[Federal Register Volume 73, Number 86 (Friday, May 2, 2008)]
[Notices]
[Pages 24266-24272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9708]
[[Page 24266]]
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DEPARTMENT OF EDUCATION
Title III of the Elementary and Secondary Education Act of 1965
(ESEA), as Amended by the No Child Left Behind Act of 2001 (NCLB)
AGENCY: Office of English Language Acquisition, U.S. Department of
Education.
ACTION: Notice of proposed interpretations.
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SUMMARY: The Secretary of Education (Secretary) proposes
interpretations of several provisions of Title III of the ESEA
regarding the annual administration of English language proficiency
(ELP) assessments to limited English proficient (LEP) students served
by Title III, the establishment and implementation of annual measurable
achievement objectives (AMAOs) for States and subgrantees receiving
Title III funds, and State and local implementation of Title III
accountability provisions.
Comments: The Department is accepting comments on this notice of
proposed interpretations in order that the Department may provide
additional clarification, detail, or guidance regarding these
interpretations before issuing a notice of final interpretations.
DATES: We must receive your comments on or before June 2, 2008.
ADDRESSES: Address all comments about this notice of proposed
interpretations to Richard L. Smith, Office of English Language
Acquisition, U.S. Department of Education, 400 Maryland Avenue, SW.,
Room 10087, Potomac Center Plaza, Washington, DC 20202, Attention:
Comments on Title III Notice of Proposed Interpretations.
If you prefer to send your comments through the Internet, use the
following address: [email protected].
You must use the term ``Comments on the Title III Notice of
Proposed Interpretations'' in the subject line of your electronic
message.
FOR FURTHER INFORMATION CONTACT: Richard L. Smith. Telephone: (202)
245-7100.
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.
During and after the comment period, individuals may inspect all
public comments by appointment with the contact person listed under FOR
FURTHER INFORMATION CONTACT. The comments will be available for
distribution electronically, to the extent feasible, and will be
available at the Department's Office of English Language Acquisition,
U.S. Department of Education, 550 12th Street, SW., Room 10081, Potomac
Center Plaza, 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. 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. If you want to schedule an
appointment for this type of aid, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Background: The intent of this notice is to ensure that all States
understand and implement the requirements of Title III in accordance
with the Secretary's ``bright-line'' principles of NCLB--including
annual assessments of and accountability for all students--as they
apply to the implementation of Title III.
One of the key goals of Title III of the ESEA is to ensure that LEP
students attain English language proficiency, attain high levels of
academic achievement in English, and meet the same challenging State
academic content and student academic achievement standards that all
children are expected to meet. To achieve this goal, Title III grants
provide States and their subgrantees \1\ with funds to implement
language instruction educational programs to help LEP students acquire
English and achieve at high levels in the core academic subjects. Title
III subgrantees are required to use Title III funds to support (1)
high-quality professional development designed to improve services to
LEP students, and (2) high-quality language instruction educational
programs that are designed to increase the English proficiency and
academic achievement of LEP students. Title III does not require
subgrantees to use any particular curriculum or approach to language
instruction, except that the language instruction must be, as required
in section 3113(b)(6) of the ESEA, tied to scientifically based
research on teaching LEP students and demonstrated to be effective.
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\1\ The majority of ``subgrantees'' under Title III are local
educational agencies (LEAs). However, ``subgrantees'' may also
include groups of LEAs in which one or more of the LEAs is too small
to be individually eligible to apply for a Title III grant; these
LEAs may join together to form consortia in order to qualify to
receive the minimum amount of a Title III subgrant, $10,000.
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The enactment of NCLB marked the first time States were required to
establish ELP standards for LEP students. Under the statute, States
must assess, on an annual basis, the progress of LEP students enrolled
in language instruction educational programs funded under Title III.\2\
States must also define annual measurable achievement objectives
(AMAOs) and measure improvements in the development of and attainment
of English proficiency by LEP students served by Title III.
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\2\ In addition to the ELP assessment provisions in Title III,
Title I of the ESEA requires an annual assessment of all LEP
students that measures LEP students' speaking, listening, reading,
and writing skills in English.
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The Department recognizes that the specific definition of the term
``LEP students served by Title III'' and similar terms used throughout
this notice may vary across States and subgrantees based on the design
of particular language instruction educational programs and
professional development programs implemented using Title III funds.
For example, States and subgrantees may, for Title III accountability
purposes, define ``Title III-served LEP students'' or ``LEP students
served by language education instructional programs under Title III''
as all LEP students in an LEA or subgrantee jurisdiction. States and
subgrantees may also define ``Title III-served LEP students'' as only
those LEP students within an LEA or subgrantee jurisdiction who
specifically receive Title III-funded services.\3\ The Department
intends that the interpretations proposed in this notice apply to all
such definitions.
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\3\ For accountability purposes, the Department expects States
to have a clear policy for how subgrantees define which students are
considered to be served by Title III. States should articulate clear
guidance to subgrantees about how they are expected to identify who
is served by Title III programs so that Title III-served LEP
students are identified consistently across subgrantees with similar
program designs.
