation rate. In addition, data reported by
the States to the Data Quality Campaign indicate that all States except
for two will have in place a data system that can track individual
students by the end of the 2007-2008 school year.\23\ Moreover, one of
the two States that does not yet have such a system already uses an
alternative method to calculate a cohort graduation rate that would
meet the proposed regulatory requirements, and both States report that
they will have such a data system by 2009-2010. These States should be
able to collect the four years of required data by 2012-2013. Again,
all of this reflects activities that the States initiated in the
absence of the proposed regulation.
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\23\ Data Quality Campaign, 2007 State Data Collection Survey
Results: State Specific Responses to Element 1. (2007). Austin, TX:
Author. Available at: http://www.dataqualitycampaign.org/files/
element1_survey_responses.pdf.
---------------------------------------------------------------------------
Therefore, as with the regulation on including individual student
academic growth in AYP definitions, it would not be appropriate to
assume that the cost of developing these data systems would be
attributable, in whole or even in large part, to the need to comply
with the proposed regulation on the graduation rate. Moreover, the
Federal government supports States' development of longitudinal student
data systems through the Department's Statewide Longitudinal Data
Systems program. For the fiscal years 2005 (when the program began)
through 2008, the Congress has appropriated more than $122 million for
this program and, through fiscal year 2007, 27 States have received
these grants.
We believe the benefits of the proposed changes regarding
graduation rate clearly outweigh the fairly minimal net costs
previously discussed. A uniform and accurate method of calculating
graduation rates is needed to raise expectations and to hold schools,
districts, and States accountable for increasing the number of students
who graduate on time with a regular high school diploma, as well as to
provide parents and the public with more accurate information. By
requiring all States to use a more rigorous and accurate graduation
rate calculation, the Department can ensure greater accountability and
transparency on this important indicator. In addition, we need to have
a uniform and accurate method of calculating high school graduation
rates to improve our understanding of the scope and characteristics of
those students dropping out of school or taking longer to graduate.
The final set of proposed regulations in this package relates to
the implementation of public school choice and SES. The proposed
language in Sec. 200.37(b)(5)(ii)(C), (b)(5)(iii)(A), and
(b)(5)(iii)(B) would require that the notice to parents of students
eligible for SES: (a) Explain the benefits of SES, (b) be clear and
concise, and (c) be clearly distinguishable from the other information
sent to parents under Sec. 200.37. Following, we estimate the costs of
meeting this requirement. We note here that LEAs could assign costs
related to meeting this requirement to the amount equal to 0.2 percent
of their Title I, Part A allocations that the proposed regulations
would permit LEAs to use for outreach and assistance to parents on
public school choice and SES.
Data from the ESEA Consolidated State Performance Report indicate
that approximately 2,000 LEAs nationally have at least one school in
year two of school improvement (or in a later stage of the Title I
accountability timeline). These are the schools with students eligible
for SES that would technically be covered by this new requirement.
However, some of these LEAs are not able to offer SES and thus are not
affected by the proposed notice requirement. For example, rural and
other small or isolated districts often do not have any approved SES
providers serving their area. For this reason, our analysis assumes
that 80 percent of the estimated 2,000 LEAs with at least one school in
year two of improvement or later, or 1,600 districts, will be subject
to the notice requirement annually. We estimate that these 1,600 LEAs
will each require an average of 12 hours of staff time to prepare the
notice to parents so that it is clearly distinguishable from the other
information sent to parents and that the cost for this time will
average $25 per hour. Under this assumption, the cost for the
preparation of this notice will be $480,000.
Further, in the 2006-2007 school year, in the States for which the
Department has data, approximately 3.6 million students were eligible
for SES.\24\ Assuming that approximately 3.6 million students continue
to be eligible each year, we project that the parents of one half of
these students would receive the SES information by mail, in a separate
mailing, and one-half through notices that students bring home from
school, in a mailing that includes other information already required
to be provided to parents (in Sec. 200.37), or by other means that
impose very small costs on LEAs. For the one-half who would receive the
notices by mail, the cost (assuming continuation of current postage
rates) would be $738,000, bringing the total cost for the
implementation of the proposed SES notice requirement to $1,218,000.
---------------------------------------------------------------------------
\24\ U.S. Department of Education. (2007). Consolidated State
Performance Report, 2006-07. Unpublished raw data.
---------------------------------------------------------------------------
The proposed regulations in Sec. 200.39 would require LEAs to post
on their Web sites information on their implementation of the public
school choice and SES requirements, including information on the number
of students who were eligible for and who participated in the public
school choice and SES options, information on approved SES providers
operating in the district, and a list of schools available to students
who wish to take advantage of the public school choice option. Based on
data from the ESEA Consolidated State Performance Report, approximately
3,000 LEAs have a school in year one of improvement or later and thus
are technically required to offer either public school choice, or both
public school choice and SES, to their eligible students. However, as
with the SES notice requirement, some of those LEAs would not be
affected because they are unable to offer public school choice and SES
due to a lack of choice options (for instance, rural and other
[[Page 22036]]
small districts frequently have only one school at a particular grade
span) or the absence of an approved SES provider serving their area. We
estimate that 80 percent of the 3,000 LEAs with a school in year one of
improvement or later, or 2,400 districts, would need to post the new
information on their Web site. We further estimate that these districts
would require an average of 25 hours of staff time to prepare the data
for the Web, at a cost of $25 per hour, for an estimated national cost
of $1,500,000 to meet the new requirement to post public school choice
and SES information on LEA web sites. Therefore, the total estimated
cost for implementation of the new SES and Web site notice requirements
is $2,718,000.
The benefits would be that parents and others would have more and
better information on the public school choices and SES programs
available to eligible children and, thus, parents might be more likely
to take advantage of those options (with attendant benefits for those
children) and that LEA implementation of the choice and SES
requirements would be more transparent. We also note that LEAs could
assign costs related to meeting this requirement to the amount equal to
0.2 percent of their Title I, Part A allocations under proposed Sec.
200.48(a)(2)(iii)(C).
The proposed regulations in Sec. 200.47 would clarify the SEA's
responsibilities for SES, by stating that those responsibilities
include developing, implementing, and publicly reporting on the SEA's
standards and techniques for monitoring LEAs' implementation of SES.
The Department believes that States already have such standards and
techniques in place and that the burden of publicly reporting on them,
such as by posting information about them on the SEA's Web site, would
be very minimal. The benefit of the proposed regulations would be
greater transparency of how SEAs monitor LEAs implementation of SES.
The proposed regulations in Sec. 200.47 would also clarify that,
in order to be approved as an SES provider, an entity must provide the
State with evidence that the instruction it would provide and the
content it would use are aligned with the State's academic content and
student academic achievement standards and are research based. In
addition, a State would also be required to consider, at a minimum, (1)
whether the entity has been removed from any State's approved provider
list; (2) parent recommendations or results from parent surveys, if
any, regarding the success of the entity's instructional program in
increasing student achievement; and (3) evaluation results, if any,
demonstrating that the instructional program has improved student
achievement. The Department believes that these requirements will
result in improvements in States' SES provider approval procedures
resu