Department of Education: Wednesday, April 23, 2008

Wednesday,
April 23, 2008
Part II
Department of
Education
34 CFR Part 200
Title I—Improving the Academic
Achievement of the Disadvantaged;
Proposed Rule
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22020 Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Proposed Rules
DEPARTMENT OF EDUCATION Federal Relay Service (FRS) at 1–800– assessments, publicly reported data,
877–8339. assistance for students and schools that
34 CFR Part 200 Individuals with disabilities may fall behind, and accountability for
RIN 1810–AB01
obtain this document in an alternative results. NCLB’s focus on accountability
format (e.g., Braille, large print, means that all States are now collecting
[Docket ID ED–2008–OESE–0003] audiotape, or computer diskette) on better information to help schools,
request to the contact person listed educators, policymakers, and parents
Title I—Improving the Academic under FOR FURTHER INFORMATION make the best decisions for students.
Achievement of the Disadvantaged CONTACT. The Federal government has supported
AGENCY: Office of Elementary and SUPPLEMENTARY INFORMATION: NCLB’s implementation with significant
Secondary Education, Department of resources: $165 billion in funding for
Invitation to Comment NCLB from 2002 to 2008, including an
Education.
ACTION: Notice of proposed rulemaking. We invite you to submit comments increase of 40 percent in current dollars
regarding these proposed regulations. since 2001. This funding increase was
SUMMARY: The Secretary proposes to To ensure that your comments have accompanied by a philosophical
amend the regulations governing maximum effect in developing the final change—that education is not just about
programs administered under Part A of regulations, we urge you to identify how much we’re spending, but about
Title I of the Elementary and Secondary clearly the specific section or sections of how well we’re serving students.
Education Act of 1965, as amended the proposed regulations that each of The 2007–2008 school year is the
(ESEA), to clarify and strengthen current your comments addresses and to arrange sixth full school year since the passage
Title I regulations in the areas of your comments in the same order as the of NCLB. Throughout these six years,
assessment, accountability, public proposed regulations. we carefully monitored the law’s
school choice, and supplemental We invite you to assist us in implementation. We gained valuable
educational services. complying with the specific information from States, districts, and
requirements of Executive Order 12866 schools about how implementation of
DATES: We must receive your comments
and its overall requirement of reducing the law’s requirements could be
on or before June 23, 2008.
regulatory burden that might result from improved to ensure that all students
ADDRESSES: Submit your comments reach proficiency in reading/language
these proposed regulations. Please let us
through the Federal eRulemaking Portal know of any further opportunities we arts and mathematics by the 2013–2014
or via postal mail, commercial delivery, should take to reduce potential costs or school year. For example, in the first
or hand delivery. We will not accept increase potential benefits while several years following the passage of
comments by fax or by e-mail. Please preserving the effective and efficient NCLB, we received frequent requests
submit your comments only one time, in administration of the program. from States to provide additional
order to ensure that we do not receive During and after the comment period, flexibility to measure the achievement
duplicate copies. In addition, please you may inspect all public comments of students with disabilities and
include the Docket ID at the top of your about these proposed regulations by students with limited English
comments. accessing Regulations.gov. You may also proficiency (LEP) for purposes of
• Federal eRulemaking Portal: Go to inspect the comments, in person, in adequate yearly progress (AYP)
http://www.regulations.gov to submit room 3W202, 400 Maryland Avenue, determinations. In response to these
your comments electronically. SW., Washington, DC, between the requests, the Department promulgated
Information on using Regulations.gov, hours of 8:30 a.m. and 4 p.m., Eastern regulations to permit States to include
including instructions for accessing time, Monday through Friday of each in their AYP determinations the
agency documents, submitting week except Federal holidays. proficient and advanced scores of
comments, and viewing the docket is students with disabilities assessed based
available on the site under ‘‘How To Use Assistance to Individuals With on alternate and modified academic
This Site.’’ Disabilities in Reviewing the achievement standards, as well as
• Postal Mail, Commercial Delivery, Rulemaking Record regulations that provide flexibility in
or Hand Delivery. If you mail or deliver On request, we will supply an the assessment of, and accountability
your comments about these proposed appropriate aid, such as a reader or for, recently arrived and former LEP
regulations, address them to Zollie print magnifier, to an individual with a students.
Stevenson, Jr., U.S. Department of disability who needs assistance to During this time, States developed
Education, 400 Maryland Avenue, SW., review the comments or other more sophisticated State data systems
room 3W230, Washington, DC 20202– documents in the public rulemaking that now permit more accurate
6132. record for these proposed regulations. If calculations of high school graduation
Privacy Note: The Department’s policy for you want to schedule an appointment rates, as well as the measurement of
comments received from members of the for this type of aid, please contact the individual student academic growth
public (including those comments submitted person listed under FOR FURTHER from one year to the next. Higher-
by mail, commercial delivery, or hand INFORMATION CONTACT. quality State accountability and
delivery) is to make these submissions assessment systems are in place thanks
available for public viewing in their entirety Background to the rigorous standards established
on the Federal eRulemaking Portal at http:// The No Child Left Behind Act of 2001 under NCLB, the assessment and
www.regulations.gov. All submissions will be (NCLB), which amended and accountability peer review process, and
posted to the Federal eRulemaking Portal reauthorized the ESEA, fundamentally most importantly, the hard work of the
without change, including personal

identifiers and contact information.
changed the way States and local school States.
districts help ensure that all students With these advancements, we believe
FOR FURTHER INFORMATION CONTACT: meet grade-level expectations or better. that it is time to further amend and
Zollie Stevenson, Jr. at 202–260–1824. If The law’s core principles, particularly update our regulations to address
you use a telecommunications device in Title I, guide the nation’s certain key areas. Accordingly, these
for the deaf (TDD), you may call the conversation on education: annual proposed regulations build on the
Federal Register / Vol. 73, No. 79 / Wednesday, April 23, 2008 / Proposed Rules 22021
advancements of State accountability • Using SES and school choice funds States may use a single test or several
and assessment systems, while for parent outreach. tests, or rely on one item format or
incorporating key feedback from the • Maximizing use of funds for public several item formats (such as multiple
field into an even clearer vision of what school choice-related transportation and choice or constructed response).
it takes to educate each and every one SES. Specifically, the proposed regulatory
of our Nation’s schoolchildren. Issuing regulations that strengthen changes would clarify that, to meet the
We want to ensure that these Title I implementation in these areas requirement to use multiple measures, a
regulations are as effective as possible in will help bring about higher-quality State may also choose to develop an
advancing the key principles of NCLB assessments and stronger accountability assessment that relies on a combination
and, therefore, want to provide the for results, as well as provide parents of question formats, so long as the
opportunity for as much public input on with the information they need to make assessment reflects the degree of
the proposed regulations as possible. informed decisions about public school complexity of the cognitive concepts
The public will have 60 days to choice and SES. We look forward to and processes in the State content
comment on these proposed regulations. receiving your comments on these standards. Multiple assessments to
We also will provide opportunities for proposed regulations to ensure that they measure student achievement in a
public input during regional public accomplish our intended objectives. subject area may also be used in order
meetings; the dates, times, and locations to assess mastery of the breadth of a
Significant Proposed Regulations particular content domain. For example,
of these meetings will be announced in
a separate notice in the Federal We discuss substantive issues under some States use reading and writing
Register. the sections of the proposed regulations assessments to calculate AYP in
These proposed regulations would to which they pertain. Generally, we do reading/language arts; other States use
clarify and strengthen current not address proposed regulatory algebra and probability assessments to
regulations in the areas of assessment, provisions that are technical or calculate AYP for mathematics.
accountability, supplemental otherwise minor in effect. These clarifications are necessary to
educational services (SES), and public ensure that States clearly understand
Section 200.2—State Responsibilities for
school choice. Specifically, the that their assessments may include
Assessment
proposed regulations address the single or multiple item formats, and that
Statute: Section 1111(b)(3)(C)(vi) of they may use multiple assessments to
following key areas: the ESEA states that assessments must measure a specific content domain; they
• Assessing higher-order thinking involve multiple up-to-date measures of do not impose new requirements or
skills through multiple measures. student academic achievement, require States to change their current
• Increasing subgroup accountability. including measures that assess higher- assessment systems.
• Ensuring that States and local order thinking skills and understanding.
educational agencies (LEAs) include Current Regulations: Section Section 200.7—Disaggregation of Data
State data from the National Assessment 200.2(b)(7) of the Title I regulations Statute: Section 1111(b)(2)(C)(v) of the
of Educational Progress (NAEP) on State essentially repeats the statutory ESEA requires a State to define AYP so
and local report cards. language. that its annual measurable objectives
• Establishing a uniform and accurate Proposed Regulations: Proposed apply to all students as well as to
method that States must use to calculate § 200.2(b)(7)(i) and (ii) would clarify specific subgroups of students —that is,
high school graduation rates and setting that measures of student academic economically disadvantaged students;
high school graduation rate goals for achievement may include multiple students from major racial and ethnic
AYP purposes. types of questions that range in groups; students with disabilities; and
• Including disaggregated graduation complexity and reflect the cognitive LEP students. Section 1111(b)(2)(I) of
rates in AYP calculations. concepts and processes in the State the ESEA makes clear that, for a school
• Permitting the inclusion of content standards within a single or LEA to make AYP, all students as
measures of individual student assessment, as well as multiple well as each subgroup of students must
academic growth in a State’s definition assessments within a subject area. meet or exceed the State’s annual
of AYP. Reasons: There has been some measurable objectives. Sections
• Creating a National Technical misunderstanding among parents, 1111(h)(1)(C) and 1111(h)(2) require that
Advisory Council to advise the teachers, and administrators that States and LEAs report on their report
Secretary on complex issues related to student achievement, for purposes of cards academic achievement data
State assessment and accountability accountability determinations under disaggregated by these same subgroups.
systems. Title I, must be based on a single Sections 1111(b)(2)(C) and 1111(h)(1)(C)
• Identifying schools and LEAs for assessment. This is not true; in fact, the of the ESEA, however, do not require a
improvement. law requires that a State’s assessment State to use such disaggregated data for
• Ensuring that parents receive the include ‘‘multiple measures.’’ The determining AYP or reporting
information they need to exercise their proposed language would clarify what is achievement data by subgroup if the
public school choice and SES options. meant by this concept, which is number of students in a subgroup is
• Providing information to the public included in the law to ensure that a insufficient to yield statistically reliable
about participation in SES and public State’s assessment system measure the information or if the results would
school choice. full range of cognitive complexity in the reveal personally identifiable
• Strengthening the requirements for State’s academic content standards. information about an individual
schools in restructuring. Assessments, therefore, should include student.
• Requiring States to be more items that measure both higher order Current Regulations: Section 200.7(a)
transparent about how they monitor thinking skills (e.g., reasoning, prohibits a State from using
LEAs’ implementation of SES and synthesis, analysis) as well as disaggregated data for one or more
strengthening the evidence that States knowledge and recall items to assess the subgroups to report achievement results
must consider when approving and depth and breadth of mastery of a or to identify schools in need of
monitoring SES providers. particular content domain. In so doing, improvement, corrective action, or
restructuring if the number of students requires that specified student statute, in order for a school to be held
in a subgroup is insufficient to yield subgroups must meet a State’s annual accountable for a student subgroup, the
statistically reliable information. measurable objectives and other number of students in that subgroup
Accordingly, § 200.7(a)(2) requires a academic indicators in order for a must exceed the State-established
State, using sound statistical methods, school or LEA to make AYP. NCLB also minimum subgroup size. Logically, the
to determine and justify in its State Plan requires that States and LEAs report to larger a State’s minimum subgroup size,
the minimum number of students the public on the achievement of their the less likely students will constitute
sufficient to yield statistically reliable student subgroups. an accountability subgroup at the school
information for each purpose for which These disaggregation requirements are level and, thus, the school would not be
disaggregated data are used (e.g., for tempered by the need to ensure held accountable for the performance of
determining AYP and for reporting statistical reliability and privacy. Thus, that subgroup.
subgroup achievement on State and LEA sections 1111(b)(2)(C)(v) and Setting minimum subgroup sizes that
report cards). 1111(h)(1)(C) of the ESEA and current are statistically reliable has been a
Proposed Regulations: In determining § 200.7 do not require accountability challenge for States. This challenge may
a minimum subgroup size, a State must determinations or reporting by student stem from the fact that the concept of
balance achieving statistical reliability subgroup if the size of the subgroup is ‘‘statistical reliability’’ normally refers
with maximizing inclusion of subgroups too small to yield statistically reliable to the adequacy of a sample size to
for accountability purposes (consistent results or would reveal personally produce results with enough precision
with the statutory requirements to hold identifiable information about to meet the purpose of a study or report.
schools and LEAs accountable for the individual students. Current The larger the sample drawn, the
achievement of specific subgroups). § 200.7(a)(1), therefore, requires a State smaller the sampling error, variability,
Thus, proposed § 200.7(a)(2)(i)(B) would to set a minimum subgroup size. A and confidence intervals around the
require a State, as it considers statistical minimum subgroup size that is too estimate, and the higher the resulting
reliability in setting its minimum small may yield unreliable data or precision of the estimate. However,
subgroup size, to ensure, to the reveal the identity of individual under NCLB, all students in the tested
maximum extent practicable, that all students. A minimum subgroup size, grades are required to be assessed.
student subgroups are included, however, should be no larger than Therefore, in the NCLB context,
particularly at the school level, for necessary to ensure the protection of statistical reliability is obtained through
purposes of making accountability privacy for individuals and to allow for the requirement to test the population of
decisions. statistically reliable results of the students while addressing concerns
Proposed § 200.7(a)(2)(ii) would aggregate performance of the students about instability of scores in small
require each State to revise its who make up a subgroup. Moreover, the subgroups by using a minimum
Consolidated State Application minimum subgroup size should be subgroup size. The use of a minimum
Accountability Workbook (which is part small enough to ensure the maximum subgroup size is not as much a
of the State Plan and is hereafter inclusion of student subgroups in ‘‘sampling’’ issue, as it is a protection to
referred to as the Accountability accountability decisions, consistent minimize the instability of scores that
Workbook) to include (1) an explanation with the statutory requirements to may occur when there are a small
of how the State’s minimum subgroup disaggregate data. number of scores in a population. A
size meets proposed § 200.7(a)(2)(i); (2) Some have argued that the minimum subgroup size mitigates the
an explanation of how other heterogeneous nature of student instability of scores and reduces the
components of the State’s AYP populations requires a relatively large likelihood that an extreme score (high or
definition, in addition to the State’s minimum subgroup size in order to low) will positively or negatively affect
minimum subgroup size, interact to reflect accurately the achievement of the overall score for the subgroup.
affect the statistical reliability of the students in AYP determinations. We There have been a number of
data and to ensure maximum inclusion believe, however, that in many cases developments in State assessment and
of all students and student subgroups; minimum subgroup sizes are larger than accountability systems since NCLB was
and (3) information on the number and is necessary to ensure statistically enacted and Accountability Workbooks
percentage of students and student reliable information; the result is that a were first approved. These
subgroups excluded from school-level large number of subgroups (e.g., low- developments have provided States the
accountability determinations. income students, students in some opportunity to be more precise,
Proposed § 200.7(a)(2)(iii) would racial or ethnic subgroups, LEP consistent, and transparent in the
require each State to submit a revised students, and students with disabilities) application of statistical reliability
Accountability Workbook that are excluded from school-level concepts under NCLB. Specifically,
incorporates the information in accountability determinations. when NCLB was enacted, most States
proposed § 200.7(a)(2)(ii) for technical Some estimates indicate that large did not yet assess all students in grades
assistance and peer review no later than minimum subgroup sizes result in three through eight and once in the high
six months after the effective date of the nearly 2 million students (or about 1 in school grade span as required under
regulation. every 14 test scores) not being counted NCLB. Now, virtually all students in all
Reasons: One of the most significant in NCLB subgroup accountability required grades are assessed; therefore,
aspects of NCLB is its focus on holding determinations at the school level and test scores generally reflect actual
schools and LEAs accountable for the minority students are as much as seven proficiency levels of schools rather than
achievement of specific student times more likely than white students to estimates based on the scores of
subgroups. Prior to NCLB, the overall students in one grade. States also have
have their scores excluded from school-

achievement of students in a school level AYP subgroup calculations.1 more options to accurately assess
often masked the low achievement of student learning, particularly for
Under the current regulations and
certain subgroups of students. To ensure students with disabilities and LEP
that schools and LEAs are held 1 Bass, F., Ziegler Dizon, N., & Feller, B. (2006, students. In addition, States have made
accountable for the achievement of all April 18). States Omit Minorities’ School Scores. tremendous advances in their abilities
their students, NCLB specifically Associated Press. to gather and analyze student
achievement data. These advances help those systems are designed to produce assessments. For example, the NAEP is
States strike a more optimal balance reliable accountability determinations not aligned with State academic content
between reasonable subgroup that maximize the inclusion of students and achievement standards and,
accountability and inclusion of the and student subgroups, particularly in therefore, does not necessarily reflect
maximum number of students in school- school-level accountability the curriculum and instruction to which
level AYP determinations. determinations. The Department will students are exposed in the classroom.