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As States have implemented Title III assessment and accountability
requirements, they have faced numerous challenges and posed a number of
questions to the Department about the law's requirements. This notice
of proposed interpretations is intended to help States address those
challenges by answering their questions and providing them with
guidance on the implementation of Title III consistent with the basic
tenets and goals of NCLB.
The following is a brief summary of the basic requirements of Title
III to which the proposed interpretations apply. First, each State's
Title III ELP standards must be based on four
[[Page 24267]]
language domains--speaking, listening, reading, and writing--and be
aligned with the achievement of challenging academic content and
student achievement standards (section 3113(b)(2)). In addition, each
State's ELP assessment must be administered annually to students served
by Title III (section 3113(b)(3)(D)), be valid and reliable (section
3122(a)(3)(A)(ii)), and provide for the evaluation of LEP students'
levels of speaking, reading, writing, listening, and comprehension in
English (section 3121(d)(1)).\4\ Title III requires that States ensure
that all subgrantees comply with the requirement to annually assess the
English proficiency of all LEP students, consistent with section
1111(b)(7) of the ESEA.
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\4\ The Department permits States to derive a score to reflect
LEP student performance in the domain of comprehension based on the
four assessment domains required by both Title I (section
1111(b)(7)) and Title III (section 3113(b)(3)(D))--speaking,
listening, reading, and writing--rather than testing the performance
of LEP students separately in the domain of comprehension.
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Under Title III, States and their subgrantees are accountable for
meeting AMAOs that relate to LEP students' development and attainment
of English proficiency and academic achievement. Each State must set
AMAO targets, make determinations on whether subgrantees are meeting
those targets, and report annually on subgrantees' performance in
meeting those targets.
Title III accountability provisions apply to the States and to
subgrantees. Title III accountability requirements do not, in general,
apply to individual schools and do not apply to individual LEP
students.
The first required AMAO (AMAO 1) focuses on the extent to which LEP
students served by Title III in a State and a particular LEA are making
progress in learning English. The second AMAO (AMAO 2) focuses on the
extent to which LEP students served by Title III in a State and in
their LEA are attaining proficiency in English. Both of these AMAOs use
measures derived, in large part, from the results of the required
annual State ELP assessment. The third AMAO (AMAO 3) is based on
whether the LEP subgroup in the State and in its LEA makes adequate
yearly progress (AYP) in reading/language arts and mathematics, as
defined by the State under section 1111(b)(2)(B) in Title I of the
ESEA.\5\
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\5\ For Title III accountability purposes, AMAO 3--or AYP--is
calculated at the subgrantee/LEA and State levels. For Title I
accountability purposes, AYP is also calculated at the school level.
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Title III requires subgrantees to notify parents of LEP students
participating in language instruction educational programs funded under
Title III if the subgrantee does not meet all three of the AMAO
targets. If a subgrantee does not meet the State's AMAO targets for two
consecutive years, the subgrantee is required to develop and submit an
improvement plan to the State and the State is required to provide
technical assistance to the subgrantee in developing the improvement
plan. If a subgrantee does not meet AMAO targets for four consecutive
years, the subgrantee is required to undertake corrective actions.
In developing this notice, the Department examined current State
policies and practices regarding implementation of Title III assessment
and accountability requirements, and the extent to which these may have
been implemented inconsistently or improperly.\6\ The Department also
considered issues and concerns identified during consultations with
State representatives and experts.
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\6\ Under 34 CFR 80.40(a), States are responsible for oversight
and monitoring of their subgrantees' performance under the subgrant
as a way of ensuring legislative and regulatory compliance with
Title III. For more information, see http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html.
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Proposed Interpretations
1. Annual ELP Assessments of LEP Students
Background: Section 3113(b)(3)(D) of the ESEA requires SEAs
receiving grants under Title III, part A to ensure that eligible
entities receiving a subgrant annually assess the English proficiency
of all LEP students participating in a Title III-funded program,
consistent with section 1111(b)(7) of Title I of the ESEA. Section
1111(b)(7) requires States, in their plans under Title I, to
demonstrate that LEAs in the State provide an annual assessment of
English proficiency that measures the oral language (speaking and
listening), reading, and writing skills of all LEP students in the
schools served by the SEA.
Interpretation: The Secretary proposes to interpret section
3113(b)(3)(D) to require that all LEP students be assessed annually
with an assessment or assessments that measure each and every one of
the language domains of speaking, listening, reading, and writing.
Explanation: Some States have asked the Department to allow them to
exempt a LEP student from an annual ELP assessment in any domain in
which the student has achieved proficiency. For example, States have
requested that a LEP student who scores proficient in the domains of
speaking and listening, but not in reading or writing, continue to be
annually assessed only in reading and writing, but not in speaking and
listening, until such time as the student becomes proficient in all
domains.
