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Published in Print: August 7, 2002, as Long-Awaited ESEA Rules Are Released

Long-Awaited ESEA Rules Are Released

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New ESEA The Department of Education released proposed regulations last week fleshing out critical sections of Title I, from accountability to teacher qualifications, under the "No Child Left Behind" Act of 2001.

While the draft rules generally adhere closely to the language in the law, federal officials tried to reassure states and districts, both in that document and in a July 24 letter, that they still have "significant flexibility" in meeting the measure's accountability provisions. State leaders have been asking for some wiggle room so they do not have to totally revamp existing accountability systems or identify large numbers of schools as failing to progress under the law.

For More Info
The proposed Title I regulations are available from the Office of Elementary and Secondary Education . (Requires Adobe's Acrobat Reader.) See also Secretary Paige's July 24 letter to education officials on the ESEA's accountibility provisions.

"The purpose of the statute, for both assessments and accountability, is to build on high-quality accountability systems that states already have in place, not to require every state to start from scratch," Secretary of Education Rod Paige wrote in the letter last month to state and local education leaders.

"We are aware that there are rigorous models that states have already developed that may achieve the same fundamental principles of the statute, although through different approaches," the department adds in the explanatory language that precedes the draft regulations. "We specifically invite states that have been using different models to comment on the statutory provisions that might affect their use, and how these requirements could be incorporated into their current systems."

The conciliatory tone of both the draft rules and Secretary Paige's letter, which addresses the "adequate yearly progress" requirements in the law, was greeted with relief by a number of state schools chiefs.

Michael Ward

"I'm really encouraged by the tone of the secretary's letter, as well as the content," said Michael Ward, North Carolina's superintendent of public instruction. "There are things that we've discussed with the secretary and the department over the past few months to which, I believe, he was very responsive."

The Education Department will accept comments on the proposed regulations for 30 days after they are published in the Federal Register, which was expected to take place this week, and may make revisions before publishing the final rules. The department also plans to provide additional, nonregulatory guidance on Title I, the $10.35 billion program that provides the biggest chunk of federal funding to schools with significant proportions of disadvantaged children.

Not 'One Size Fits All'

The 245-page draft regulations, which the department posted on its Web site Aug. 1, cover major portions of Title I of the revised Elementary and Secondary Education Act, which were not addressed in the rules on standards and assessments published July 6. In addition to clarifying the accountability provisions in the law, the proposed rules address dollar allocations; schoolwide projects; migrant education; programs for children who are neglected, delinquent, or at risk of dropping out of school; and teacher and paraprofessional qualifications.

In his July 24 letter, Mr. Paige sought to clarify the "adequate yearly progress" provisions in the law, which spell out the annual goals schools must meet to avoid being labeled as needing improvement and subject to a range of increasingly serious consequences.

Many state officials had expressed concern that the criteria for adequate yearly progress detailed in the law were too rigid and required them to identify more schools as needing improvement than they could possibly help. ("Frustration Grows as States Await 'Adequate Yearly Progress' Advice," July 10, 2002.)

But in his letter, Mr. Paige noted, "The law does not prescribe how states must officially designate schools that do not meet AYP requirements."

Rather than labeling all schools alike, the letter suggested, states might want to devise a number of categories to differentiate among them. For example, they might want separate categories for schools that fail to meet their AYP targets for all groups of students, and those that fail to meet them for only one or two subgroups.

Similarly, the letter said states were free to direct their resources and tailor their interventions based on the individual needs of each school. "It does not necessitate a 'one size fits all' response without regard to how well a school is doing overall," Mr. Paige wrote.

North Carolina's Mr. Ward said the letter had addressed "our interest in being able to distinguish in reporting between schools that are missing AYP by a little and schools that are missing AYP by a mile."

"It's also, I think, a really pragmatic issue from the standpoint of use of resources," the state chief said. "You want to focus resources where triage is needed most."

Early Submissions Sought

States are required to submit their definitions of adequate yearly progress to the Education Department by the beginning of 2003. Those applying for State Flex, a demonstration program that gives states additional flexibility under the law, will have to submit their definitions for approval this fall. All definitions will be peer-reviewed, as the No Child Left Behind statute requires, by a panel that includes representatives of parents, teachers, and state and local education agencies.