For these reasons, the proposed work with the National Technical Therefore, the Department encourages
regulations would require a State to Advisory Council that would be States to provide information to parents
ensure that its minimum subgroup size established under the proposed on how to interpret the NAEP and State
is large enough to produce statistically regulations to develop appropriate data. When the NAEP assessment
reliable information for all purposes for guidelines for the peer review. information is presented in the
which disaggregated data are used (e.g., appropriate context, the Department
the use of data for reporting and making Section 200.11—Participation in NAEP
believes information on how students in
accountability decisions) yet limited to Statute: Section 1111(c)(2) of the a State are performing on State
the smallest number possible in order to ESEA requires States to participate in assessments compared to their
maximize the inclusion of student the National Assessment of Educational performance on the NAEP will provide
subgroups in accountability decisions. Progress (NAEP) in reading and for greater transparency and give
Furthermore, while the proposed mathematics for the fourth and eighth parents another tool to assess the
regulations would not require a specific grades as a condition of receiving Title education system in their State.
minimum subgroup size, they would I funds, and section 1112(b)(1)(F) of the
require each State to revise its ESEA requires districts, if selected, to Section 200.19—Other Academic
Accountability Workbook to explain participate in the NAEP. The general Indicators
how the State’s current or proposed authorization for the NAEP Statute: Section 1111(b)(2)(C) of the
minimum subgroup size meets requirements is outlined in section 411 ESEA outlines the specific components
§ 200.7(a)(2)(i). A State would also be of the National Education Statistics Act that must be included in a State’s
required to explain how other elements of 1994 (20 U.S.C. 9010). definition of AYP. Subparagraph (vi) of
of the State’s AYP definition (such as Current Regulations: Section 200.11 that section specifically provides that a
the use of confidence intervals, requires each State that receives funds State’s definition of AYP must include,
performance indexes, and uniform under Title I, part A of the ESEA to in accordance with section 1111(b)(2)(D)
averaging; the State’s definition of full participate in biennial State NAEP of the ESEA, other academic indicators,
academic year), in concert with the academic assessments of fourth and and that the other academic indicator
State’s minimum subgroup size, affect eighth grade reading and mathematics. for high schools must be the graduation
the statistical reliability of It also requires an LEA that receives rate. (Graduation rate is generally
accountability determinations as well as these funds to participate, if selected, in defined in this section as the percentage
impact the inclusion of all students and the State NAEP assessments. of students who graduate from
student subgroups in those Proposed Regulations: Proposed secondary school with a regular
determinations. States that propose § 200.11(c) would require a State to diploma in the standard number of
large minimum subgroup sizes and report the most recent available years.) Section 1111(b)(2)(I)(i) of the
include other components in their AYP academic achievement results from ESEA further provides that, if any group
definitions that result in the exclusion NAEP reading and mathematics of students identified in section
of large numbers of students or student assessments on the same public report 1111(b)(2)(C)(v) 2 does not meet the
subgroups would be subject to close card as it reports the results of its State annual measurable objectives in any
scrutiny. assessments. It also would require an particular year, the school, under what
The proposed regulations would also LEA to report the State NAEP is commonly known as the ‘‘safe
require each State to include in its assessment data on its report card. harbor’’ provision, is still considered to
Accountability Workbook data on the Reasons: The NAEP is the only have made AYP for that year if the
number and percentage of students and nationally representative and percentage of students in that group
subgroups that are excluded from continuing assessment of what who did not meet or exceed the
school-level accountability decisions as America’s students know and can do in proficient level of academic
a result of the various components of various grades and subject areas and, achievement on the State assessment for
the State’s AYP definition. Making this therefore, is an important source of that year decreased by 10 percent from
information available through a State’s information about student achievement. the previous year, and that group made
Accountability Workbook should enable We propose to require States and LEAs progress on one or more of the other
the public to gain a better understanding to include information on NAEP scores academic indicators.
of how schools are being held on the same report cards that provide Current Regulations: Section
accountable for the performance of their data on the performance of students on 200.19(a)(1) of the regulations reflects
students and student subgroups. State assessments to ensure that NAEP the statutory requirements and requires
Finally, we are proposing that each data are easily accessible and available States to use graduation rate as the other
State submit its Accountability to parents and the public and to provide academic indicator for determining AYP
Workbook, incorporating the them with a tool to compare how for high schools. Under the current
information required by the proposed students in a State are performing on the regulations, States have some flexibility
regulations, for technical assistance and NAEP with student performance on in calculating graduation rates. States
peer review. We believe this would be State assessments. also have flexibility in setting
an appropriate time to again have The Department recognizes that

outside experts examine all the factors simple comparisons of student 2 These groups are: (1) All public elementary and
that bear on the statistical reliability of performance on the NAEP and State secondary school students, (2) economically
disadvantaged students, (3) students from major
and inclusion of students in States’ assessments cannot be made without racial and ethnic groups, (4) students with
accountability systems. This will help some understanding of the key disabilities, and (5) students with limited English
the Department determine whether differences between the two proficiency.
graduation rate goals or determining the by the National Governors Association enrollment of that class in eighth grade
improvement in graduation rates needed (NGA), and agreed to by all 50 governors the prior year and in tenth grade the
for a school or district to make AYP. in 2005, proposed § 200.19(a)(1) would subsequent year. For any school or
Graduation rate is defined in the require States to use a uniform and district that does not have an eighth
regulations as: (1) the percentage of accurate method of calculating grade, the AFGR would be estimated by
students, measured from the beginning graduation rates by defining graduation averaging the enrollment of the
of high school, who graduate from high rate as the number of students who freshman class with the enrollment of
school with a regular diploma (not graduate in the standard number of the tenth grade class in the subsequent
including an alternative degree, such as years with a regular high school year. The proposed regulations would
a General Educational Development diploma divided by the number of not permit States to use the AFGR to
(GED) credential or another type of students who form the ‘‘adjusted calculate graduation rates after 2011–
certificate that is not fully aligned with cohort’’ for that graduating class. The 2012; after 2011–2012, all States would
the State’s academic standards) in the ‘‘adjusted cohort’’ is the group of have to calculate graduation rates under
standard number of years; or (2) another students who entered the 9th grade four proposed § 200.19(a)(1).
definition, developed by the State and years earlier, and any students who
approved by the Secretary in the State Graduation rate goals and continuous
transferred into or entered the cohort in
Plan, that more accurately measures the and substantial improvement measures.
grades 9 through 12, minus any students
rate of student graduation from high Proposed § 200.19(d)(1) would provide
removed from the cohort. To remove a
school with a regular diploma. In two ways for States to determine
student from the cohort, a school or LEA
defining graduation rate, the State must whether their schools and LEAs meet
would need to confirm that the student
avoid counting a dropout as a transfer. the graduation rate component of AYP.
either enrolled in another educational
Section 200.19(d)(1) states that a State Beginning in the 2008–2009 school year,
program that culminates in the award of
may, but is not required to, hold schools a regular high school diploma or is in order for a high school or LEA to be
and LEAs accountable for achieving deceased. A student who is retained in considered to have met the other
higher goals on its other academic grade, enrolls in a GED program, or academic indicator for purposes of
indicators, including, with respect to leaves school for any other reason determining AYP, the school or LEA
high schools, the graduation rate, over would remain in the adjusted cohort for must either (1) meet a graduation rate
the course of the timeline established by the purposes of calculating the goal, established by the State and
the State under § 200.15. Further, graduation rate. approved by the Secretary that
§ 200.20 provides that, in order for a represents the rate the State expects all
Proposed § 200.19(a)(1)(i)(C)(2) would
school or LEA to make AYP, each high schools to achieve; or (2)
permit a State to propose, for approval
subgroup of students must meet or demonstrate continuous and substantial
by the Secretary, an alternate definition
exceed the State’s annual measurable improvement from the prior year toward
of ‘‘standard number of years’’ that
objectives and the State’s goals for the meeting or exceeding that goal, as
would apply to limited categories of
other academic indicator. defined by the State and approved by
Section 200.19(d)(2)(i) requires a State students who, under certain conditions,
may take longer to graduate (as is the the Secretary.
to disaggregate its other academic
case, for example, for a small number of Disaggregation of graduation rates.
indicators by subgroup for purposes of
students with disabilities or students in Proposed § 200.19(e)(1) would require
reporting under section 1111(h) of the
ESEA and for using the ‘‘safe harbor’’ ‘‘early college high schools’’ who earn each State, no later than the 2012–2013
provision to determine AYP. Section an associate’s degree along with a high school year, to calculate the graduation
200.19(d)(2)(ii) states that a State need school diploma). rate at the school, LEA, and State levels
not disaggregate those indicators for A State that does not have in effect a in the aggregate and disaggregated by
determining AYP except as provided for system to accurately track transfers for the subgroups in § 200.13(b)(7)(ii) for
in section 1111(b)(2)(C)(vii) (which calculation of the graduation rate reporting under section 1111(h) of the
permits States to establish any other defined in proposed § 200.19(a)(1)(i) ESEA and for determining AYP.
academic indicators in addition to those would be required to use the averaged Proposed § 200.19(e)(2)(i) and (ii) would
required under section freshman graduation rate (AFGR) on a require a State, prior to the 2012–2013
1111(b)(2)(C)(vi)). transitional basis. The AFGR would be school year, to disaggregate the
Proposed Regulations: We propose defined as the number of high school graduation rate data at the school, LEA,
several changes to the regulations students who graduate in the standard and State levels for reporting purposes
regarding the use of high school number of years with a regular high and for determining ‘‘safe harbor’’ and
graduation rate as the other academic school diploma divided by the number at the LEA and State levels for
indicator for determining AYP for high of students in the incoming freshman determining AYP. Table 1 shows the
schools. class four years earlier, which is proposed disaggregation requirements
Definition of graduation rate. estimated by averaging the enrollment for determining AYP and for reporting
Consistent with the definition adopted of that freshman class with the 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 deter- Yes .................................... Yes .................................... Yes.
mining ‘‘safe harbor’’).
LEA .................................... Yes .................................... Yes .................................... Yes .................................... Yes.
State .................................. Yes .................................... Yes .................................... Yes .................................... Yes.
Reasons: There is an urgent need to dropouts—and yet nearly forty percent calculating high school graduation rates
improve America’s high schools and of these schools are making AYP is necessary in order to provide parents
ensure that all students graduate from because of inaccurate graduation rate and the public with important
high school ready for postsecondary calculations and a lack of accountability information about the success of a
instruction or the workforce. A uniform for all students.6 school, district, and State in graduating
and accurate method of calculating Because the current regulations allow students in the standard number of
graduation rates is needed to raise States latitude in determining how years and to ensure that AYP
expectations and to hold schools, graduation rates are measured, the determinations are based on valid
districts, and States accountable for accuracy of State-calculated graduation graduation rate calculations.
increasing the number of students who rates varies considerably. Many States There is now a broad consensus about
graduate on time with a regular high use some form of a ‘‘completer rate’’ how to define the graduation rate. In
school diploma. In addition, a uniform (multiplication of dropout rates in each August 2006, NCES released a report
and accurate method of calculating high academic year) as their graduation rate. synthesizing the recommendations of a
school graduation rates will improve This rate has been shown to panel of experts on graduation rate
our understanding of the scope and overestimate significantly high school calculations.8 The panel recommended
characteristics of those students graduation rates. The National Center that the standard graduation rate
dropping out of school or taking longer for Education Statistics (NCES) measure on-time completion of a regular
to graduate. calculated the AFGR for all States and diploma within four years and not
Numerous reports and statistics from compared the State-reported graduation include GED recipients or students
the U.S. Department of Labor (DOL) rates to the AFGR. This analysis, without documentation of transferring
indicate the growing importance of a published in the National Assessment of to another educational program that
high school diploma. In its publication, Title I Interim Report, shows that in terminates in the award of a regular high
America’s Dynamic Workforce, DOL some cases there is nearly a 30-point school diploma (e.g., documented
reported that 90 percent of the fastest- difference between a State’s reported through receipt of a transcript).
growing jobs require some form of graduation rate and its AFGR.7 Additionally, the NGA Task Force on
postsecondary education.3 There also The requirements States have High School Graduation Rate Data had
are increasing gaps in the established for determining whether a as its lead recommendation that all
unemployment rate and earnings high school makes AYP with respect to States immediately adopt and begin
between college graduates and high its graduation rate also vary. One State, taking steps to implement a standard
school dropouts. In 2006, the for example, has set its goal at 50 four-year, adjusted cohort graduation
unemployment rate for high school percent; another has set its goal at 95 rate, consistent with that proposed by
dropouts age 25 and older was over percent. In addition, more than one-half the NCES panel (the ‘‘NGA rate’’),
three times the rate for college graduates of States accept any improvement or which 50 governors agreed to adopt in
(6.8 percent compared to 2.0 percent, some established minimal improvement 2005.9 The proposed regulations offer a
respectively) and over 1.5 times the rate (e.g., 0.1 percent from the previous year) uniform and accurate method of
of individuals who had only a high in their high school graduation rate to calculating graduation rates that reflects
school diploma (6.8 percent compared count as making AYP. In several States, this broad consensus in the field.
to 4.3 percent, respectively). Moreover, a school can graduate less than half of To calculate the NGA rate, States need
what DOL refers to as the ‘‘education its students, year after year, and still a system of documenting transfers as
premium’’ is increasing—in 2006, make AYP by graduating one more well as four years of data, or the
college graduates with a bachelor’s or student with a regular high school equivalent of one full cohort. For States
higher degree had median weekly diploma than it did in the previous year. that do not yet have the ability to
earnings nearly 2.5 times greater than The proposed regulations would accurately track student transfers, NCES
the typical high school dropout. revise current regulations to require the recommended using the AFGR as an
Furthermore, college graduates have use of a uniform and accurate method interim measure. The AFGR estimates
experienced growth in real median of calculating high school graduation the effect of transfers into and out of a
weekly earnings since 1979, while high rates and would require schools and cohort of students and can be calculated
school dropouts have seen their real districts to either meet a State- with data currently available to States.
median weekly earnings decline by established goal that has been approved It has been shown to be a reliable,
about 20 percent.4 by the Secretary or demonstrate accurate estimate of the high school
These statistics demonstrate the continuous and substantial graduation rate.
critical importance of having a high improvement from the prior year toward The proposed regulations would
school diploma. Unfortunately, only meeting or exceeding that goal. These provide time for States to transition to
about half of African American and changes are intended to increase the using the new definition of graduation
Hispanic students graduate from high transparency and accuracy of graduation rate. This transition period would allow
school on time with a regular high rates and strengthen accountability for all States sufficient time to develop a
school diploma.5 Additionally, 15 the achievement of high school system for documenting transfers for
percent of high schools in the country students. Following is the rationale for one full cohort and subsequently to
are producing over half of our each of these changes. calculate the NGA rate. By 2012–2013,
Definition of graduation rate. A however, all States would be required to
3 U.S. Department of Labor. (2007). America’s uniform and accurate method of
Dynamic Workforce. Washington, DC: Author. 8 Seastrom, M., Chapman, C., Stillwell, R.,
Available at: http://www.dol.gov/asp/media/ 6 Id. McGrath, D., Peltola, P., Dinkes, R., & Xu, Z. (2006).
reports/workforce2007/index.htm. 7 Stullich, S., Eisner, E., McCrary, J., & Roney, C. User’s guide to Computing High School Graduation
4 Id. Rates. Washington, DC: U.S. Department of
(2006). National Assessment of Title I Interim
5 Belfanz, R., Legters, N., T.C. & Weber, L.M. Report to Congress: Volume I: Implementation of Education, National Center for Education Statistics.