Based on the Secretary's proposed interpretation, States would not
be able to forgo assessing a LEP student in any domain of the required
annual ELP assessment. LEP students who score at or above proficient in
a domain would have to continue to be assessed in all four domains of
language as long as the student is identified as LEP. States would not
be able to, in effect, ``bank'' the proficient scores of LEP students
on ELP assessments in a particular domain until such time as the
student is proficient in all domains and exits the LEP subgroup. This
proposed interpretation is consistent with the clear language of the
ESEA, which requires, without exception, that LEP students be assessed
in all domains on an annual basis.
2. Use of Annual ELP Assessment Scores for AMAOs 1 and 2
Background: Section 3121(d)(1) of Title III requires States to
evaluate the progress of LEP students toward attaining English
proficiency, including LEP students' levels of comprehension, speaking,
listening, reading, and writing in English. Section 3122(a)(3)(A)(i)
and (ii) of Title III requires that States develop AMAOs that include
annual increases in the number or percentage of children making
progress in learning English and annual increases in the number or
percentage of students attaining English proficiency by the end of each
school year. States have asked the Department to provide guidance on
the extent to which they may take into account student performance in
each of the English language domains when setting the accountability
targets for making progress in learning English (AMAO 1) and
demonstrating proficiency in English (AMAO 2) under Title III.
Interpretation for AMAO 1: With regard to AMAO 1, the Secretary
proposes to interpret Title III to allow States to base their student
performance expectations and accountability (i.e., AMAO 1) targets for
progress on assessment results derived from either (1) separate student
performance levels or scores in each of the language domains or (2) a
single composite score or performance level derived by combining
performance scores across domains, so long as such a composite score
can be demonstrated to be a valid and effective measure of a student's
progress in each of the English language proficiency domains. The
Secretary also
[[Page 24268]]
proposes to interpret Title III to allow States to determine their AMAO
1 targets based on progress in one or more of the language domains,
rather than requiring student progress separately in each and every one
of the language domains, so long as the targets provide for meaningful
progress toward attaining English language proficiency.
Explanation for AMAO 1: Some States previously may have been
advised that, in setting AMAO targets for the State and for subgrantees
regarding progress in learning English (AMAO 1), their accountability
targets had to reflect LEP student progress in each and every one of
the separate five domains for each and every annual ELP assessment
administration. Under this proposed interpretation, however, States
would have more discretion to set student performance expectations and
accountability targets for AMAO 1, so long as the targets provide for
meaningful progress toward attaining English language proficiency and
overall student performance on the State's ELP assessment is improving.
In the case of States measuring progress of LEP students using separate
ELP domain scores, progress measures could include improvements in some
but not all domains for AMAO 1. In the case of States using composite
ELP assessment scores, progress measures could include improvements in
some but not all domains, so long as a student's overall performance on
the ELP assessment is improving. The Department recognizes that, given
the nature of language acquisition, LEP students may make meaningful
progress in learning English without necessarily making progress in
each and every domain in a given school year. For the purposes of Title
III accountability, this proposed interpretation would allow AMAO 1
targets to recognize such progress.
Interpretation for AMAO 2: With regard to AMAO 2, attaining English
language proficiency, the Secretary proposes to interpret Title III to
allow States to base their student performance expectations and
accountability targets for attainment on assessment results derived
from either (1) separate student performance levels or scores in each
of the language domains or (2) a single composite score or performance
level derived by combining performance scores across domains, provided
that such a composite score can be demonstrated to be a valid and
effective measure of a student's proficiency in each of the English
language proficiency domains.
In setting student performance expectations and accountability
targets for attaining proficiency in English (AMAO 2), it is the
Secretary's proposed interpretation of Title III that a LEP student
must score proficient or above in each and every language domain
required under Title III in order to be considered to have ``attained
proficiency'' on a State's ELP assessment. If a State's ELP assessment
generates a composite score, the State would have to demonstrate that
an overall proficient ELP score represents proficiency in all domains
for students served by Title III.
Explanation for AMAO 2: The Department has received questions from
States about whether students must attain proficiency in each language
domain required under Title III to be considered to have scored as
proficient overall on the State ELP assessment required under Title
III. This proposed interpretation is intended to clarify for States the
distinction between the use of assessment scores for AMAO 1 and AMAO 2.
With respect to measuring progress, the Department recognizes that,
due to the nature of language acquisition, it is possible for LEP
students to make meaningful progress in learning English without evenly
and consistently demonstrating progress in each of the language domains
Title III requires for evaluating LEP student performance. Therefore,
under this proposed interpretation, States would have discretion in how
they factor LEP student progress in each domain and across domains into
overall AMAO 1 targets. However, with respect to AMAO 2, this measure
is intended to mark a completion point at which LEP students have
acquired adequate skills in each of the language domains to be
considered to have attained ``proficiency'' in English. Proficiency in
English in each domain is critical to succeeding academically when the
language of instruction is English. This is consistent with the
definition of LEP, in section 9101(25) of the ESEA, which provides that
a student can be LEP if the student's difficulty in reading, speaking,
writing, or understanding English causes the student difficulty in
achieving academically when the language of instruction is English.