In his letter, however, Secretary Paige encouraged states to submit their plans for review this fall even if they were not applying for State Flex, and he indicated that those front-runners could serve as models to test different approaches to AYP.

"Approaches to meeting the statutory requirements that are at least as rigorous as the requirements of the statute and the regulations will be considered," according to Mr. Paige, provided that a state shows its system meets a number of criteria spelled out in the letter.

David P. Driscoll

"I'm very pleased with the letter," said David P. Driscoll, the commissioner of education in Massachusetts. "I believe there are places where there's some flexibility, and that's all we're looking for."

Both Mr. Driscoll and Mr. Ward expressed interest in having their states be among those that submit their definitions to the federal department sooner rather than later. "That's really where the rubber is going to hit the road," Mr. Ward said. "It will be through that negotiated process where we get the clearest sense of how workable we can make this for all the states."

Options Highlighted

In the introduction to the draft regulations, meanwhile, the Education Department highlights several areas in which states have some flexibility in how they address the requirements for adequate yearly progress.

For example, the rules specify that states must set separate, annual goals for both reading and math performance and then raise those goals by steady increments so that all students perform at the "proficient" level on state tests by 2013-14. Even if a state changes its testing system or its definition of adequate progress—as many states will have to do to comply with the law's requirement for annual testing in grades 3-8—it cannot extend the deadline for having all students reach proficiency on state tests.

But the draft rules permit states to set different "starting points" for each "grade span" of students. That would allow states to set the initial bar lower for age groups with the worst current performance, such as high schoolers.

For a school to make adequate progress, both its total student population and specific groups of students—the economically disadvantaged, major racial and ethnic groups, students with disabilities, and those with limited English proficiency—must meet separate, annual targets in reading and mathematics. Scores in one area cannot compensate for weaker performance in another.

In addition, a school must test at least 95 percent of the students in each group. A state's definition of AYP also must include graduation rates for high schools and an additional indicator for elementary and middle schools.

The draft rules define the high school graduation rate as "the percentage of students who graduate from high school with a regular diploma (not including a GED) in the standard number of years." But the Education Department proposes permitting states to submit an alternative definition for the secretary's approval, if it would more accurately measure the graduation rate.

States also would have options in determining how to hold accountable schools that do not include any of the grades tested in the state assessment system, chiefly K-2 schools, as well as those whose purpose is to serve students for less than a full academic year. States do not need to administer a formal assessment to students in those schools.

States also could choose the minimum number of students needed in each subgroup "to produce statistically reliable results." If the number of students in a subgroup was too small, states would not need to identify a school as failing to make adequate progress even if fewer than 95 percent of students in that subgroup took the test or didn't meet the targets.

Alternative Assessments

While the draft rules provide states some maneuverability, they also underscore the department's intent to hold all children to high standards.

In particular, the rules specify that only students with the most significant disabilities should be taking "alternate assessments," rather than the state's regular tests, and very few of those students should be held to other than a grade-level standard for purposes of judging adequate progress. The draft rules also require reporting on the number of students with disabilities who take alternative assessments.

Based on "current prevalence rates of students with the most significant cognitive disabilities," the draft rules state that no more than 0.5 percent of all students tested in a state or district can be held to other than a grade-level standard for accountability purposes. If more than 0.5 percent of disabled students took alternative assessments, they would have to be held to the state's grade-level standards.

Jeff Simmering, the legislative director of the Council of the Great City Schools, which represents the nation's large urban districts, said that while his organization was "pretty pleased with what's come out of the department," the draft rules on alternative assessments "may be an area of some concern."

The issue came up during the negotiated rulemaking on the ESEA provisions on standards and assessments. "Since we were dealing, and quite frankly struggling, with the alternate assessments and the off-grade testing during negotiated rulemaking," Mr. Simmering said, "I believe that would have been a more appropriate forum to raise that."

Vol. 21, Issue 43, Pages 1,36-37

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