(2007). Are NCLB’s Measures, Incentives, and Title I. Washington, DC: U.S. Department of 9 National Governors Association. (2006).
Improvement Strategies the Right One’s for the Education, Institute of Education Sciences. Graduation Counts: A Report of the National
Nation’s Low-Performing High Schools? American Available at: http://www.ed.gov/rschstat/eval/ Governors Association Task Force on High School
Educational Research Journal, 44(3), 559–593. disady/titlelinterimreport/voll.pdf. Graduation Rate Data. Washington, DC: Author.
use the more rigorous definition of data provided by NCES show significant student growth—it is still a cohort
graduation rate in proposed gaps in subgroup AFGR graduation comparison. Currently, nine States are
§ 200.19(a)(1). rates. Data from the 2004–2005 school participating in a ‘‘growth model’’ pilot
Graduation rate goals and continuous year show the average AFGR for white and are permitted to report their
and substantial improvement measures. students is 80.4 percent, whereas the accountability results using measures of
While some States only allow for average AFGR for Hispanic, black, and individual student growth that have
schools to make AYP if a State- Native American/Alaska Native been approved by the Department.
established goal is met, most States students is 64.2 percent, 60.3 percent, North Carolina and Tennessee first used
allow any improvement from the and 67.2 percent, respectively.10 With measures of individual student growth
previous year or some established these figures, it is clear that for the 2005–2006 school year; Alaska,
minimal improvement (ranging from 0.1 disaggregated graduation rate data Arizona, Arkansas, Delaware, Florida,
percent to 2.0 percent) for a school to should be used for purposes of and Iowa reported growth scores for the
demonstrate it has met AYP; one State determining whether a high school or first time for the 2006–2007 school
simply requires schools to maintain the LEA makes AYP. Similar to the year.11
prior year’s rate. Furthermore, many importance of disaggregating assessment Current Regulations: Section 200.20
States have established low graduation results to ensure that high performance implements the statutory requirements
rate goals (e.g., 50 percent) that are by a particular group of students does for determining AYP.
considered the threshold for AYP not mask low performance by another Proposed Regulations: Proposed
determinations—a school or LEA must group of students, schools need to be § 200.20(h) would establish the criteria
meet that threshold in order to be held accountable for the differences in that a State must meet in order for the
considered to have made AYP and no high school graduation rates among Secretary to permit a State, under the
improvement above that threshold is various groups of students. waiver authority of section 9401 of the
required. These methods of determining For these reasons, the proposed ESEA, to establish and implement
whether a school or LEA meets the regulations would require, by the 2012– policies for incorporating individual
graduation rate component of AYP 2013 school year, all States to include student academic progress into the
represent exceptionally low disaggregated graduation rates in State’s definition of AYP. A State that
expectations and demonstrate the need State-, district-, and school-level AYP desires to incorporate individual
for States to establish graduation rate decisions. The Department, however, student academic growth into its
goals that are more rigorous. recognizes that, while disaggregated definition of AYP would be required
Accordingly, § 200.19(d) would require AFGR results are valid at the State and to—
a State to establish a graduation rate district levels, there is less confidence (a) Set annual growth targets that—
goal that it expects all high schools to in the validity of disaggregated AFGR (1) Lead to all students, by school year
eventually achieve and to establish results at the school level. Therefore, 2013–2014, meeting or exceeding the
requirements for demonstrating beginning with the effective date of this State’s proficient level of academic
continuous and substantial regulation, States would be required to achievement on the State assessments
improvement toward meeting or use disaggregated results for reporting under § 200.2;
exceeding that goal, in order to make and determining AYP at the State and (2) Are based on meeting the State’s
AYP. Given the ever-increasing district levels, but would only be proficient level of academic
importance of a high school diploma, required to use school-level achievement on the State’s assessments
allowing schools and LEAs with disaggregated results for reporting under § 200.2 and are not based on
unacceptably low rates of graduation to purposes and determining AYP under individual student background
make AYP by simply maintaining the the ‘‘safe harbor’’ provision. Beginning characteristics; and
same low rate or minimally increasing in 2012–2013, when all States would (3) Measure student achievement
the number of graduates from the have to use the NGA graduation rate, separately in mathematics and reading/
previous year does not provide for disaggregated results would also be language arts;
appropriate and meaningful required in school-level AYP (b) Ensure that all students who are
accountability. determinations. tested using the State’s assessments
Disaggregation of graduation rates.
Section 200.20—Making Adequate under § 200.2 are included in the State’s
When the current regulations were
Yearly Progress assessment and accountability systems;
written in 2002, the Department
(c) Hold all schools and LEAs
believed that permitting States to use Statute: Section 1111(b)(2) of the accountable for the performance of all
aggregate graduation rate data for the ESEA sets out the requirements for students and the student subgroups
purpose of determining AYP while calculating AYP, which is a measure of
requiring disaggregation for reporting described in § 200.13(b)(7)(ii);
the percentage of students who are (d) Be based on State assessments
would be sufficient to ensure school proficient in a school, LEA, and State.
accountability for the achievement of all that—
The AYP calculation method commonly (1) Produce comparable results from
groups of students and would avoid referred to as a ‘‘status model’’ compares
overburdening State accountability grade to grade and from year to year in
the achievement of one cohort of mathematics and reading/language arts;
systems. Six years later, we now know students against the test scores of the
that simply reporting disaggregated (2) Have been in use by the State for
students in the previous year’s class. more than one year; and
graduation rate data is not sufficient to Although Title I allows AYP to be
ensure that graduation rates improve for (3) Have received full approval from
determined using student progress with the Secretary before the State
all students. As previously highlighted,
the ‘‘safe harbor’’ provision, the determines AYP based on student

too many schools are graduating too few proficiency gains measured in that
students and not being held accountable academic growth;
calculation do not look at individual
for improving their performance in this 11 Ohio has received conditional approval, but
important area. Moreover, it is evident 10 National
Center for Education Statistics. (2008). has not yet implemented its proposal due to
that there are significant disparities in Averaged Freshman Graduation Rates for Public delayed State legislative changes necessary for
high school outcomes. For example, School Students, 2004–05. Unpublished data. implementation.
(e) Track student progress through a achievement and teacher performance psychometrics would help the
State-developed data system; by class assignment. While not a Department address these complex and
(f) Include, as separate factors in condition of incorporating individual technical issues. Just as States have
determining whether schools are student academic growth into a State’s established State technical advisory
making AYP for a particular year— definition of AYP, inclusion of a teacher committees to advise them on the
(1) The rate of student participation in identifier will create a much richer set development and implementation of
assessments; and of data to guide school improvement their State standards, assessments, and
(2) Other academic indicators as efforts. accountability systems, the Department
described in § 200.19; and believes that regular access to a group of
(g) Describe how the proposed annual Section 200.22—National Technical
Advisory Council experts would benefit the Department,
growth targets fit into a State’s States, and, ultimately, students in
accountability system in a manner that Statute: Section 1111(e) of the ESEA ensuring that State standards and
ensures that the system is coherent and requires the Secretary to establish a peer assessments are of the highest technical
that incorporating individual student review process to assist in the review of quality and that State accountability
academic growth into a State’s State Plans. systems hold schools and districts
definition of AYP does not dilute Current Regulations: There are no accountable for the achievement of all
accountability. current regulations related to this students.
With the additions proposed in these statutory requirement.
regulations, a State could permit its Proposed Regulations: The proposed Sections 200.32 and 200.50(d)(1)—
LEAs and schools to make AYP by regulations in § 200.22 would require Identification of Schools and LEAs for
meeting (1) the State’s proficiency the establishment of a National Improvement
targets, (2) growth targets, or (3) the Technical Advisory Council (National
‘‘safe harbor’’ provision. Statute and Current Regulations:
TAC) to advise the Secretary on key
A State’s proposal to incorporate Section 1116(b)(1)(A) of the ESEA and
technical issues related to State
student academic growth in the State’s § 200.32(a)(1) require an LEA to identify
standards, assessments, and
definition of AYP will be peer reviewed accountability systems that are part of a school for improvement if it does not
under section 1111(e)(2) of the ESEA. State plans. The National TAC would make AYP, ‘‘as defined * * * under
Reasons: There is general consensus not replace the peer review panels the section 1111(b)(2),’’ for two consecutive
among teachers, administrators, Department uses to evaluate State years. Section 1116(c)(3) of the ESEA
researchers, and advocates that States standards, assessments, and and § 200.50(d)(1) contain a similar
should be permitted to include accountability systems. Rather, the requirement for identifying LEAs for
measures of individual student National TAC would consider complex improvement.
academic progress (that is, to use what issues that affect all States, as well as Under section 1111(b)(2)(I) of the
is often described as a ‘‘growth model’’) issues that would benefit from ESEA and § 200.20, a school or LEA
when determining whether a school or discussions with experts in the field. makes AYP if: (1) All students and each
district is making AYP. When NCLB For example, the National TAC could subgroup of students under
was signed into law in 2002, few States help create guidelines for how States § 200.13(b)(7)(ii) meet or exceed the
had the data capacity to calculate should determine an appropriate State’s separate annual measurable
individual student academic progress. minimum subgroup size, taking into objectives (AMOs) for reading/language
With all States now testing annually in consideration other elements of States’ arts and math, (2) the school or LEA
grades 3 through 8 and once in high AYP definitions, as we have proposed meets or exceeds the State’s other
school coupled with improved data in § 200.7. academic indicators, and (3) not less
systems in many States, States have a Under the proposed regulations, the than 95 percent of all students and those
greater capacity to measure individual Secretary would solicit nominations in each subgroup identified in
student academic progress. The from the public for experts in the fields § 200.13(b)(7)(ii) take the State’s
Department believes that allowing of assessment design and assessments. A school or LEA may also
States to include accurate measures of implementation, and the field of make AYP through the ‘‘safe harbor’’
individual student academic progress in accountability to serve on the National provisions described previously in this
AYP calculations will still hold schools TAC. The proposed regulations provide notice.
accountable for the achievement of all that, from these nominations, the Under current policy, the Department
students to State academic achievement Secretary would select 10 to 15 National permits the identification of schools and
standards, while providing schools and TAC members. The National TAC could LEAs for improvement if the school or
teachers with useful information on meet as a whole or in subcommittees. LEA did not make AYP because it did
how their students are progressing Reasons: The Department currently not meet the AMO in the same subject
towards grade-level proficiency, which uses experts in the fields of assessment or academic indicator for two
can ultimately lead to better instruction. and accountability to review State consecutive years. So, for example, if a
Under these proposed regulations and standards, assessments, and school did not make AYP because it did
section 9401 of the ESEA, therefore, accountability systems. During the not meet the AMO for math for two
schools and LEAs in States that course of reviewing State Plans, these consecutive years, the school would be
incorporate individual student experts, as well as States, have raised a identified for improvement. On the
academic growth into their definition of number of complex issues (e.g., the other hand, if a school, in the first year,
AYP would be held accountable for appropriate use of confidence intervals did not make AYP because it did not
improving individual students’ and indexes, and the alignment of meet the AMO in math but met the
achievement from one school year to the alternate assessments with alternate AMO in reading/language arts, and
next. We encourage States that decide to academic achievement standards). then, in the second year, did not make
incorporate individual student growth Advice from a National TAC consisting AYP because it did not meet the AMO
into their accountability systems to of experts with knowledge in the fields in reading/language arts but met the
include in their data systems a teacher of educational standards, assessments, AMO in math, that school would not be
identifier to help track student accountability systems, statistics, and identified for improvement.
The Department, however, does not likewise, must be calculated separately restructuring with the option to transfer
permit an LEA or a State to limit the because a student could participate in to another school not later than the first
identification of schools and LEAs for one, both, or neither of the State’s day of the school year following such
improvement to only those schools and mathematics and reading/language arts identification. Section 1116(e)(2)(A)
LEAs that did not make AYP because assessments. Accordingly, it follows requires LEAs with schools in the
the same subgroup did not meet the that a State may take into consideration second year of improvement, in
AMO in the same subject or meet the in identifying a school or LEA for corrective action, or in restructuring to
same other academic indicator for two improvement the fact that the school or provide, at a minimum, annual notice to
consecutive years. So, for example, if a LEA did not meet its AMO in the same parents of the availability of SES, the
school, in the first year, did not make subject (including the participation rate identity of approved SES providers of
AYP because the students with for that subject) or meet the same other those services that are within the LEA
disabilities subgroup did not meet the academic indicator for two consecutive or whose services are reasonably
AMO in math, and then, in the second years. available in neighboring LEAs, and a
year, the school did not make AYP There is no similar basis for brief description of the services,
because the LEP students subgroup did identifying for improvement a school or qualifications, and demonstrated
not meet the AMO in math, the LEA LEA only when the same subgroup did effectiveness of each of those providers.
must identify that school for not meet the AMO in the same subject Current Regulations: Section
improvement. In this example, or the same other academic indicator for 200.37(b)(4) and (b)(5) implement the
identification for improvement is based two consecutive years. Although section statutory requirements for LEAs to
on not meeting the AMO in the same 1111(b)(2) of the ESEA requires a State provide notice to parents of public
subject, math, not on whether the same to establish separate AMOs for each school choice and SES options,
subgroup did not meet the AMO. subject, it requires a State to apply those respectively.
Proposed Regulations: We are AMOs to each subgroup in determining Proposed Regulations: Proposed
proposing to codify the Department’s whether a school or LEA makes AYP. In § 200.37(b)(4)(iv) would require that
current policy in §§ 200.32 and addition, section 1111(b)(2)(I)(i) of the LEAs provide to parents an explanation
200.50(d). Proposed § 200.32 would ESEA provides that, for a school or LEA of the available school choices
provide that, in identifying a school for to make AYP, ‘‘all students’’ and each sufficiently in advance of, but no later
improvement, an LEA may base subgroup must meet or exceed the than 14 calendar days before, the start
identification on whether the school did AMOs. Based on these provisions, the of the school year, so that parents have
not make AYP because it did not meet ESEA does not authorize limiting the adequate time to exercise their choice
the AMO in the same subject or meet identification of a school or LEA for option before the school year begins.
the same other academic indicator for improvement to instances when the Proposed § 200.37(b)(5)(ii)(C) would
two consecutive years. The LEA may school or LEA did not make AYP for require that the annual notice of the
not, however, limit such identification two consecutive years only because the availability of SES explain the benefits
to those schools that did not make AYP same subgroup did not meet the AMO of receiving SES, in addition to the
only because they did not meet the for the same subject or the same other identity of approved providers of those
AMO in the same subject or meet the academic indicator. Identifying a school services available within the LEA and a
same other academic indicator for the or LEA in this manner would be brief description of the services,
same subgroup under § 200.13(b)(7)(ii) inconsistent with the ESEA’s qualifications and demonstrated
for two consecutive years. Comparable accountability provisions, which require effectiveness of the providers, as
changes with respect to the that each subgroup meet the State’s provided in current regulations.
identification of LEAs for improvement AMOs in each subject each year. Proposed § 200.37(b)(5)(iii) would
would be made in proposed require this notice to be clear and
Section 200.37—Notice of Identification
§ 200.50(d)(1). concise and clearly distinguishable from
Reasons: We are proposing to codify for Improvement, Corrective Action, or
Restructuring the other information sent to parents
our current policy in order to establish under § 200.37.