Therefore, it is the Secretary's proposed interpretation that
students must reach, and AMAO 2 targets must reflect, a proficient
level of performance in each and every domain of English required to be
evaluated under Title III.
3. Students Included in Title III Accountability
Background: Section 3122(a)(1) of the ESEA requires States to
develop AMAOs for LEP students served under Title III. The AMAOs relate
to students' development and attainment of English proficiency while
meeting challenging State academic content and student academic
achievement standards required by section 1111(b)(1) of Title I of the
ESEA. The AMAOs must include-- (1) At a minimum, annual increases in
the number or percentage of LEP children making progress in learning
English; (2) at a minimum, annual increases in the number or percentage
of LEP children attaining English proficiency by the end of each school
year, as determined through a valid and reliable assessment of English
proficiency, consistent with section 1111(b)(7); and (3) making AYP for
the LEP subgroup, as described in section 1111(b)(2)(B) of Title I of
the ESEA. States must set annual targets for each AMAO and measure the
progress of each subgrantee in meeting the targets.
The Department is aware that some States treat AMAO 1 and AMAO 2 as
mutually exclusive, such that LEP students served under Title III are
included in either AMAO 1 or AMAO 2, but not both. The Department is
also aware that some States identify a subgroup of Title III-served
students as ``eligible'' to be included in AMAOs, which excludes some
Title III-served LEP students from AMAO targets, calculations, and
determinations.
Interpretation: The Secretary proposes to interpret Title III to
require that all LEP students served by programs under Title III be
included in all AMAO targets, calculations, and determinations. In
addition, the Secretary proposes to interpret Title III, consistent
with Title I, as requiring all LEP students attending a public school
within a State or subgrantee's jurisdiction--not only those LEP
students served by Title III programs--to be included in targets,
calculations, and determinations for purposes of determining whether a
State or Title III subgrantee meets AMAO 3.
Explanation: This proposed interpretation is consistent with the
plain language of Title III, which makes no provision for excluding any
LEP students from AMAO targets, calculations, and determinations. For
AMAO 1 and AMAO 2, while the Department recognizes that States and
subgrantees have discretion, for Title III purposes, to define ``Title
III-served LEP students'' or ``LEP students served by language
education instructional programs under Title III'' as all LEP students
in an LEA or as only LEP students specifically receiving Title III-
funded services, this proposed interpretation would mean that the
performance of all LEP students who a
[[Page 24269]]
State and subgrantee define as served under Title III must be included
in accountability determinations for both AMAO 1 and AMAO 2.
In the case of AMAO 3, this proposed interpretation would mean that
all LEP students--not only those LEP students specifically served by
Title III programs--would be required to be included in targets,
calculations, and determinations for purposes of determining whether a
State or Title III subgrantee met the AMAO.\7\ For Title III
subgrantees, this means that all LEP students in the subgrantee's
jurisdiction would be required to be included in AMAO 3. For States,
this would mean that all LEP students in the LEP subgroup Statewide
would be required to be included in AMAO 3. This proposed
interpretation is consistent with the provisions of Title I, which
require that all LEP students be included in accountability
determinations, including AYP determinations.\8\
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\7\ In addition, States may choose to use the flexibility
granted to States by the Secretary to include former LEP students in
AYP calculations for the LEP subgroup for up to two years after such
students have exited the LEP subgroup. See 34 CFR
200.20(f)(2)(i)(A); http://www.ed.gov/legislation/FedRegister/finrule/2006-3/091306a.html and http://www.ed.gov/policy/elsec/guid/lepguidance.doc.
\8\ We note that under our regulations in 34 CFR 200.20(f), some
LEP students may not be included in AYP determinations because of
their recently arrived status. Furthermore, if a student has not
been enrolled in the same school or LEA for a full academic year as
defined by the State, such a student may be excluded from AYP
calculations. However, other than these exceptions permitted in
calculating AYP under Title I, this proposed interpretation provides
that all LEP students must be included in Title I accountability
determinations and, therefore, in AMAO 3 determinations. For more
information on recently arrived LEP students see 34 CFR
200.20(f)(2)(i)(A); http://www.ed.gov/legislation/FedRegister/finrule/2006-3/091306a.html. For more information on other
exceptions permitted in AYP calculations, such as full academic year
enrollment, see Title I guidance at http://www.ed.gov/policy/landing.jhtml.
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4. Exclusion of LEP Students ``Without Two Data Points'' From AMAO 1
Background: Section 3122(a)(3)(A)(i) of the ESEA requires States to
develop AMAOs for LEP student progress in learning English. Thus, AMAO
1 requires that States and subgrantees, at a minimum, show annual
increases in the number or percentage of LEP children making progress
in learning English.
