Department Seeks to Clarify ESEA School Choice Mandates

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New ESEA Lest any reader miss it, Secretary of Education Rod Paige resorted last month to bold and italicized print to make perfectly clear a key point about the new federal education law: "[T]he new choice requirements must be implemented beginning this fall."

The June 14 letter to state and school officials provides initial direction on requirements designed to expand educational options for children in struggling schools. The Department of Education will not issue final regulations and guidance until at least August, after the school year in many places will have already begun.

But even with the letter in hand, more questions than answers remain in the minds of some of those officials, as was evidenced during a recent Education Department conference.

Under the "No Child Left Behind" Act of 2001, if a school fails for two years in a row to meet a state-set bar for "adequate" academic progress, the district must allow some form of public school choice and use a portion of its federal Title I dollars to pay transportation costs.

If the school fails to make adequate progress for three years running, the district must also use a portion of its federal aid to provide supplemental education services, such as tutoring for its students. Parents will be able to select from a list of state-approved providers, including for-profit providers, nonprofit organizations, or even the district itself.

Just last week, the Education Department announced that more than 8,600 schools nationwide have been identified by states as needing improvement. All of those schools must meet the new requirement to provide school choice and pay for transportation. A smaller subset will have to comply with the supplemental-services provisions. ("Frustration Grows as States Await 'Adequate Yearly Progress' Advice.")

Starter Kit

Department officials have long made clear that they expect action on the school choice measures in time for the coming school year. Secretary Paige said his letter was not meant to be exhaustive in its guidance, but rather to provide enough direction to help states and districts get started.

In the letter, he "strongly" encouraged districts to provide several school choice options for students.

At the same time, Undersecretary of Education Eugene W. Hickok explained at the June 13-14 conference in Washington, districts can impose reasonable limits.

For example, he said the Chicago public schools need not provide free transportation to transfer a child from one end of the big-city district to another.

"It would be very, very expensive, and it wouldn't be practical," Mr. Hickok said. "So what many cities are coming up with are sort of 'zones,' where you have several opportunities for choice and transportation provided within those zones."

The letter also outlined some "do's" and "don'ts" on other school choice issues.

Many urban school leaders have cited space as a barrier to greater choice. The department emphasized that when schools define "capacity," it should refer to meeting health and safety codes.

"Capacity needs to refer to real limits on capacity, and not just, 'We don't want to accept any more kids in our classes. We like a small class,'" Mr. Hickok said.

During a question-and-answer session at the conference, department officials could not say yet if the federal choice mandate would override state laws that limit class size.

Secretary Paige, in his letter last month, wrote that while districts "may take into account" court-ordered desegregation plans in offering choice, those districts are not exempt from the choice requirement. If a desegregation plan prohibits a district from offering any choice options, he said, the district "should secure appropriate changes to the plan."

During the question-and-answer session, Rodney Watson, an assistant state superintendent in Louisiana, asked for guidance on how he could persuade a judge to change a court order.

"I'm going to ask the question again: How do we do it, because it's a legal issue?" Mr. Watson said.

Department lawyer Steven Y. Winnick replied that Louisiana officials would need to go back to the court and explain the matter.

"I recognize this is a difficult issue," he said. "I think it's something maybe we can talk to you about whether there are ways we can help in making the case to a court."

Secretary Paige's letter also discussed supplemental services. It said, for instance, that states must ensure that all providers have a demonstrated record of effectiveness in improving achievement, though some officials at the conference suggested they needed more clarification on what that stipulation meant.

At the same time, Mr. Paige said states may not require providers to hire only certified teachers.

Jeff Simering, the legislative director for the Washington-based Council of the Great City Schools, which represents large urban districts, said he was pleased with the department's preliminary guidance.

"We think that they followed the letter of the law and didn't embellish upon it, and that's what we were asking them to do," he said. "I like to find areas where I can be critical of folks, but at this point, they've done a decent job."

Vol. 21, Issue 42, Page 40

Published in Print: July 10, 2002, as Department Seeks to Clarify ESEA School Choice Mandates
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