clear parameters for LEAs and States to Statute: Section 1116(b)(1)(A) of the Reasons: The importance of notifying
use when identifying schools and LEAs ESEA requires LEAs to identify for parents of their public school choice
for improvement. We believe the current improvement any Title I school that options in advance of the start of the
policy and proposed regulatory changes fails to make AYP for two consecutive school year is documented by findings
are consistent with section 1111(b)(2)’s years. The identification must occur from the National Assessment of Title I
emphasis on proficiency in separate before the beginning of the school year (NATI) report (2007). In a survey of
subjects and requiring separate following the school’s failure to make LEAs described in this report, those that
participation rates for math and reading/ AYP (section 1116(b)(1)(B)). Section notified parents about their public
language arts assessments for purposes 1116(b)(6) of the ESEA requires an LEA school choice options before the first
of determining AYP, as well as the to promptly notify parents of students day of school had higher participation
absence of any similar authority for enrolled in a school identified for rates in public school choice than LEAs
emphasizing subgroups. improvement, corrective action, or that notified parents on or after the first
Section 1111(b)(2)(E) of the ESEA restructuring and to provide them with day of school. Yet, only 29 percent of
clearly acknowledges that student information regarding what it means to the LEAs that were required to offer
achievement in reading and math in a be identified for improvement, public school choice notified parents
State may start at very different points corrective action, or restructuring, before the beginning of the school year.
and, when they do, different trajectories including an explanation of the parents’
Twenty-one percent notified parents at

need to be established for each subject option to transfer their child to another the start of the school year, and 49
toward the goal of 100 percent public school or the option to obtain percent notified parents after the start of
proficiency by 2013–2014. Similarly, SES for the student. Section the school year.12
section 1111(b)(2)(G) of the ESEA 1116(b)(1)(E) requires LEAs to provide
requires a State to set different AMOs in students enrolled in a school identified 12 Stullich, S., Eisner, E., & McCrary, J. (2007).
math and reading. Participation rates, for improvement, corrective action, or National Assessment of Title I: Final Report,
We know that transferring one’s child SES options and the benefits of those providers approved to serve students in
to another school is an important services. the LEA and the available schools that
decision for a parent to make and are offered to students eligible to
Section 200.39—Responsibilities
therefore, it is critical that LEAs provide participate in public school choice
Resulting From Identification for School
parents as much advance notice as would help parents make informed
Improvement
possible so that they have time to make choices for their children. An LEA’s
informed decisions. We also know from Statute: Section 1116(b) of the ESEA Web site is one way for LEAs to make
the NATI report that parents are more states that an LEA must identify for information on public school choice and
likely to take advantage of their choice school improvement any elementary or SES widely available because these sites
options if they are notified in advance secondary school that fails, for two can be easily updated with the latest
of the school year. However, early consecutive years, to make AYP. information and are a medium that can
parent notification may be constrained Specifically, LEAs with Title I schools be accessed anytime and anywhere by
by several factors, including the time it identified for improvement are individuals and entities. For parents
takes for States to receive students’ responsible for providing public school without access to the Internet, LEAs and
scores on the State’s annual assessment choice to eligible students (section community organizations would be
and the time needed to determine 1116(b)(1)(E)), consulting with encouraged to make this information
whether a school has made AYP based identified schools as they develop a available to parents through other
on the students’ test scores and the school improvement plan (section avenues.
other components of the State’s AYP 1116(b)(3)), and ensuring the provision
of technical assistance as the school Section 200.43—Restructuring
definition (e.g., definition of full
academic year, indexes, ‘‘safe harbor’’). develops and implements the school Statute: Under section 1116(a)(7) of
Further, the Department understands improvement plan (section 1116(b)(4)). the ESEA, if any school served by an
that it is in the best interest of students For Title I schools in their second year LEA does not make AYP by the end of
to have as much time in the school year of improvement, the LEA must continue the second full school year after having
as possible to learn the content before with these actions and, in addition, been identified for improvement, the
taking the State’s annual assessment. make SES available to eligible students. LEA must identify the school for
The Department recognizes that the Current Regulations: Section 200.39 corrective action and take one of several
importance of giving parents the time implements the statutory requirements specific corrective actions. These may
they need to make decisions regarding regarding LEAs’ responsibilities for Title include replacing school staff and
their choice option must be balanced by I schools identified for improvement. instituting a new curriculum. If, after
these practical realities of making AYP Proposed Regulations: Proposed one full school year of corrective action,
determinations. Notifying parents as far § 200.39(c) would require LEAs to a school continues not to make AYP, the
in advance as possible, but no later than provide the public with information LEA must identify the school for
14 days before the start of the school regarding the LEA’s implementation of restructuring and implement a
year, strikes a reasonable balance among the public school choice and SES restructuring plan under section
these various timing and practical requirements, as soon as this 1116(b)(8)(A) of the ESEA. In addition
considerations. We also believe that by information becomes available. LEAs to implementing a restructuring plan,
allowing more time for parents to would be required to prominently the LEA must continue to provide SES
consider their choice options, there will display the following information on the and public school choice to eligible
be greater interest and participation in LEA’s Web site: students.
public school choice. • Beginning with data from the 2007– Section 1116(b)(8)(B) of the ESEA sets
The NATI report also found that, in 2008 school year and for each forth the requirements for implementing
2004–2005, 94 percent of LEAs reported subsequent school year, the number of restructuring plans and requires that,
sending parents written notification students who were eligible for and the not later than the beginning of the
materials regarding SES options; number of students who participated in school year following the year in which
however in a survey of eligible parents public school choice. an LEA implements restructuring, the
in eight urban school districts, only 53 • Beginning with data from the 2007– LEA must implement one of the
percent of parents with a child eligible 2008 school year and for each following alternative governance
for SES said they had been notified.13 subsequent school year, the number of arrangements for the school consistent
Additionally, the NATI report found students who were eligible for and the with State law:
that the quality of LEAs’ parent number of students who participated in (i) Reopen the school as a public
notification letters varied considerably. SES. charter school;
Specifically, the NATI report looked at • For the current school year, a list of (ii) Replace all or most of the school
20 parent letters about SES and found SES providers approved by the State to staff (which may include the principal)
that some were easy to read and serve the LEA and the locations where who are relevant to the failure to make
described SES options in a positive services are provided. AYP;
manner, while others were confusing • For the current school year, a list of (iii) Enter into a contract with an
and incomplete, and discouraged the available schools that are offered to entity, such as a private management
use of SES.14 The proposed regulations students eligible to participate in public company with a demonstrated record of
regarding the SES notice would help school choice. effectiveness, to operate the public
ensure that LEAs promptly Reasons: We believe that making school;
communicate to parents information on information regarding an LEA’s (iv) Turn the operation of the school
SES, and that parents are aware of their implementation of the public school over to the SEA, if permitted under
choice and SES requirements available State law and agreed to by the State; or
Volume I: Implementation. Washington, DC: and transparent to the public would (v) Any other major restructuring of
National Center for Education Evaluation and hold LEAs accountable for the school’s governance arrangement
Regional Assistance, Institute of Education
Sciences, U.S. Department of Education. implementing these requirements and that makes fundamental reforms, such
13 Id. lead to greater student participation. In as significant changes in the school’s
14 Id. addition, information on the SES staffing and governance, to improve
student academic achievement in the The Department needs to address the school’s staff, these changes may
school, and that has substantial promise these issues because a large number of include, but may not be limited to,
of enabling the school to make AYP. schools could potentially enter replacing the principal. While we
Current Regulations: Section 200.43 of restructuring in the next few years. For believe that it is important to place the
the current regulations, for the most the 2006–2007 school year, 2,330 right leader in a chronically under-
part, restates the statutory language. The schools were identified for corrective performing school, as permitted in
regulations also clarify that a school action, 937 schools were identified for current § 200.43, simply replacing the
must continue to implement its restructuring after not meeting AYP for principal without any other changes is
restructuring plan until it has made five years, and 1,242 schools began inconsistent with the statute and likely
AYP for two consecutive years. implementing their restructuring plans insufficient to move a school out of
Proposed Regulations: The proposed after not meeting AYP for six years. It restructuring.
regulations would make several is important to make these proposed Just as we would not expect that
clarifying changes. First, we propose to regulatory changes at this time in order continuing the same actions that were
move the parenthetical in current to strengthen the restructuring instituted when a school was in
§ 200.43(a)(1) that provides examples of requirements and thereby help schools improvement or corrective action would
fundamental reforms to proposed to exit restructuring as soon as possible. move the school out of restructuring, we
§ 200.43(b)(3)(v) to better track the Although rigorous research is limited also would not expect a school to be
statutory language in section on what restructuring interventions are able to make sufficient gains to exit
1116(b)(8)(B)(v) of the ESEA. Second, most effective and under what restructuring if the interventions do not
proposed § 200.43(a)(4) would clarify conditions, correlational and descriptive address the specific reasons that the
that interventions implemented as part studies indicate that more than one school continues not to make AYP. For
of a school’s restructuring plan must be reform should be implemented in a example, if a school is in restructuring
significantly more rigorous and school, rather than relying on one because either the ‘‘all students’’ group
comprehensive than those interventions ‘‘silver bullet’’ to address the significant or subgroups that comprise a large
implemented under the school’s academic needs of a school that has not percentage of its students have not made
corrective action plan as required under made AYP for six or more years. For AYP for six years, a restructuring plan
§ 200.42. Third, proposed § 200.43(a)(5) example, a study of restructuring in that addresses only a subset of the
would require that an LEA implement Michigan conducted by the Center on students would not be likely to move a
interventions that address the reasons Education Policy (CEP) found, in school out of restructuring; rather, the
for the school’s being in restructuring in general, that multiple reform efforts restructuring plan would need to be
order to enable the school to exit tailored to the needs of the schools were broader in scope and address the needs
restructuring as soon as possible. more likely to result in the schools’ of the majority of students.
Fourth, the proposed regulations would making AYP and exiting restructuring.17
revise § 200.43(b)(3)(ii) to clarify that, in Section 200.44—Public School Choice
To strengthen the requirements for
replacing all or most of the school staff, Statute: Section 1116(b)(1)(E) requires
schools in restructuring, we are
an LEA may also replace the principal; LEAs to provide students enrolled in a
proposing to clarify, consistent with the
however, replacing the principal alone school identified for improvement,
statute, that the actions taken by a
would not be sufficient to constitute corrective action, or restructuring with
school identified for restructuring must
restructuring. Finally, in addition to the the option to transfer to another school
(1) be significantly more rigorous and
proposed change to track more closely not later than the first day of the school
comprehensive than those the school
the language in section 1116(b)(8)(B)(v) year following such identification.
implemented as corrective actions and
of the ESEA, proposed § 200.45(b)(3)(v) Current Regulations: Section 200.44
(2) address the reasons for the school’s
would clarify again that, in making provides that if an LEA identifies a
being identified for restructuring.
significant changes in the school’s staff, school for improvement, corrective
Schools that have been identified for
an LEA may not replace only the action, or restructuring, the LEA must
restructuring are in that status because
principal. provide all students attending the
they have continually not made AYP,
Reasons: Based on available data, the school with the option to transfer to
notwithstanding the reforms undertaken
Department is concerned that the another public school served by the
when the school was in improvement or
restructuring requirements in § 200.43 LEA. An LEA must offer this option to
corrective action. Simply continuing the
are not being implemented effectively, parents not later than the first day of the
same actions that were unsuccessful in
and in some cases not at all. Preliminary school year following the year in which
moving the school out of improvement
analyses of Department data from 36 the LEA administered the assessment
or corrective action is unlikely to be
States indicate that only approximately that resulted in its identification of the
sufficient to move the school out of
18 percent of schools that were school for improvement, corrective
restructuring. Restructuring requires
identified for restructuring in either the action, or restructuring.
actions that are more comprehensive Proposed Regulations: Proposed
2004–2005 or 2005–2006 school year
and rigorous than those the school took § 200.44(a)(2)(ii) would reference
have exited restructuring status.15 In
when the school was in improvement or proposed § 200.37(b)(4) to make clear
addition, a recent study from the
corrective action status. that an LEA must notify parents about
Government Accountability Office
Consistent with the need for more the option to transfer their child to
(GAO) found that 40 percent of schools
comprehensive and rigorous actions another school and the available public
in restructuring did not implement any
when a school is in restructuring, we school choices sufficiently in advance
of the five restructuring options.16
also are proposing to clarify that, when of, but no later than 14 calendar days
15 U.S. Department of Education. (2008). EDFacts.

a State, as part of its restructuring plan, before, the start of the school year so
Unpublished raw data. chooses to make significant changes in that parents have adequate time to
16 U.S. Government Accountability Office. (2007).
exercise their choice option before the
No Child Left Behind Act: Education Should Clarify 17 Scott, C. (2007). What Now? Lessons from
Guidance and Address Potential Compliance Issues Michigan About Restructuring Schools and Next school year begins.
for Schools in Corrective Action and Restructuring Steps Under NCLB. Washington, DC: Center for Reasons: Reiterating in the public
Status (GAO–07–1035). Washington, DC: Author. Education Policy. school choice section of the regulations
that notice to parents of the availability approve SES providers with a parent recommendations, results from
of public school choice must occur in a demonstrated record of effectiveness, parent surveys, or results from other
timely manner, consistent with and to develop and apply objective evaluations demonstrating the success
proposed § 200.37(b)(4)(iv), would help criteria to monitor and withdraw of the provider’s instructional program
ensure that LEAs understand that they approval of providers. Section 200.47 in improving student achievement.
must notify parents about their public also requires that, to be approved by an Reasons: We believe that providing
school choice options sufficiently in SEA, the provider must agree to ensure information to the public about how
advance of the start of the school year that the instruction the provider gives SEAs monitor the implementation of
so that parents have sufficient time to and the content the provider uses are SES requirements by their LEAs, and
consider their options and make an consistent with the instruction provided enhancing the criteria that SEAs must
informed decision. and the content used by the LEA and use to approve and monitor SES
the SEA, and are aligned with State providers, would strengthen the
Section 200.47—SEA Responsibilities implementation of SES by SEAs and
student academic achievement
for Supplemental Educational Services LEAs and ultimately contribute to
standards.
Statute: Section 1116(e)(1) of the Proposed Regulations: We propose increased student achievement.
ESEA requires LEAs to arrange for the several changes to the regulations Following is the rationale for each of
provision of SES to eligible students regarding SEA responsibilities for SES. these changes.
from a provider with a demonstrated Monitoring LEA implementation. Monitoring LEA implementation.
record of effectiveness. A provider is Proposed § 200.47(a)(4)(iii) would While SEAs are required under the
defined in section 1116(e)(12)(B) as a require a State to develop, implement, current regulations to monitor LEAs and
non-profit entity, for-profit entity, or and publicly report on standards and their implementation of the SES
LEA that (1) has a demonstrated record techniques for monitoring LEAs’ requirements, the proposed regulations
of effectiveness in increasing student implementation of the SES requirements would require SEAs to publicly report
academic achievement; (2) is capable of in the ESEA. on the standards and techniques for
providing SES that are consistent with Approving SES providers. Proposed how they monitor their LEAs’
the instructional program of the LEA § 200.47(b)(2)(ii) would clarify that, to implementation of the SES
and the academic standards described be approved as an SES provider, an requirements. We believe that requiring
in section 1111 of the ESEA; and (3) is entity must provide the State with States to develop, implement, and
financially sound. Section 1116(e)(3)(A) evidence that the instruction it would publicly report on the criteria they use
of the ESEA requires an LEA to develop, provide and the content it would use are to monitor LEAs’ implementation of
with the parents of a child participating aligned with the State’s academic SES will help ensure that SEAs set
in SES and the provider, an agreement content and student academic rigorous and clear expectations for their
that includes a statement of specific achievement standards and are research- LEAs.
achievement goals for the student, a based. Proposed § 200.47(b)(3) would Approving SES providers. We have
description of how the student’s require that, as a condition of approval, learned in discussions with States that
progress will be measured, and a a State must consider, at a minimum, (1) there is uncertainty regarding the
timetable for improving achievement. information from the provider on evidence that States may require
Section 1116(e)(3)(C) also requires that whether the provider has been removed providers to submit as part of their
this agreement be terminated if the from any State’s approved provider list; application to be an approved SES
provider is unable to meet the goals and (2) parent recommendations or results provider. We believe that specifying the
timetables specified in the agreement. from parent surveys, if any, regarding minimum evidence that SEAs must
Section 1116(e)(4)(B) of the ESEA the success of the provider’s consider in approving providers will
requires States to develop and apply, in instructional program in increasing help ensure that students receive high
the selection of providers, objective student achievement; and (3) evaluation quality SES services and reinforce with
criteria that are based on a demonstrated results, if any, demonstrating that the States that they have the authority and
record of effectiveness in increasing the instructional program has improved the responsibility to approve only
academic proficiency of students in student achievement. entities that will contribute to increased
subjects relevant to meeting the State’s Monitoring approved providers. student academic achievement.
academic content and student Proposed § 200.47(c) would specify the Monitoring approved providers. To
achievement standards. Section evidence that a State must consider ensure that State-approved providers
1116(e)(4)(D) requires States to develop, when monitoring the quality and deliver high quality SES services, it is
implement, and publicly report on effectiveness of the services offered by important that States monitor the
standards and techniques for monitoring an approved provider in order to inform provision of SES. We believe that the
the quality and effectiveness of the the renewal or withdrawal of approval monitoring criteria in proposed
services offered by approved providers of a provider. Specifically, § 200.47(c) § 200.47(c)(1) would reinforce with
and for withdrawing approval from would require a State to examine, at a States that they have the authority and
providers that fail, for two consecutive minimum, evidence that the provider’s the responsibility to monitor providers
years, to contribute to increasing the instructional program (1) is consistent in order to make informed decisions
academic proficiency of students with the instruction provided and the about whether SES providers should
served. Section 1116(e)(5)(B) requires content used by the LEA and SEA; (2) remain on a State’s approved provider
providers to ensure that their addresses students’ individual needs as list. We believe that specifying the
instructional program is consistent with described in students’ SES plans; (3) has minimum evidence that SEAs must
the instruction provided and content contributed to increasing students’ consider in approving providers will
used by the LEA and State, and that it academic proficiency (as required by help ensure that students receive high
is aligned with State student academic section 1116(e)(4)(D)); and (4) is aligned quality SES services and reinforce with
achievement standards. with State academic content and States that they have the authority and
Current Regulations: Section 200.47 student academic achievement the responsibility to approve only
repeats the statutory requirements standards. In addition, States would entities that will contribute to increased
regarding the State’s responsibility to also be required to consider, if any, student academic achievement.