In paragraph 3 of this notice, the Department has set forth its
proposed interpretation that all LEP students served by Title III must
be included in Title III accountability determinations. In this
paragraph, the Department addresses the more specific question of
whether States would be permitted to exclude from AMAO 1 calculations
and determinations LEP students who do not have ``two data points,''
that is, students who have not participated in two consecutive and
consistent administrations of the annual ELP assessment required under
Title III.
Interpretation: The Secretary proposes to interpret the requirement
in section 3122(a)(3)(A)(i) of the ESEA to include all LEP students
served by Title III in measurements of student progress in English
(AMAO 1). This would mean that all such students would have to be
included regardless of whether they have participated in at least two
consecutive and consistent annual administrations of an ELP assessment
required under section 3113 of the ESEA. Under this proposed
interpretation, all LEP students served by programs under Title III
would have to be included in AMAO 1 determinations.
If a State does not have the requisite two years of data for some
LEP students served by Title III in the State, the State would be
permitted to propose to the Department an alternative method of
calculating AMAO 1. The Department would require that the alternative
method for measuring progress under AMAO 1 be based on research on how
LEP children acquire proficiency in English and include reliable
measures of growth in English language proficiency.
Under this proposed interpretation, the Secretary also would allow
States to include criteria--in addition to progress on an annual ELP
assessment--to be factored into progress determinations for AMAO 1,
even for students who have participated in two consecutive
administrations of the required annual ELP assessments.
Explanation: To be consistent with NCLB's purpose to include all
students in State assessment and accountability systems, the Department
no longer would permit States and LEAs to exclude LEP students without
two consecutive annual ELP assessment scores from AMAO 1 calculations
and determinations. The Department recognizes, however, that there will
be students who may not have attended a school long enough to have
participated in two administrations of the required annual ELP
assessment (e.g., highly mobile students or migrant students new to the
country or to a State or school system). Accordingly, for these
students, in the absence of data for two years from the State's ELP
assessment, the Department would require States to propose to the
Department an alternative method of calculating AMAO 1. To ensure
accuracy and validity, this alternative method for measuring progress
under AMAO 1 would need to be based on research on how LEP children
acquire proficiency in English and include reliable measures of growth
in English language proficiency. A State could, for example, propose to
allow its subgrantees to use the results of ELP placement assessments
or other local ELP assessments to measure progress for LEP students
served by Title III who do not have two consecutive ELP assessment
scores.
The Secretary also would allow States to include criteria--in
addition to progress on an annual ELP assessment--to be factored into
progress determinations for AMAO 1, even for students who have
participated in two consecutive administrations of the required annual
ELP assessments. While the Department does not believe many States
follow this practice, we believe it is important to permit this option
for States that wish to factor additional relevant language acquisition
data into progress measures. However, even if a State uses additional
criteria, at a minimum Title III-served LEP students who have
participated in two consecutive administrations of the required ELP
assessments would be required to make progress on the ELP assessment to
be counted towards a subgrantee meeting AMAO 1.
5. Attainment of English Language Proficiency and ``Exiting'' the LEP
Subgroup
Background: Section 3122(a)(3)(A)(ii) of the ESEA requires States
to develop AMAOs for Title III-served LEP student attainment of
proficiency in English, as determined through a valid and reliable
assessment of English proficiency. AMAO 2 requires that States and
subgrantees, at a minimum, show annual increases in the number or
percentage of LEP children attaining English proficiency.
The Department understands that some States are using criteria, in
addition to the results of a valid and reliable ELP assessment, to
determine whether subgrantees meet AMAO 2. The Department also
understands that in many States, LEP students are now considered
proficient in English for the purposes of Title III accountability
determinations but are not considered proficient for the purposes of
determining whether such students are prepared to ``exit'' the LEP
subgroup under Title I or are no longer eligible for services under
Title III. For example, the Department has learned that some States
require LEP students to demonstrate proficiency on content assessments
before exiting the LEP subgroup. Some
[[Page 24270]]
States also consider LEP students' achievement in content classes when
determining whether the students will exit the LEP subgroup.
Interpretation: It is the Secretary's proposed interpretation of
section 3122(a)(3)(A)(ii) of the ESEA that State definitions of English
language proficiency for the purposes of setting targets for AMAO 2--
increasing the number or percentage of LEP students attaining English
language proficiency--be consistent with and reflect the same criteria
States use to determine that students from the LEP subgroup no longer
need services under Title III and are prepared to exit the LEP subgroup
for Title I accountability purposes.\9\
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\9\ States must define AMAO 2 criteria consistently with the
criteria the State uses to determine that students from the LEP
subgroup are prepared to exit LEP status for Title I accountability
purposes. However, AMAO 2 calculations do not include former LEP
students who, while they have exited the LEP subgroup, may still be
included in the subgroup for two years for the purposes of Title I
AYP calculations.