Section 200.48—Funding for Choice- agencies serving eligible students and Partnering with community-based
Related Transportation and their families. organizations. In a survey of LEAs’
Supplemental Educational Services • Allowing eligible students to sign strategies for communicating with
(SES) up for SES throughout the school year. parents about their SES options, only 16
(c) Ensuring that eligible SES percent of LEAs reported that they
Statute and Current Regulations: worked with a local community partner
Section 1116(b)(10) of the ESEA and providers are given access to school
facilities, using a fair, open, and to reach parents regarding their SES
§ 200.48(a)(2) require LEAs to spend an options, and only 10 percent did so to
amount equal to 20 percent of their Title objective process, on the same basis and
terms as are available to other groups communicate with parents about public
I, Part A allocations, unless a lesser school choice options.20 We learned
amount is needed, to comply with all that seek access to school facilities.
If an LEA does not meet these criteria, during visits to LEAs across the country
requests for SES and to provide as part of a 2007 outreach tour on SES
transportation, or pay for the the proposed regulations would require
the LEA to spend the amount remaining and public school choice that
transportation costs, for students information from a variety of sources is
exercising the public school choice from its 20 percent obligation in the
following school year for choice-related needed to reach parents and make them
option under the ESEA. An LEA may fully aware of their SES and public
use Title I funds to pay for the costs to transportation, SES, or parent outreach
(subject to the 0.2 percent cap in school choice options. LEAs that we met
implement SES and public school with reported that partnering with
choice, including outreach to parents; § 200.48(a)(2)(iii)(C)). The requirement
to spend these unused funds would be community organizations was an
however, under § 200.48(a)(2)(iii)(B), the effective way of making parents aware
LEA may not count these costs toward in addition to the requirement to spend
an amount equal to 20 percent of its of SES and public school choice options
meeting its 20 percent obligation. for their children.21
Proposed Regulations: Proposed Title I, Part A allocation in the following
Providing timely, accurate notice. As
§ 200.48(a)(2)(iii)(C) would allow an school year.
noted in our discussion of the proposed
LEA to count costs for providing Reasons: There is evidence indicating changes to § 200.37, the NATI report
outreach and assistance to parents that SES participation improves student provides evidence that notifying parents
regarding public school choice and SES achievement. A recent study by the of their public school choice options in
toward meeting its 20 percent RAND Corporation, supported by the a timely manner helps to increase study
obligation. The amount that could be Department, found that, in five out of participation in public school choice.
counted toward these costs would be the seven large urban districts in which The NATI report also found that in
capped at an amount equal to 0.2 there were sufficient numbers of 2004–2005 the quality and clarity of
percent of the LEA’s Title I, Part A, students to analyze the effects, students LEAs’ parent notification letters
subpart 2 allocation. An LEA would still participating in SES showed statistically regarding SES and public school choice
be able to spend more than that amount significant positive effects in both varied considerably with many omitting
on parental outreach activities; the reading and mathematics key information. For example, fewer
proposed regulations would only cap achievement.18 However, currently, than half of the 20 public school choice
what could be counted toward meeting only 14.5 percent of eligible students letters that were sampled identified the
the 20 percent obligation. take advantage of SES nationwide.19 schools that parents could choose for
Proposed § 200.48(d) would require In order to increase participation in their children, and fewer than half of
an LEA, before reallocating unused SES and public school choice, the the 21 SES letters sampled identified
funds from choice-related transportation Department believes that LEAs need to the eligible SES providers.22 We believe
and SES to other purposes, to devote sufficient time and resources to that requiring LEAs to provide parents
demonstrate to the SEA that it had met effectively notify parents of available with timely and accurate notice of their
specific criteria established in proposed public school choice and SES options. SES and public school choice options is
§ 200.48(d)(1). Specifically, the LEA Currently, LEAs are not permitted to essential to ensuring that parents have
would have to demonstrate success in count costs for these activities toward the information they need to make
the following: meeting their 20 percent obligation for informed decisions about their child’s
choice-related transportation and SES. education.
(a) Partnering with community-based
The proposed regulations would permit Sign-up forms and signing up
organizations or other groups to reach
LEAs to count a limited amount of throughout the school year. The
out to eligible students and their
funds for parent outreach and assistance Department believes that parents of
families about SES and public school
in order to help ensure that LEAs students eligible to receive SES should
choice opportunities.
provide parents with the information have opportunities to request SES for
(b) Ensuring that eligible students and they need to make the best, most
their parents have had a genuine informed decisions for their children. 20 Stullich, S., Eisner, E., & McCrary, J. (2007).
opportunity to sign up to transfer to The proposed regulations also would National Assessment of Title I: Final Report,
another public school or receive SES, require LEAs, before reallocating funds Volume I: Implementation. Washington, DC:
including by: National Center for Education Evaluation and
for other purposes, to demonstrate to the Regional Assistance, Institute of Education
• Providing timely, accurate notice as SEA success in meeting several Sciences, U.S. Department of Education.
required in §§ 200.36 and 200.37 of the requirements. Our rationale for each of 21 U.S. Department of Education, Office of
availability of public school choice and these requirements follows. Innovation and Improvement, Giving Parents
SES. Options: Strategies for Informing Parents and
Implementing Public School Choice and
• Ensuring that sign-up forms for SES
18 U.S. Department of Education. (2007). State Supplemental Educational Services Under No Child
are distributed directly to all eligible and Local Implementation of the No Child Left Left Behind, Washington, DC, 2007.
students and their parents and are made Behind Act, Volume I—Title I School Choice, 22 Stullich, S., Eisner, E., & McCrary, J. (2007).
widely available and accessible through Supplemental Educational Services, and Student National Assessment of Title I: Final Report,
Achievement, Washington, DC: Author. Volume I: Implementation. Washington, DC:
broad means of dissemination, such as 19 U.S. Department of Education. Consolidated National Center for Education Evaluation and
the Internet, other media, and State Performance Report, 2006–2007. Unpublished Regional Assistance, Institute of Education
communications through public raw data. Sciences, U.S. Department of Education.
their children throughout the school beginning with the first day of the 2002– Executive Order 12866
year. A short sign-up period at the 2003 school year, each LEA receiving Under Executive Order 12866, the
beginning of the school year may assistance under Title I, Part A is Secretary must determine whether this
exclude many students from responsible for applying these regulatory action is ‘‘significant’’ and
participation, including, for example, requirements to any public school therefore subject to the requirements of
children whose parents learn later in the teacher teaching in a core academic the Executive Order and subject to
school year that their child is struggling subject supported by Part A funds who
review by OMB. Section 3(f) of
and needs additional support. is hired after that date. The LEA also
Executive Order 12866 defines a
Moreover, it is important that parents must have a plan to ensure that all
‘‘significant regulatory action’’ as an
can easily access the forms to sign-up public school teachers teaching in core
action likely to result in a rule that may
for services. We know from our academic subjects in the LEA meet these
(1) have an annual effect on the
discussions with States and SES requirements by the end of the 2005–
economy of $100 million or more, or
providers that participation in SES is 2006 school year.
Under section 602(10)(A) of the IDEA adversely affect a sector of the economy,
lower when access to sign-up forms is
and 34 CFR 300.18, a highly qualified productivity, competition, jobs, the
limited, for example, by requiring
special education teacher must obtain environment, public health or safety, or
parents to attend a meeting or to travel
to a district or school office to obtain the full State certification as a special State, local or tribal governments, or
form. We believe that distributing sign- education teacher or pass the State communities in a material way (also
up forms directly to eligible students special education teacher licensing referred to as an ‘‘economically
and their parents and allowing eligible exam and hold a license to teach in the significant’’ rule); (2) create serious
students to sign up to receive SES State as a special education teacher. The inconsistency or otherwise interfere
services throughout the school year will IDEA also includes requirements for with an action taken or planned by
make it easier for students and parents special education teachers who teach another agency; (3) materially alter the
to take advantage of SES services. core academic subjects exclusively to budgetary impacts of entitlement grants,
Access to school facilities. The statute children who are assessed against user fees, or loan programs or the rights
does not require LEAs to pay or provide alternate academic achievement and obligations of recipients thereof; or
transportation for students to and from standards. Section 602(10)(C) of the (4) raise novel legal or policy issues
SES programs; therefore, if SES IDEA and 34 CFR 300.18(c) require arising out of legal mandates, the
providers cannot operate on school special education teachers teaching core President’s priorities, or the principles
grounds, families may have to arrange academic subjects exclusively to set forth in the Executive order. The
transportation for their children to the alternate achievement standards to meet Secretary has determined that this
site where SES services are provided. the NCLB requirements for elementary regulatory action is significant under
Although the Department has promoted school teachers and have subject matter section 3(f)(4) of the Executive order.
a policy of access to school facilities knowledge appropriate to the level of 1. Potential Costs and Benefits
through non-regulatory guidance and instruction being provided and needed
technical assistance for several years, to teach to those standards effectively. The proposed costs have been
many LEAs around the country Special education teachers teaching reviewed in accordance with Executive
continue to deny providers access to multiple subjects and who are new to Order 12866. Under the terms of the
their buildings. Giving providers access the profession have additional order, the Department has assessed the
to school facilities is an important way flexibility. Section 602(10)(D)(iii) of the costs and benefits of this regulatory
of ensuring that families can participate IDEA and 34 CFR 300.18(d) permit a action.
in, and students can attend, SES new special education teacher who In assessing the potential costs and
programs. teaches multiple subjects and who is benefits—both quantitative and
We believe that these proposed highly qualified in mathematics, qualitative—of these proposed
changes will encourage LEAs to language arts, or science, to have two regulations, the Department has
improve opportunities for parents to years to demonstrate competence on the determined that the benefits of the
take advantage of their options and other core area subjects the teacher proposed regulations exceed the costs.
result in more students participating in teaches, which may include a single The Department also has determined
public school choice and SES, high objective uniform State standard of that this regulatory action does not
ultimately leading to increased student evaluation (HOUSSE). unduly interfere with State, local, and
achievement. Proposed Regulations: Proposed tribal governments in the exercise of
§ 200.56(d) would add a cross-reference their governmental functions.
Section 200.56—Definition of ‘‘highly To assist the Department in
to the definition of highly qualified
qualified teacher’’ special education teachers in 34 CFR complying with the requirements of
Statutes and regulations: Under 300.18 of the IDEA regulations. Executive Order 12866, the Secretary
section 9101(23) of the ESEA and Reasons: Special education teachers invites comments on whether there may
§ 200.56, a highly qualified teacher in provide individualized and specialized be further opportunities to reduce any
any public elementary or secondary instruction to improve the academic potential costs or increase potential
school must hold at least a bachelor’s achievement of students with benefits resulting from these proposed
degree and either have (1) obtained full disabilities. The current Title I regulations without impeding the
State teacher certification or (2) passed regulations do not define the effective and efficient administration of
the State teacher licensing examination requirements for highly qualified the programs.
and hold a license to teach in that State. special education teachers who do not
The ESEA also includes additional teach core academic subjects. The cross- Summary of Costs and Benefits
requirements for a highly qualified reference aligns the Title I regulations The Department believes that the
teacher depending on which grade level with the IDEA regulations; the current majority of the proposed regulatory
the teacher teaches and whether the requirements for highly qualified changes will not impose significant
teacher is new to the profession. Under general or special education teachers costs on States, LEAs, or other entities
section 1119(a)(1) of the ESEA, would not change. that participate in programs funded
under Part A of Title I. For example, the requirements and on feedback from the calculating AYP. States have found such
entire cost of the National TAC would new peer review. systems to be valuable in numerous
be borne by the Department and would The costs to States of submitting a ways, including in tracking the
be financed through funds appropriated revised Accountability Workbook for educational progress of students as they
by the Congress for the Department’s technical assistance and peer review progress through grades and across
operations. As additional examples, the should be fairly low, as these schools and school systems; more
proposed regulations on multiple Accountability Workbooks would, in accurately determining whether
measures of student achievement, large part, incorporate policies and students graduate from high school;
identification of schools and LEAs for amendments that the States have calculating accurate student dropout
improvement, and restructuring should already included in their Workbooks in rates; holding schools and LEAs
provide useful clarification to the States past years. The Department estimates accountable for results; targeting
without imposing any new costs on that each State would, on average, assistance to those schools and LEAs
them. Similarly, the proposed require 112 hours of staff time to most in need; determining whether the
regulations would require LEAs to complete this effort, including 80 hours content their secondary schools offer is
notify parents of eligible students of the for development and analysis of a well aligned with college-preparedness
option to transfer their child to another proposed minimum subgroup size requirements; identifying strengths and
school, sufficiently in advance of, but policy (within an overall definition of weaknesses in teacher preparedness;
no later than 14 calendar days before, AYP) and an additional 32 hours for and measuring the educational
the start of the school year to give those actual preparation of the Workbook. We performance of the State as a whole. For
parents adequate time to exercise their further estimate that SEAs’ cost for that these reasons, many States had
public school choice option; this activity will be $30 an hour. For the 50 developed longitudinal student data
regulation would not increase LEA costs States, the District of Columbia, and systems, or were in the planning stages
because it would affect merely the Puerto Rico, the estimated cost of of such development, even before the
timing of the parental notification. revising and submitting their Department announced the Growth
As another example, States and LEAs Workbooks would thus be $174,720. Model Pilot in 2005. Therefore, the
should be able to implement at minimal The Department further estimates that Department believes it would be
cost the requirement to include NAEP 25 States may need to do additional inappropriate to assign the costs States
data on State and LEA report cards. The work on their Accountability incur in designing and implementing
State NAEP results are available on the Workbooks as a result of feedback from longitudinal data systems as a cost of
NCES Web site and through other the peer review. The Department this change in the regulations.
sources, and obtaining those data estimates that this work will require an The proposed regulations would
additional 40 hours of staff time per require States to adopt a uniform cohort
should not pose a significant burden.
State, adding an additional $30,000, for definition of graduation rate no later
Neither should including the data on
a total estimated cost of $204,720 to than school year 2012–2013. States that
the report cards, as the NAEP results
implement these proposed do not currently have the capacity to
would be a minor addition to the data
requirements. track student transfers would be
already so included. The Department believes that the required to use an interim rate, the
The regulations would clarify that costs of implementing this new policy Averaged Freshman Graduation Rate
State definitions of AYP must include a should be minimal. The Department (AFGR). The regulations also would
minimum subgroup size that is based on further believes that the benefits of this require the use of disaggregated
sound statistical methodology, that change, in terms of greater graduation rate data for AYP purposes
yields statistically reliable information accountability that would result from beginning in the 2008–2009 school year
for each purpose for which the use of minimum subgroup sizes that for States and LEAs and in the 2012–
disaggregated data are used, and that meet the proposed criteria, would 2013 school year for school-level
ensures that, to the maximum extent greatly outweigh the minimal costs of accountability determinations. In
practicable, all student subgroups are compliance. addition, the proposed regulations
included, particularly at the school The proposed regulation to allow would require a State to include in its
level, in accountability determinations. States to use measures of individual AYP definition (a) a graduation rate goal
All States would be required to revise student academic growth in school and that the State expects all high schools to
their Accountability Workbooks and LEA AYP determinations would provide meet (e.g., 90 percent), and (b) how
explain how their minimum subgroup States with greater flexibility without LEAs demonstrate continuous and
sizes meet these criteria and to provide burdening them with significant substantial improvement from the prior
certain other information on their additional costs. Although, in order to year toward meeting or exceeding the
minimum subgroup sizes and AYP receive permission to incorporate goal. To make AYP, the school or LEA
definitions. Within six months of the individual student academic growth must meet or exceed the graduation rate
effective date of the final regulation, into its AYP definition, a State would goal or demonstrate continuous and
States would be required to submit to have had to have implemented a substantial improvement.
the Department, for technical assistance longitudinal data system that tracks As discussed earlier (in the
and peer review, a revised student progress from grade to grade, it explanation of the proposed changes to
Accountability Workbook that reflects is highly unlikely that any State would § 200.19), the Department, based on
these new requirements. develop and implement such a data work completed by NCES and the NGA,
The Department has previously system only (or even primarily) in order believes that States can incorporate the
reviewed each State’s minimum to use measures of individual student AFGR into their AYP definitions using
subgroup size and believes that some growth for calculating AYP; this is the currently available data. The
already meet the proposed criteria. case because the benefits of having a Department, thus, believes these
Some States, however, may need to longitudinal student data system in adjustments can be completed at
revise their minimum subgroup sizes place are much greater than just having minimal cost. In order to meet the
and other components of the State’s the ability to support the use of proposed 2012–2013 deadline for
AYP definition based on the new individual student academic growth in implementation of a uniform cohort
graduation rate, States will need to have supports States’ development of other small or isolated districts often do
in place a data system that can track longitudinal student data systems not have any approved SES providers
cohorts over four years, including the through the Department’s Statewide serving their area. For this reason, our
ability to track (and include in Longitudinal Data Systems program. For analysis assumes that 80 percent of the
graduation rate calculations) students the fiscal years 2005 (when the program estimated 2,000 LEAs with at least one
who drop out of school or leave in order began) through 2008, the Congress has school in year two of improvement or
to transfer to another school. States also appropriated more than $122 million for later, or 1,600 districts, will be subject
will need to collect four years of student this program and, through fiscal year to the notice requirement annually. We
data through those systems in order to 2007, 27 States have received these estimate that these 1,600 LEAs will each
implement the new rate by the proposed grants. require an average of 12 hours of staff
deadline. However, it is important to We believe the benefits of the time to prepare the notice to parents so
note that, while a data system that proposed changes regarding graduation that it is clearly distinguishable from the
tracks individual student data could be rate clearly outweigh the fairly minimal other information sent to parents and
used to collect data for this rate, such a net costs previously discussed. A that the cost for this time will average
system would not be required in order uniform and accurate method of $25 per hour. Under this assumption,
to implement the proposed graduation calculating graduation rates is needed to the cost for the preparation of this
rate requirements. In addition, the data raise expectations and to hold schools, notice will be $480,000.
needed to calculate the AFGR are districts, and States accountable for Further, in the 2006–2007 school
already available to all schools, LEAs, increasing the number of students who year, in the States for which the
and States, as reported in the Common graduate on time with a regular high Department has data, approximately 3.6
Core of Data produced by NCES. school diploma, as well as to provide million students were eligible for SES.24
The proposed regulations would not parents and the public with more Assuming that approximately 3.6
impose new costs on a State unless it accurate information. By requiring all million students continue to be eligible
does not yet have the data system States to use a more rigorous and each year, we project that the parents of
capability to start collecting the four accurate graduation rate calculation, the one half of these students would receive
years of data needed to implement the Department can ensure greater the SES information by mail, in a
uniform cohort graduation rate. We accountability and transparency on this separate mailing, and one-half through
believe that the proposed regulations important indicator. In addition, we notices that students bring home from
would not impose significant costs on need to have a uniform and accurate school, in a mailing that includes other
States that they were not likely to method of calculating high school information already required to be
assume in the absence of the graduation rates to improve our provided to parents (in § 200.37), or by
regulations. In 2005, all 50 States agreed understanding of the scope and other means that impose very small
to the National Governors Association’s characteristics of those students costs on LEAs. For the one-half who
Graduation Counts: A Compact on State dropping out of school or taking longer would receive the notices by mail, the
High School Graduation Data, which to graduate. cost (assuming continuation of current
calls for each State to develop a The final set of proposed regulations postage rates) would be $738,000,
longitudinal graduation rate. In in this package relates to the bringing the total cost for the
addition, data reported by the States to implementation of public school choice implementation of the proposed SES
the Data Quality Campaign indicate that and SES. The proposed language in notice requirement to $1,218,000.
all States except for two will have in § 200.37(b)(5)(ii)(C), (b)(5)(iii)(A), and The proposed regulations in § 200.39
place a data system that can track (b)(5)(iii)(B) would require that the would require LEAs to post on their
individual students by the end of the notice to parents of students eligible for Web sites information on their
2007–2008 school year.23 Moreover, one SES: (a) Explain the benefits of SES, (b) implementation of the public school
of the two States that does not yet have be clear and concise, and (c) be clearly choice and SES requirements, including
such a system already uses an distinguishable from the other information on the number of students
alternative method to calculate a cohort information sent to parents under who were eligible for and who
graduation rate that would meet the § 200.37. Following, we estimate the participated in the public school choice
proposed regulatory requirements, and costs of meeting this requirement. We and SES options, information on
both States report that they will have note here that LEAs could assign costs approved SES providers operating in the
such a data system by 2009–2010. These related to meeting this requirement to district, and a list of schools available to
States should be able to collect the four the amount equal to 0.2 percent of their students who wish to take advantage of
years of required data by 2012–2013. Title I, Part A allocations that the the public school choice option. Based
Again, all of this reflects activities that proposed regulations would permit on data from the ESEA Consolidated
the States initiated in the absence of the LEAs to use for outreach and assistance State Performance Report,
proposed regulation. to parents on public school choice and approximately 3,000 LEAs have a school
Therefore, as with the regulation on SES. in year one of improvement or later and
including individual student academic Data from the ESEA Consolidated thus are technically required to offer
growth in AYP definitions, it would not State Performance Report indicate that either public school choice, or both
be appropriate to assume that the cost approximately 2,000 LEAs nationally public school choice and SES, to their
of developing these data systems would have at least one school in year two of eligible students. However, as with the
be attributable, in whole or even in large school improvement (or in a later stage SES notice requirement, some of those
part, to the need to comply with the of the Title I accountability timeline). LEAs would not be affected because
proposed regulation on the graduation These are the schools with students
they are unable to offer public school

rate. Moreover, the Federal government eligible for SES that would technically choice and SES due to a lack of choice
be covered by this new requirement. options (for instance, rural and other
23 Data Quality Campaign, 2007 State Data
However, some of these LEAs are not
Collection Survey Results: State Specific Responses able to offer SES and thus are not
to Element 1. (2007). Austin, TX: Author. Available 24 U.S. Department of Education. (2007).
at: http://www.dataqualitycampaign.org/files/ affected by the proposed notice Consolidated State Performance Report, 2006–07.
element1_survey_responses.pdf. requirement. For example, rural and Unpublished raw data.
small districts frequently have only one evaluation results, if any, demonstrating related transportation and SES to other
school at a particular grade span) or the that the instructional program has purposes, to provide satisfactory
absence of an approved SES provider improved student achievement. The evidence to the SEA that they have
serving their area. We estimate that 80 Department believes that these demonstrated success in:
percent of the 3,000 LEAs with a school requirements will result in (1) Partnering with community-based
in year one of improvement or later, or improvements in States’ SES provider organizations and other groups in order
2,400 districts, would need to post the approval procedures resulting in high- to inform eligible students and their
new information on their Web site. We quality SES and improved student families about their opportunities for
further estimate that these districts achievement, and that the cost of public school choice and SES;
would require an average of 25 hours of compliance will be very minimal. (2) Ensuring that eligible students and
staff time to prepare the data for the The proposed regulations in § 200.47 their families have had a genuine
Web, at a cost of $25 per hour, for an also would specify the evidence that opportunity to transfer to schools or to
estimated national cost of $1,500,000 to States must consider when monitoring receive SES. The proposed language
meet the new requirement to post public the quality and effectiveness of the would clarify that providing such an
school choice and SES information on services offered by an approved opportunity includes (a) providing
LEA web sites. Therefore, the total provider in order to inform decisions on timely and accurate notice to those
estimated cost for implementation of the renewal or withdrawal of approval of students and their families, as required
new SES and Web site notice the provider. The current statute and under §§ 200.36 and 200.37; and (b)
requirements is $2,718,000. regulations already require States to ensuring that sign-up forms for SES are
The benefits would be that parents approve SES providers with a distributed directly to all eligible
and others would have more and better demonstrated record of effectiveness, students and are made widely available
information on the public school and to develop and apply objective and accessible; and (c) allowing eligible
choices and SES programs available to criteria for monitoring and withdrawal students to sign up to receive SES
eligible children and, thus, parents of approval of providers. The proposed throughout the school year; and
might be more likely to take advantage regulations may add minimal costs to (3) Ensuring that approved SES
of those options (with attendant benefits States if they need to revise their providers are given access to school
for those children) and that LEA applications or monitoring protocol in facilities through a fair, open, and
implementation of the choice and SES order to comply with the requirements, objective process.
requirements would be more or if a revised application or protocol The Department believes that most of
transparent. We also note that LEAs results in more labor-intensive the costs that LEAs would incur in
could assign costs related to meeting application review or monitoring. The meeting these requirements would be
this requirement to the amount equal to proposed regulations would only add minimal. The most tangible costs would
0.2 percent of their Title I, Part A costs to SES providers if they are not be for developing a clearly
allocations under proposed already providing this information to distinguishable notification (on
§ 200.48(a)(2)(iii)(C). States in their applications for approval eligibility and the benefits of SES) to
The proposed regulations in § 200.47 and renewal. The minimal costs to parents of eligible students (which has
would clarify the SEA’s responsibilities States and SES providers would be been accounted for in the cost estimate
for SES, by stating that those outweighed by the benefits of having a for § 200.37) and in documenting to the
responsibilities include developing, clear outline of the evidence that States SEA that it has met the various outreach
implementing, and publicly reporting must consider both before providers and access requirements in proposed
on the SEA’s standards and techniques begin serving students in the State and § 200.48. We estimate these additional
for monitoring LEAs’ implementation of as their programs are monitored and SEA documentation costs related to
SES. The Department believes that being considered for renewal or § 200.48 as follows.
States already have such standards and termination. As noted earlier, we project that 2,400
techniques in place and that the burden The proposed regulations on funding LEAs annually will be required to offer
of publicly reporting on them, such as for public school choice and SES in public school choice, or both choice and
by posting information about them on § 200.48 would allow LEAs to count SES, to their eligible students. Further,
the SEA’s Web site, would be very costs for parent outreach and assistance based on data for 378 LEAs reported to
minimal. The benefit of the proposed toward the requirement to spend the the Department’s EDFacts data system,
regulations would be greater equivalent of 20 percent of the LEA’s we estimate that 10 percent of those
transparency of how SEAs monitor Title I, Part A allocation on choice- LEAs (240) will use the full 20 percent
LEAs implementation of SES. related transportation and SES. This equivalent for choice-related
The proposed regulations in § 200.47 change would permit an LEA to allocate transportation and SES and, thus, will
would also clarify that, in order to be up to 0.2 percent of its Title I, Part A not be affected by the regulations.25
approved as an SES provider, an entity allocation (1.0 percent of the 20 percent Further, based on the EDFacts data, we
must provide the State with evidence obligation) in that manner. Allowing estimate that an additional 15 percent of
that the instruction it would provide LEAs to count a limited amount of the LEAs (360) will not initially meet
and the content it would use are aligned funds for parent outreach and assistance the 20 percent requirement but will
with the State’s academic content and will help ensure that parents have the spend the remaining funds for choice-
student academic achievement information they need to make the best related transportation and SES in the
standards and are research based. In decisions for their children. This change following year, rather than applying to
addition, a State would also be required would not impose costs on LEAs, as
to consider, at a minimum, (1) whether they would, at their discretion, support
25 The EDFacts data from 2005–2006 indicate that

the entity has been removed from any the parental outreach and assistance 8.2 percent of LEAs used the equivalent of at least
State’s approved provider list; (2) parent activities by redirecting funds from 20 percent of their Title I allocation to fund SES.
recommendations or results from parent other activities. Unfortunately, the data do not include expenditures
for choice-related transportation. We assume that
surveys, if any, regarding the success of The proposed amendments to the inclusion of expenditures for choice-related
the entity’s instructional program in § 200.48 also would require LEAs, transportation would bring the total to
increasing student achievement; and (3) before reallocating funds from choice- approximately 10 percent.
the SEA for permission to use those in significant benefits, in terms of more 2. Clarity of the Regulations
funds for other purposes.26 students receiving choice and SES Executive Order 12866 and the
The remaining 1,800 LEAs, under our under Title I and students and their Presidential memorandum on ‘‘Plain
assumptions, would need to submit families receiving better information Language in Government Writing’’
evidence to their SEAs that they have about their options. A recent study by require each agency to write regulations
demonstrated success in the indicated the RAND Corporation, supported by that are easy to understand.
areas. We estimate that the annual cost the Department, found that, in five out The Secretary invites comments on
of this effort will be $720,000, based on of the seven large urban districts in how to make these proposed regulations
an assumption that each LEA would which there were sufficient numbers of easier to understand, including answers
require 16 hours to prepare a students to analyze the effects, the to questions such as the following:
submission documenting its efforts in students participating in SES showed • Are the requirements in the
this area and that LEAs’ costs for this statistically significant positive effects proposed regulations clearly stated?
effort would be $25 per hour. in both reading and mathematics • Do the proposed regulations contain
The Department also has estimated achievement.27 Moreover, for those technical terms or other wording that
the costs that SEAs will incur in students using SES for multiple years, interfere with their clarity?
considering the submissions prepared the analysis suggests that the positive • Does the format of the proposed
by LEAs. We have estimated that the effects might accumulate over time. If regulations (grouping and order of
total annual cost would be SES can continue to improve student sections, use of headings, paragraphing,
approximately $27,000, based on an achievement and close the achievement etc.) aid or reduce their clarity?
assumption that, as described gap, students, schools, and LEAs will • Would the proposed regulations be
previously, 1,800 LEAs will submit benefit. In sum, the Department believes easier to understand if we divided them
them, that SEAs will require 30 minutes that the benefits students will receive, if into more (but shorter) sections? (A
to review and act on each submission, more LEAs provide eligible students ‘‘section’’ is preceded by the symbol
and that SEAs’ costs for that activity with a genuine opportunity to take ‘‘§ ’’ and a numbered heading; for
will be $30 per hour. The total advantage of the public school choice example, § 200.13 Adequate yearly
estimated annual cost for LEAs and and SES options, will well exceed the progress in general.)