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Explanation: This proposed interpretation would not require States
to change their exit criteria for LEP students. Under this proposed
interpretation, the Secretary would continue to permit States and
subgrantees to use criteria in addition to ELP assessment results to
determine a student's LEP status, as long as those criteria are applied
consistently across all subgrantees in a State. However, this proposed
interpretation requires that States make their AMAO 2 targets,
calculations, and determinations consistent with their determination of
LEP status, such that a student considered ``proficient'' in English
for the purposes of AMAO 2 and Title III accountability would also
necessarily be prepared to exit the LEP subgroup based on the State's
definition of LEP under Title I and its criteria for determining when a
LEP student is no longer in need of a language instruction educational
program.
Likewise, any additional criteria a State uses under Title I for
determining when a LEP student exits the LEP subgroup would have to be
incorporated into that State's criteria for AMAO 2.
The Secretary believes that if a State determines students to be
eligible for Title III services because such students have limited
proficiency in English, then the criteria for attaining proficiency for
AMAO 2 should be consistent with the criteria the State establishes for
determining that LEP students no longer need Title III services. Thus,
under the proposed interpretation, students would not be considered
proficient for the purposes of AMAO 2 until they are also considered
proficient by the State for the purposes of exiting the LEP subgroup,
i.e., students would have to be proficient on a State's ELP assessment
and meet any other criteria used by a State to determine that a student
can exit the LEP subgroup.
6. Use of Minimum Subgroup Sizes in Title III Accountability
Background: Section 3122(a)(3)(A)(ii) of Title III requires that
States' AMAOs for LEP student proficiency in English be determined by a
valid and reliable assessment of English proficiency consistent with
section 1111(b)(7) of Title I of the ESEA.
States have asked the Department to provide guidance on whether
States may apply minimum subgroup sizes to the AMAO calculations and
determinations. It is also the Department's understanding that numerous
States are already implementing minimum subgroup size policies as part
of their AMAO determinations.
Interpretation: The Secretary proposes to interpret section
3122(a)(3)(A) of the ESEA to permit States to apply minimum subgroup
sizes to AMAO calculations and determinations under Title III,
consistent with the minimum subgroup size policies that the State
applies to AYP determinations for the LEP subgroup and that have been
approved by the Department in the State's Accountability Workbook for
Title I.
Explanation: This proposed interpretation is based on the statutory
requirement that AMAO determinations be made based on valid and
reliable measures of student performance on ELP assessments. In this
context, a minimum subgroup size reflects the number of Title III-
served LEP students who need to be enrolled in a district for the ELP
assessment scores of those students, taken together, to be a reliable
basis for making judgments about how that subgrantee is performing.
The Department is not encouraging States to adopt minimum subgroup
size policies for purposes of complying with Title III's accountability
provisions and does not believe it will be necessary for most States to
adopt such policies. Title III accountability requirements apply only
at the LEA/subgrantee and State levels, not to individual schools,
where there are often smaller numbers of LEP students or frequent
fluctuations in student populations that might make use of small
subgroup sizes necessary. Furthermore, LEAs with very small numbers of
LEP students are not typically eligible for Title III grant funds, so
this proposed interpretation would not affect them.
However, under this proposed interpretation, a State would be
permitted to apply the same minimum subgroup size policies for Title
III accountability purposes as the State applies to AYP determinations
for the LEP subgroup and that have been approved by the Department in
the State's Accountability Workbook for Title I. Policies designed to
ensure that assessment results are used to make valid and reliable
accountability determinations would have to be applied consistently
across the State for Title III subgrantees. Under no circumstances
could a State allow different subgrantees to use different minimum
subgroup sizes for Title III accountability purposes.
7. All LEP Students, Adequate Yearly Progress, and AMAO 3
Background: Section 3122(a)(3)(A)(iii) of the ESEA requires States
to develop an AMAO for making adequate yearly progress for limited
English proficient children as described in section 1111(b)(2)(B) of
Title I of the ESEA.
In paragraph 3 of this notice, the Department has set forth its
proposed interpretation that all LEP students served by Title III must
be included in Title III accountability determinations. In this
paragraph, the Department addresses the more specific question of
whether States must include all LEP students--whether or not served by
Title III--in determining whether the State or the subgrantee has met
AMAO 3.
Interpretation: The Secretary proposes to interpret section
3122(a)(3)(A)(iii) of the ESEA to require that the LEP students
included in AMAO 3 be the same LEP students referred to in section
1111(b)(2)(B) of Title I of the ESEA--that is, all students counted in
the LEP subgroup for AYP purposes.\10\ The setting of targets,
calculations, and determinations of AMAO 3 would not be limited to, or
based on, only the expectations for LEP students served by Title III.
It is the Secretary's proposed interpretation that for a subgrantee or
State to meet AMAO 3, the subgrantee or State would have to meet the
overall AYP achievement targets for the LEP subgroup in both reading
and mathematics.
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\10\ This includes former LEP students if a State chooses to use
the flexibility granted to States by the Secretary to include former
LEP students for up to two years in AYP calculations.
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Explanation: Early interpretations of AMAO 3 by Department staff
may have led some States to believe that they
[[Page 24271]]
needed to include only those LEP students receiving Title III services
when calculating AYP for purposes of meeting AMAO 3. This may have led
some States to make one AYP determination for Title III purposes and a
separate AYP determination for Title I purposes.
However, one of the key purposes of AMAO 3 is to tie accountability
under Title III to accountability under Title I to ensure that LEP
students achieve to the same high standards as all students are
expected to meet in the core content areas. The Department believes
that it is a more accurate interpretation of the statute that LEAs and
subgrantees be required to use the same criteria for determining AYP
under AMAO 3 as they use to determine AYP for the LEP subgroup at the
LEA level under Title I.
For Title III subgrantees, this proposed interpretation means that
all LEP students in the subgrantee's jurisdiction would have to be
included in AMAO 3 targets and calculations. For States, this proposed
interpretation means that the Statewide LEP subgroup, representing all
LEP students in the State, whether or not they are specifically served
by Title III programs, would have to be included in AMAO 3 targets and
calculations.
The Department would consider other methods for calculating AMAO 3
but only in special circumstances regarding Title III consortia, in
which several otherwise separate LEAs have formed a group for funding
purposes. (See the considerations outlined in paragraph 9 of this
notice regarding accountability requirements for Title III consortia).
8. AMAOs and the Use of Cohorts
Background: Section 3122(a)(2)(A) of the ESEA requires that AMAOs
be developed in a manner that reflects the amount of time an individual
student has been enrolled in a language instruction educational
program.
States have some discretion in how to consider the amount of time a
student has had access to a language instruction educational program
when developing AMAO targets. Some States have appropriately considered
empirical data, student demographics, and instructional practices in
setting overall AMAO targets for English language acquisition by LEP
students served under Title III. To date, the Department also has
allowed States to establish different AMAO targets for different
``cohorts'' of LEP students based on characteristics of LEP students
other than their access to English language instruction. For example,
some States have established cohorts based on student proficiency
level, the number of years a student has been in the United States, or
the likelihood a student will reach proficiency in English in a given
year.
Interpretation: With this notice of interpretation, the Secretary
proposes to interpret Title III to mean that (a) States may, but are
not required to, establish ``cohorts'' for AMAO targets, calculations,
and determinations; and (b) States may set separate AMAO targets for
separate groups or ``cohorts'' of LEP students served by Title III
based only on the amount of time (for example, number of years) such
students have had access to language instruction educational programs.
Explanation: The plain language of Section 3122(a)(2)(A)
specifically provides that, in developing AMAOs, States must take into
account the time a student has spent in a language instruction
educational program. It would, therefore, be inconsistent with this
statutory language to set different expectations for different LEP
students served by Title III based on their current language
proficiency, time in the United States, or any other criteria other
than time in a language instruction educational program.
Moreover, the purpose of the accountability requirements in Title
III is to ensure that the language instruction educational programs in
which LEP students are enrolled are accountable for helping all LEP
students acquire English. Consistent with the basic principles of NCLB,
under this proposed interpretation, subgrantee accountability would not
be defined by the characteristics of LEP students themselves, but by
the quality of, and student access to, language instruction educational
programs that help LEP students learn English.
To the extent that States choose to define ``cohorts'' of LEP
students based on their time in language instruction educational
programs to set, calculate, and determine AMAO 1 or AMAO 2, the State,
LEA, or subgrantee would have to meet all of the AMAO targets applied
to each cohort of LEP students.
For example, if a State chooses to set two separate AMAO targets
for progress (AMAO 1)--one for students with less than three years of
access to a language instruction educational program and one for
students with three or more years of access to a language instruction
educational program--the State, LEAs, and subgrantees would have to
meet both targets (i.e., both the target for students with less than
three years of language instruction and the target for students with
more than three years of language instruction) for that entity to meet
the AMAO. For a subgrantee to meet an AMAO overall, all cohorts for
which the State has set separate targets would have to meet the AMAO
targets.
9. Determining AMAOs for Consortia
Background: Section 3113(b)(5)(A) of Title III requires States to
submit a plan to the Secretary describing how the agency will hold
eligible entities accountable for meeting all AMAOs described in
section 3122.
Under Title III, an SEA can make subgrants to eligible entities,
which include LEAs applying individually or as part of a group or
consortium. Because section 3114(b) of the ESEA does not permit States
to award Title III grants in amounts smaller than $10,000, a consortium
arrangement can be used by a group of LEAs that are not individually
eligible for Title III funds due to the small number of LEP students in
their LEAs.
To date, some Department officials have communicated to States that
AMAOs must be calculated for consortia by compiling ELP assessment data
and other applicable data from each of the LEAs in the consortium and
determining, based on those data, whether the consortium has met the
State's AMAOs. In the case of AMAO 3 (i.e., AYP for the LEP subgroup),
Department staff, in some cases, have required States to aggregate and
compile results across LEAs and compute a new ``consortium AYP.'' The
Department is also aware that some States use different approaches to
calculating AMAOs for various consortia within their States.