SEAs related to the reallocation small costs LEAs and SEAs would • Could the description of the
requirements of proposed § 200.48 assume in implementing these proposed regulations in the
would be $747,000. regulations. Moreover, LEAs and SEAs SUPPLEMENTARY INFORMATION section of
Overall, the total estimated cost of will be able to use Federal funds this preamble be more helpful in
implementing the proposed regulations provided through Title I, Part A to meet making the proposed regulations easier
on public school choice and SES would the aforementioned administrative to understand? If so, how?
be $3,465,000. expenses. • What else could we do to make the
Although our cost estimates for the
The major benefit of these proposed proposed regulations easier to
proposed public school choice and SES
regulations, taken in their totality, is a understand?
regulations are necessarily speculative
Title I, Part A program in which clearer Send any comments that concern how
(because of the limited availability of
accountability and implementation the Department could make these
relevant data), the estimated costs are
requirements (particularly in the areas proposed regulations easier to
low even if some of the assumptions are
of high school graduation, public school understand to the person listed in the
changed significantly. For example, if
choice, and SES) would be coupled with ADDRESSES section of the preamble.
the number of hours required at each
stage of implementing the new public greater flexibility in implementation Regulatory Flexibility Act Certification
school choice and SES regulations were (particularly in the use of measures of
individual student academic growth in The Secretary certifies that these
doubled, the total annual cost would proposed regulations will not have a
increase only to $6,192,000. These costs, calculating AYP). These proposed
regulations would thus add to the significant economic impact on a
even when combined with the estimated substantial number of small entities.
$204,720 attributable to implementation contributions that NCLB has made to
The small entities that the proposed
of the proposed regulations on the creation of a system in which
regulations will affect are small LEAs
minimum subgroup size and submission schools, LEAs, and States expect to
receiving funds under Title I. These
of revised Accountability Workbooks, educate all children to high standards
proposed regulations would not have a
are an extremely small amount within and are held accountable for doing so.
significant economic impact because the
the context of the $13.9 billion Title I The proposed regulations would
regulations impose minimal
program. support the attainment of increases in
requirements beyond those that would
The Department believes that student achievement that build on the
otherwise be required under the Act,
promulgation of the regulations on improvements that the Nation has seen
with most of those requirements falling
public school choice and SES will result in the last several years. The benefits to
on SEAs. Further, the small LEAs
the United States, both economic and should be able to meet the costs of
26 This estimate is based on the assumption that
non-economic, of having a more compliance with these regulations using
LEAs that spend close to the 20 percent will find educated citizenry have been plentiful
it more efficient to spend the remaining funds the Federal funds provided through Title I.
following year than to apply to the SEA for and will continue to be so as the reforms
approval to use those funds for other purposes. The implemented as a result of NCLB (and Paperwork Reduction Act of 1995
EDFacts data from 2005–2006 indicate that 11.6 as supported through the proposed These proposed regulations contain
percent of LEAs used the equivalent of at least 16 regulations) continue to take hold.
percent (but less than 20 percent) of their Title I information collection provisions that
allocations for SES. Again, the data do not include are subject to review by OMB under the
expenditures for choice-related transportation; we 27 U.S. Department of Education. (2007). State
Paperwork Reduction Act of 1995 (44
assume that if those expenditures were included, and Local Implementation of the No Child Left
approximately 15 percent of LEAs will elect to Behind Act, Volume I—Title I School Choice,
U.S.C. 3501–3520). A description of the
spend the remaining funds of their obligation in the Supplemental Educational Services, and Student specific information collection
succeeding year. Achievement, Washington, DC: Author. requirements is given below with an
estimate of the annual recordkeeping § 200.19(e)(1); § 200.19(e)(2); § 200.20(h); Reporting under ESEA, Title I, Part A
burden for these requirements. (Two of § 200.37(b)(5); § 200.39(c); § 200.47(a)(4)(iii); (OMB Number 1810–0581) and
the requirements do not add additional and § 200.48(d). Consolidated State Application (OMB
burden to what has already been Interested persons are requested to Number 1810–0576).
approved.) Included in the estimate is send comments regarding the Burden hours and cost estimates for
the time for collecting and tracking data, information collections to the U.S. the proposed regulations pertaining to
maintaining records, calculations, and Department of Education (ED) within 60 ‘‘State Educational Agency, Local
reporting. days after publication of these proposed Educational Agency, and School Data
The proposed regulations include regulations. This comment period does Collection and Reporting under ESEA,
information collection requirements not affect the deadline for public Title I, Part A (OMB Number 1810–
associated with the following provisions comments associated with these 0581)’’ are presented in the following
that will add additional burden: proposed regulations. tables on the next two pages. The first
§ 200.7(a)(2)(i); § 200.11(c); § 200.19(a)(1); Collections of information: State table presents the estimated burden for
§ 200.19(a)(1)(i); § 200.19(a)(1)(i)(C)(2); Educational Agency Local Educational SEAs and the second table the estimated
§ 200.19(a)(1)(ii)(A); § 200.19(d)(1); Agency, and School Data Collection and burden for LEAs.
TITLE I.—REGULATIONS (COLLECTION 1810–0581) PROPOSED REGULATIONS BURDEN HOURS/COST FOR SEAS
Average Total cost
Number of number of
Citation Description Total hours (total hours ×
respondents hours per $30.00)
respondent
§ 200.11(c) .................... Adding NAEP data to SEA report cards and de- 52 5 260 $7,800
veloping tool for parents to compare NAEP
and State assessment data.
§ 200.19(a)(1) ............... By SY 2012–2013 begin calculating graduation 47 240 11,280 338,400
rate as the number of students graduating in
the standard number of years divided by the
number of students in that class’s adjusted
cohort.
§ 200.19(a)(1)(ii)(A) ....... Through SY 2011–2012 option to calculate 47 40 1,880 56,400
graduation rate using the Averaged Fresh-
man Graduation Rate (AFGR).
§ 200.19(e)(1) ............... By SY 2012–2013 calculate the graduation rate 47 120 5,640 169,200
in accordance with § 200.19(a)(1) in the ag-
gregate and disaggregate for reporting under
section 1111(h) of ESEA and determining
AYP under § 200.20.
§ 200.19(e)(2) ............... Through SY 2011–2012 at the LEA and State 47 120 5,640 169,200
levels calculate the graduation rate in accord-
ance with § 200.19(a)(1) or § 200.19(a)(1)(ii)
for reporting under section 1111(h) of ESEA
and determining AYP under § 200.20; and at
the school level in the aggregate for deter-
mining AYP under § 200.20(b)(2) but in the
aggregate and disaggregate for determining
AYP under § 200.20(b)(2) and reporting
under section 1111(h) of ESEA.
§ 200.47(a)(4)(iii) ........... Develop, implement, and publicly report on 52 40 2,080 62,400
standards and techniques for monitoring
LEAs’ implementation of the SES require-
ments.
§ 200.48(d) .................... Reviewing LEAs’ submissions on demonstrating 52 21.634 1,125 33,750
success in the indicated areas.
Total ....................... N/A ...................................................................... 52 N/A 27,905 837,150
Information collection activities are burden to SEAs because they simply already estimated for § 200.47(a) in the
also associated with other proposed specify how SEAs are to carry out this currently approved 1810–0581
revisions to § 200.47(a)(4) at the SEA part of the regulation and related collection.
level. These particular revisions, regulations, but should not require
however, would not pose an additional additional time beyond the hours
TITLE I.—REGULATIONS (COLLECTION 1810–0581) PROPOSED REGULATIONS BURDEN HOURS/COST FOR LEAS
Average Total cost
Number of number of
respondent
§ 200.19(a)(1)(i) ............. Documentation that a student has enrolled in a 13,987 50 699,350 $17,483,750
program of study in another school, LEA, or
other educational program that culminates in
the award of a regular high school diploma.
§ 200.37(b)(5) ................ Providing notice to parents that their children 3,000 12 36,000 900,000
are eligible for SES and describing the bene-
fits of SES.
§ 200.39(c) ..................... Provide information on public school choice and 2,400 25 60,000 1,500,000
SES.
§ 200.48(d) ..................... Demonstrating success in the indicated areas ... 2,250 16 36,000 900,000
Total ........................ .............................................................................. 13,987 N/A 831,350 20,783,750
Information collection activities are additional burden to LEAs; they simply SEA burden hours and cost estimates
also associated with modified cross reference an existing regulation for the proposed regulations pertaining
§ 200.37(b)(4)(iv) and the new regulation (§ 200.37) for which sufficient hours are to ‘‘Consolidated State Application
in § 200.44(a)(2)(ii). The information already accounted for in the currently (OMB Number 1810–0576)’’ are
collection activities associated with approved 1810–0581 collection. presented in the following table.
these changes would not pose an
TABLE 3.—CONSOLIDATED STATE APPLICATION (COLLECTION 1810–0576)

Average Total cost
Number of number of
respondent
§ 200.7(a)(2)(i) ............... Determining minimum subgroup size and revis- 52 112 5,824 $174,720
ing Accountability Workbook.
§ 200.19(a)(1)(i)(C)(2) .... Option for State to propose an alternate defini- 52 40 2,080 62,400
tion of ‘‘standard number of years’’ for limited
categories of students.
§ 200.19(d)(1) ................ Requirement for State to obtain approval of its 52 40 2,080 62,400
definition of ‘‘continuous and substantial im-
provement’’ to determine whether high
schools make AYP.
§ 200.20(h) ..................... Request waiver under section 9401 of ESEA to 52 240 12,480 374,400
incorporate academic growth into State’s AYP
definition.
Total ........................ .............................................................................. 52 N/A 22,464 673,920
If you want to comment on the • Evaluating the accuracy of our ensure that OMB gives your comments
proposed information collection estimate of the burden of the proposed full consideration, it is important that
requirements, please send your collections, including the validity of our OMB receives the comments within 30
comments to the Office of Information methodology and assumptions; days of publication. This does not affect
and Regulatory Affairs, OMB, Attention: • Enhancing the quality, usefulness, the deadline for your comments to us on
Desk Officer for U.S. Department of and clarity of the information we the proposed regulations.
Education. Send these comments by e- collect; and
Requests for copies of the submission
mail to OIRA_DOCKET@omb.eop.gov or • Minimizing the burden on those for OMB review may be accessed from
by fax to (202) 395–6974. Commenters who must respond. This includes
need only submit comments via one http//edicsweb.ed.gov by selecting the
exploring the use of appropriate
submission medium. You may also send ‘‘Browse Pending Collections’’ link.
automated, electronic, mechanical, or
a copy of these comments to the other technological collection When you access the information
Department contact named in the techniques or other forms of information collection, click on ‘‘Download
ADDRESSES section of this preamble. technology (e.g., permitting electronic Attachments’’ to view. Written requests
We consider your comments on these submission of responses). for information should be addressed to
proposed collections of information in— OMB is required to make a decision U.S. Department of Education, 400
• Deciding whether the proposed concerning the collections of Maryland Avenue, SW., LBJ Building,
collections are necessary for the proper information contained in these Washington, DC 20202–4537. Requests
performance of our functions, including proposed regulations between 30 and 60 may also be electronically mailed to the
whether the information will have days after publication of this document Internet address ICDocketMgr@ed.gov or
practical use; in the Federal Register. Therefore, to faxed to (202) 401–0920.
Intergovernmental Review § 200.2 State responsibilities for Department for technical assistance and
assessment. peer review under the process
This program is not subject to
* * * * * established by the Secretary under
Executive Order 12372 and the (b) * * * section 1111(e)(2) of the Act.
regulations in 34 CFR part 79. (7) Involve multiple up-to-date * * * * *
Electronic Access to This Document measures of student academic 4. Section 200.11 is amended by
achievement, including measures that adding a new paragraph (c) to read as
You may view this document, as well assess higher-order thinking skills and
as all other Department of Education follows:
understanding of challenging content, as
documents published in the Federal defined by the State. These measures § 200.11 Participation in NAEP.
Register, in text or Adobe Portable may include— * * * * *
Document Format (PDF) on the Internet (i) Single or multiple question formats (c) Report cards. Each State and LEA
at the following site: www.ed.gov/news/ that range in cognitive complexity must report on its annual State or LEA
fedregister. within a single assessment; and report card, respectively, the most
To use PDF you must have Adobe (ii) Multiple assessments within a recent available academic achievement
Acrobat Reader, which is available free subject area. results in each grade assessed, in the
at this site. If you have questions about * * * * * aggregate and disaggregated, on the
using PDF, call the U.S. Government 3. Section 200.7 is amended by: State’s NAEP reading and mathematics
Printing Office (GPO), toll free, at 1– A. Revising paragraph (a)(2)(i). assessments under paragraph (a) of this
888–293–6498; or in the Washington, B. Redesignating paragraph (a)(2)(ii) section.
DC, area at (202) 512–1530. as (a)(2)(iv). * * * * *
Note: The official version of this document C. Adding new paragraphs (a)(2)(ii)
5. Section 200.19 is amended by:
is the document published in the Federal and (a)(2)(iii).
A. Revising paragraph (a)(1).
Register. Free Internet access to the official The revision and additions read as
B. Revising paragraph (d).
edition of the Federal Register and the Code follows:
of Federal Regulations is available on GPO C. Redesignating paragraph (e) as
Access at: www.gpoaccess.gov/nara/ § 200.7 Disaggregation of data. paragraph (f).
index.html. (a) * * * D. Adding a new paragraph (e).
(2)(i) Based on sound statistical The revisions and addition read as
(Catalog of Federal Domestic Assistance methodology, each State must follows:
Number: 84.010 Improving Programs
determine the minimum number of
Operated by Local Educational Agencies) § 200.19 Other academic indicators.
students sufficient to—
List of Subjects in 34 CFR Part 200 (A) Yield statistically reliable (a) * * *
information for each purpose for which (1) High schools. The graduation rate
Administrative practice and for public high schools, defined as
disaggregated data are used; and
procedure, Adult education, Children, (B) Ensure that, to the maximum follows:
Education of children with disabilities, extent practicable, all student subgroups (i) Beginning no later than the 2012–
Education of disadvantaged children, in § 200.13(b)(7)(ii) are included, 2013 school year, a State must calculate
Elementary and secondary education, particularly at the school level, for the graduation rate as the number of
Eligibility, Family-centered education, purposes of making accountability students who graduate in the standard
Grant programs—education, Indians— determinations. number of years with a regular high
education, Infants and children, (ii) Each State must revise its school diploma divided by the number
Institutions of higher education, Consolidated State Application of students who form the adjusted
Juvenile delinquency, Local educational Accountability Workbook under section cohort for that graduating class.
agencies, Migrant labor, Nonprofit 1111 of the Act to include— (A)(1) Consistent with paragraph
private agencies, Private schools, Public (A) An explanation of how the State’s (a)(1)(i)(C) of this section, the term
agencies, Reporting and recordkeeping minimum subgroup size meets the ‘‘adjusted cohort’’ means the students
requirements, State-administered requirements of paragraph (a)(2)(i) of who entered grade 9 together and any
programs, State educational agencies. this section; students who transferred into or entered
Dated: April 17, 2008. (B) An explanation of how other the cohort in grades 9 through 12 minus
Margaret Spellings, components of the State’s definition of any students removed from the cohort.
Secretary of Education. adequate yearly progress (AYP), in (2) To remove a student from the
addition to the State’s minimum cohort, a school or LEA must confirm
For the reasons discussed in the subgroup size, interact to affect the that the student has either transferred or
preamble, the Secretary proposes to statistical reliability of the data and to is deceased. To confirm that a student
amend part 200 of title 34 of the Code ensure the maximum inclusion of all has transferred, the school or LEA must
of Federal Regulations as follows: students and student subgroups in have official documentation that the
§ 200.13(b)(7)(ii); and student has enrolled in a program of
PART 200—TITLE I—IMPROVING THE
(C) Information regarding the number study in another school, LEA, or other
ACADEMIC ACHIEVEMENT OF THE
and percentage of students and student educational program that culminates in
DISADVANTAGED
subgroups in § 200.13(b)(7)(ii) excluded the award of a regular high school
1. The authority citation for part 200 from school-level accountability diploma.
determinations. (3) A student who is retained in grade,
continues to read as follows:

(iii) No later than six months enrolled in a General Educational
Authority: 20 U.S.C. 6301 through 6578,
following the effective date of this Development (GED) program, or leaves
unless otherwise noted.
regulation, each State must submit a school for any other reason may not be
2. Section 200.2 is amended by revised Consolidated State Application counted as a transfer for the purpose of
revising paragraph (b)(7) to read as Accountability Workbook in accordance calculating the graduation rate and must
follows: with paragraph (a)(2)(ii) to the remain in the adjusted cohort.