Interpretation: The Secretary requires States to hold consortia,
like any other eligible subgrantee, accountable for meeting AMAOs.
However, the Secretary proposes to interpret Title III to allow States
discretion on whether to treat subgrantees that consist of more than
one LEA as a single entity or as separate entities for the purpose of
calculating each of the three AMAOs required under Title III. States
would, for example, be permitted to combine data across LEAs in a
consortium or treat LEAs within a consortium separately for the
purposes of accountability determinations. Except as described in the
following paragraphs, a State would have to apply a uniform approach to
all the consortia in the State.
Explanation: The Department is proposing this interpretation to
ensure that consortia are held accountable for meeting AMAOs. The
Department believes this will best be accomplished if States adopt an
approach that is generally consistent in implementing AMAOs for
consortia within each State. To the degree a State does not adopt a
[[Page 24272]]
uniform approach, however, the Department would require a State to
demonstrate that its method for calculating AMAOs for consortia would
hold all consortia accountable for ensuring that LEP students acquire
English language skills and make AYP.
If a State intends to, among other things, combine assessment or
other data, apply a minimum group size (``n''-size) or confidence
intervals, create a ``consortium AYP'' calculation, or treat individual
LEAs separately for the purposes of calculating AMAOs, the State would
have to describe its methods and rationale in its State Title III plan.
If a State intends to change the way it computes AMAOs for
consortia, or wishes to propose criteria for using different approaches
based on the characteristics of consortia, the Secretary would require
the State to submit, for approval, an amendment to its Title III
Consolidated State application, required under section 3113 of the
ESEA.
10. Implementation of Corrective Actions Under Title III
Background: Section 3122(b) of the ESEA describes the actions that
a State and subgrantee must take if the subgrantee fails to meet Title
III AMAOs for two or four consecutive years. If a State determines that
a subgrantee has failed to make progress toward meeting the AMAOs for
two consecutive years, the State must require the subgrantee to develop
an improvement plan. The improvement plan must specifically address the
factors that prevented the subgrantee from meeting the AMAOs. If a
State determines that an eligible subgrantee has not met the AMAOs for
four consecutive years, the State must--(1) Require the subgrantee to
modify its curriculum, program, and method of instruction; or (2)
determine whether the subgrantee should continue to receive Title III
funds and require the subgrantee to replace educational personnel
relevant to the subgrantee's failure to meet the objectives.
Furthermore, section 3302 of Title III requires that parents of LEP
students served by a subgrantee receive notice each year that a
subgrantee does not meet AMAOs.
Interpretation: Through this notice, the Secretary intends to
reinforce the proper implementation of the requirements of section
3122(b). First, the Department proposes to interpret this provision to
require that all States comply with Title III requirements and make
determinations for each of the three AMAO targets--making progress in
English proficiency (AMAO 1), attaining English proficiency (AMAO 2),
and AYP for the LEP subgroup (AMAO 3)--for every Title III subgrantee
in the State for every school year. Not meeting any one of the three
AMAO targets in a given school year constitutes not meeting AMAOs.
The Department also proposes to interpret Title III to require that
States annually inform their subgrantees when the subgrantees do not
meet the State's AMAO targets--for each and every AMAO target the
subgrantee does not meet. In addition, States and subgrantees must
communicate AMAO determinations to the parents of LEP students served
by subgrantees' Title III programs when subgrantees do not meet AMAOs.
Explanation: In monitoring State compliance with Title III, the
Department has become aware that some States have made AMAO
determinations and reported those determinations to the Department, but
have neither informed subgrantees of the AMAO determinations nor
implemented any measures to address subgrantees' failures to meet the
AMAOs. The purpose of including these interpretations in this notice is
to be clear that States must communicate with Title III subgrantees and
the parents of students served by or identified for services by the
subgrantees about student progress and achievement, as well as provide
parents with information about their child's education; these
requirements are central to the purposes and goals of NCLB.
Thus, the Department expects States, on an annual basis, to
maintain evidence that (a) the State has informed a subgrantee if the
subgrantee did not meet one or more AMAO, (b) the subgrantee has
notified parents that it did not meet one or more AMAO, (c) the State
has provided required technical assistance to the subgrantee, and (d)
the State has implemented required measures to address the subgrantee's
failure to meet the AMAOs. The Department may review this evidence as
part of its annual desk audits and on-site monitoring in order to
ensure that Title III corrective action requirements are being
appropriately and effectively implemented.
Proposed Rulemaking
Under the Administrative Procedure Act (5 U.S.C. 553) (APA), this
notice is an interpretative rule and therefore is exempt from the
notice-and-comment rulemaking requirements under the APA.
Notwithstanding this exemption, the Department is soliciting public
comment on these proposed interpretations so that we can provide
additional details and clarifications in a notice of final
interpretations.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Electronic Access to This Document
You may review this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.
Dated: April 29, 2008.
Margaret Spellings,
Secretary of Education.
[FR Doc. E8-9708 Filed 5-1-08; 8:45 am]
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