(B) The term ‘‘regular high school year, as defined by the State under (ii) Need not disaggregate those
diploma’’ means the standard high paragraph (d)(1)(ii) of this section. indicators for determining AYP under
school diploma that is awarded to (3) A State may, but is not required to, § 200.20(a)(1)(ii) (meeting the State’s
students in the State and that is fully increase the goals of its academic annual measurable objectives).
aligned with the State’s academic indicators other than graduation rate. * * * * *
content standards or a higher diploma (e)(1) No later than the 2012–2013 6. Section 200.20 is amended by:
and does not include a GED, certificate school year, a State must calculate the A. Adding a new paragraph (h).
of attendance, or any alternative award. graduation rate in paragraph (a)(1)(i) of B. Revising the authority citation.
(C)(1) The term ‘‘standard number of this section at the school, LEA, and The addition and revision read as
years’’ means four years unless a high State levels in the aggregate and follows:
school begins after ninth grade, in disaggregated by each subgroup in
which case the standard number of § 200.20 Making adequate yearly progress.
§ 200.13(b)(7)(ii) (economically
years is the number of grades in the disadvantaged students; students from * * * * *
school. major racial and ethnic groups; students (h) Student academic growth. (1) A
(2) A State may propose, for approval with disabilities as defined in section State may request authority under
by the Secretary, an alternate definition 9101(5) of the Act; and students with section 9401 of the Act to incorporate
of ‘‘standard number of years’’ that limited English proficiency as defined student academic growth in the State’s
would apply to limited categories of in section 9101(25) of the Act) for definition of AYP under this section.
students who, under certain conditions, reporting under section 1111(h) of the (2) A State’s policy for incorporating
may take longer to graduate. Act (annual report cards) and for student academic growth in the State’s
(ii)(A) A State that does not have in determining AYP under § 200.20. definition of AYP must—
effect a Statewide data system necessary (2) Prior to school year 2012–2013, a (i) Set annual growth targets that—
to calculate the graduation rate as State must calculate the graduation rate (A) Will lead to all students, by school
defined in paragraph (a)(1)(i) of this in paragraph (a)(1)(i) or (a)(1)(ii) of this year 2013–2014, meeting or exceeding
section must use the Averaged section— the State’s proficient level of academic
Freshman Graduation Rate (AFGR) on a (i) At the LEA and State levels, in the achievement on the State assessments
transitional basis. The AFGR is the aggregate and disaggregated in under § 200.2;
number of high school students who (B) Are based on meeting the State’s
accordance with paragraph (e)(1) of this
graduate in the standard number of proficient level of academic
section; and
years with a regular high school achievement on the State assessments
(ii) At the school level—
diploma, as defined in this section, under § 200.2 and are not based on
(A) In the aggregate for determining
divided by the number of students in individual student background
AYP under § 200.20(a)(1)(ii); but
the incoming freshman class four years characteristics; and
(B) In the aggregate and disaggregated (C) Measure student achievement
earlier (assuming that the standard
by each subgroup in § 200.13(b)(7)(ii) separately in mathematics and reading/
number of years is four under paragraph
(economically disadvantaged students; language arts;
(a)(1)(i)(C) of this section), which is
students from major racial and ethnic (ii) Ensure that all students enrolled
estimated by averaging the enrollment
groups; students with disabilities as in the grades tested under § 200.2 are
of that freshman class with the
defined in section 9101(5) of the Act; included in the State’s assessment and
enrollment of that class in eighth grade
and students with limited English accountability systems;
the prior year and in tenth grade the
proficiency as defined in section (iii) Hold all schools and LEAs
subsequent year (or the average of the
9101(25) of the Act) for purposes of accountable for the performance of all
enrollment for the ninth and tenth
determining AYP under § 200.20(b)(2) students and the student subgroups
grades if a school or LEA does not have
(‘‘safe harbor’’), for reporting under described in § 200.13(b)(7)(ii);
an eighth grade).
(B) A State may not use the AFGR to section 1111(h) of the Act (annual report (iv) Be based on State assessments
calculate graduation rate after school cards), and as required under section that—
year 2011–2012. 1111(b)(2)(C)(vii) of the Act (additional (A) Produce comparable results from
other academic indicators in a State’s grade to grade and from year to year in
* * * * * definition of AYP).
(d)(1) A State must— mathematics and reading/language arts;
(i) Set a graduation rate goal that (3) With respect to its other academic (B) Have been in use by the State for
represents the rate the State expects all indicators, other than graduation rate, a more than one year; and
high schools to meet; State— (C) Have received full approval from
(ii) Define how schools and LEAs (i) Must disaggregate those indicators the Secretary before the State
demonstrate continuous and substantial by each subgroup described in determines AYP based on student
improvement from the prior year toward § 200.13(b)(7)(ii) (economically academic growth;
meeting or exceeding the graduation disadvantaged students; students from (v) Track student progress through the
rate goal; and major racial and ethnic groups; students State data system;
(iii) Submit to the Secretary for with disabilities as defined in section (vi) Include, as separate factors in
approval the graduation rate goal and 9101(5) of the Act; and students with determining whether schools are
the definition of continuous and limited English proficiency as defined making AYP for a particular year—
substantial improvement. in section 9101(25) of the Act) for (A) The rate of student participation
(2) Beginning in the 2008–2009 school purposes of determining AYP under in assessments under § 200.2; and
year, in order to make AYP, a high § 200.20(b)(2) (‘‘safe harbor’’), for (B) Other academic indicators as
school or LEA must— reporting under section 1111(h) of the described in § 200.19; and
(i) Meet or exceed the graduation rate Act (annual report cards), and as (vii) Describe how the State’s annual
goal set by the State under paragraph required under section 1111(b)(2)(C)(vii) growth targets fit into the State’s
(d)(1)(i) of this section; or of the Act (additional other academic accountability system in a manner that
(ii) Demonstrate continuous and indicators in a State’s definition of ensures that the system is coherent and
substantial improvement from the prior AYP); but that incorporating student academic
growth into the State’s definition of § 200.32 Identification for school subsequent school year, the number of
AYP does not dilute accountability. improvement. students who were eligible for and the
(3) A State’s proposal to incorporate (a)(1)(i) * * * number of students who participated in
student academic growth in the State’s (ii) In identifying schools for public school choice.
definition of AYP will be peer reviewed improvement, an LEA— (2) Beginning with data from the
under the process established by the (A) May base identification on 2007–2008 school year and for each
Secretary under section 1111(e)(2) of the whether a school did not make AYP subsequent school year, the number of
Act. because it did not meet the annual students who were eligible for and the
(Authority: 20 U.S.C. 6311(b)(2), (b)(3)(C)(xi); measurable objectives for the same number of students who participated in
7861) subject or meet the same other academic supplemental educational services.
indicator for two consecutive years; but (3) For the current school year, a list
7. Section 200.22 is added to read as (B) May not limit identification to of supplemental educational services
follows: those schools that did not make AYP providers approved by the State to serve
§ 200.22 National Technical Advisory only because they did not meet the the LEA and the locations where
Council. annual measurable objectives for the services are provided.
(a) To provide advice to the same subject or meet the same other (4) For the current school year, a list
Department on technical issues related academic indicator for the same of available schools to which students
to the design and implementation of subgroup under § 200.13(b)(7)(ii) for two eligible to participate in public school
standards, assessments, and consecutive years. choice may transfer.
accountability systems, the Secretary * * * * * * * * * *
shall establish a National Technical 9. Section 200.37 is amended by: 11. Section 200.43 is amended by:
Advisory Council (hereafter referred to A. Adding new paragraph (b)(4)(iv). A. Revising paragraph (a)(1).
as the ‘‘National TAC’’), which shall be B. Adding new paragraph (b)(5)(ii)(C). B. In paragraph (a)(2), removing the
governed by the provisions of the C. Adding new paragraph (b)(5)(iii). word ‘‘and’’ at the end of the paragraph.
Federal Advisory Committee Act The additions read as follows: C. In paragraph (a)(3), removing the
(FACA) (Pub. L. 92–463, as amended; 5 punctuation ‘‘.’’ and adding in its place
§ 200.37 Notice of identification for
U.S.C. App.). improvement, corrective action, or
the punctuation ‘‘;’’ at the end of the
(b)(1) The members of the National restructuring. paragraph.
TAC must include persons who have D. Adding new paragraphs (a)(4) and
* * * * *
knowledge of and expertise in the (a)(5).
(b) * * *
design and implementation of E. Revising paragraph (b)(3)(ii).
(4) * * *
educational standards, assessments, and F. Revising paragraph (b)(3)(v).
(iv) The explanation of the available
accountability systems, including The additions and revisions read as
school choices must be made
experts with technical knowledge follows:
sufficiently in advance of, but no later
related to statistics and psychometrics. than 14 calendar days before, the start § 200.43 Restructuring.
(2) The National TAC shall be
of the school year so that parents have (a) * * *
composed of 10 to 15 members who
adequate time to exercise their choice (1) Makes fundamental reforms to
may meet as a whole or in committees,
option before the school year begins. improve student academic achievement
as the Secretary may determine.
(5) * * * in the school;
(3) The Secretary shall, through a
(ii) * * *
notice published in the Federal * * * * *
(C) An explanation of the benefits of
Register— (4) Is significantly more rigorous and
receiving supplemental educational
(i) Solicit nominations from the comprehensive than the corrective
services.
public for members of the National action that the LEA implemented in the
(iii) The annual notice of the
TAC; and school under § 200.42; and
(ii) Publish the list of members, once availability of supplemental educational
(5) Addresses the reasons why the
selected. services must be—
school was identified for restructuring
(4) The Secretary shall screen (A) Clear and concise; and
in order to enable the school to exit
nominees for membership on the (B) Clearly distinguishable from the
restructuring as soon as possible.
National TAC for potential conflicts of other information sent to parents under
(b) * * *
interest to prevent, to the extent this section.
(3) * * *
possible, such conflicts, or the * * * * * (ii) Replace all or most of the school
appearance thereof, in the National 10. Section 200.39 is amended by staff (which may include, but may not
TAC’s performance of its adding a new paragraph (c) to read as be limited to, replacing the principal)
responsibilities under this section. follows: who are relevant to the school’s failure
(c) The Secretary shall use the § 200.39 Responsibilities resulting from to make AYP.
National TAC to provide its expert identification for school improvement. * * * * *
opinions on matters that arise during (v) Any other major restructuring of a
* * * * *
the State Plan review process. school’s governance arrangement that
(c) The LEA must prominently
(d) The Secretary shall prescribe and makes fundamental reforms, such as
display on its Web site, as soon as it
publish the rules of procedure for the significant changes in the school’s staff
becomes available, the following
National TAC. (which may include, but may not be
information regarding the LEA’s
(Authority: 20 U.S.C. 6311(e)) implementation of the public school limited to, replacing the principal) and
8. Section 200.32 is amended by: choice and supplemental educational governance, in order to improve student
A. Redesignating paragraph (a)(1) as services requirements of the Act and academic achievement in the school and
paragraph (a)(1)(i). this part: that has substantial promise of enabling
B. Adding a new paragraph (a)(1)(ii). (1) Beginning with data from the the school to make AYP.
The addition reads as follows: 2007–2008 school year and for each * * * * *
12. Section 200.44 is amended by instructional program in increasing section in a given school year, the LEA
revising paragraph (a)(2) to read as student achievement; and must spend the unexpended amount in
follows: (iii) Evaluation results, if any, the subsequent school year on choice-
demonstrating that the instructional related transportation costs,
§ 200.44 Public school choice. program has improved student supplemental educational services, or
(a) * * * achievement. parent outreach and assistance
(2) The LEA must— * * * * * (consistent with paragraph (a)(2)(iii)(C))
(i) Offer this option not later than the (c) Standards for monitoring unless the SEA approves the LEA’s
first day of the school year following the approved providers. To monitor the request to spend a lesser amount based
school year in which the LEA quality and effectiveness of services on the SEA’s determination that the
administered the assessments that offered by an approved provider in LEA has demonstrated success in—
resulted in its identification of the order to inform the renewal or the (i) Partnering with community-based
school for improvement, corrective withdrawal of approval of the organizations or other groups to help
action, or restructuring; and provider— inform eligible students and their
(ii) Provide timely notice consistent (1) An SEA must examine, at a families of the opportunities to transfer
with § 200.37(b)(4). minimum, evidence that the provider’s or to receive supplemental educational
* * * * * instructional program— services;
13. Section 200.47 is amended by: (i) Is consistent with the instruction (ii) Ensuring that eligible students and
A. Revising the introductory text in provided and the content used by the their parents had a genuine opportunity
paragraph (a)(4). LEA and the SEA; to sign up to transfer or to obtain
B. In paragraph (a)(4)(i), removing the (ii) Addresses students’ individual supplemental educational services,
word ‘‘and’’ at the end of the paragraph. needs as described in students’ including by—
C. In paragraph (a)(4)(ii), removing the supplemental educational services plans (A) Providing timely, accurate notice
punctuation ‘‘.’’ and adding in its place under § 200.46(b)(2)(i); as required in §§ 200.36 and 200.37;
the words ‘‘; and’’ at the end of the (iii) Has contributed to increasing (B) Ensuring that sign-up forms for
paragraph. students’ academic proficiency; and supplemental educational services are
D. Adding a new paragraph (a)(4)(iii). (iv) Is aligned with the State’s distributed directly to all eligible
E. Revising paragraph (b)(2)(ii)(B). academic content and student academic students and their parents and are made
F. Redesignating paragraph achievement standards; and widely available and accessible through
(b)(2)(ii)(C) as paragraph (b)(2)(ii)(D). (2) The SEA must also consider broad means of dissemination, such as
G. Adding a new paragraph information, if any, regarding— the Internet, other media, and
(b)(2)(ii)(C). (i) Parent recommendations or results communications through public
H. Redesignating paragraph (b)(3) as from parent surveys regarding the agencies serving eligible students and
paragraph (b)(4). success of the provider’s instructional their families; and
I. Adding a new paragraph (b)(3). (C) Allowing eligible students to sign
program in increasing student
J. Adding a new paragraph (c). up to receive supplemental educational
achievement; and
The revisions and additions read as services throughout the school year; and
(ii) Evaluation results demonstrating
follows: (iii) Ensuring that eligible
that the instructional program has
supplemental educational services
§ 200.47 SEA responsibilities for improved student achievement.
providers are given access to school
supplemental educational services. * * * * * facilities, using a fair, open, and
(a) * * * 14. Section 200.48 is amended by: objective process, on the same basis and
(4) Consistent with paragraph (c) of A. Adding a new paragraph terms as are available to other groups
this section, develop, implement, and (a)(2)(iii)(C). that seek access to school facilities.
publicly report on standards and B. Adding a new paragraph (d). (2) The LEA must spend the
techniques for— The additions read as follows: unexpended funds under paragraph
* * * * * § 200.48 Funding for choice-related
(d)(1) of this section in addition to the
(iii) Monitoring LEAs’ transportation and supplemental funds it is required to spend under
implementation of the supplemental educational services. paragraph (a)(2) of this section in the
educational services requirements of the (a) * * * subsequent school year.
Act and this part. (2) * * * * * * * *
* * * * * (iii) * * * 15. Section 200.50 is amended by:
(b) * * * (C) The LEA may count in the amount A. Redesignating paragraph (d)(1) as
(2) * * * the LEA is required to spend under paragraph (d)(1)(i).
(ii) * * * paragraph (a) of this section its costs for B. Adding a new paragraph (d)(1)(ii).
(B) Are aligned with State academic outreach and assistance to parents The addition reads as follows:
content and student academic concerning their choice to transfer their § 200.50 SEA review of LEA progress.
achievement standards; child or to request supplemental * * * * *
(C) Are research-based; and educational services, up to an amount (d) * * *
* * * * * equal to 0.2 percent of its allocation (1)(i) * * *
(3) In approving a provider, the SEA under subpart 2 of part A of Title I of (ii) In identifying LEAs for
must consider, at a minimum— the ESEA. improvement, an SEA—
(i) Information from the provider on * * * * * (A) May base identification on

whether the provider has been removed (d) Unexpended funds for choice- whether an LEA did not make AYP
from any State’s approved provider list; related transportation and because it did not meet the annual
(ii) Parent recommendations or results supplemental educational services. (1) If measurable objectives for the same
from parent surveys, if any, regarding an LEA does not fully meet the subject or meet the same other academic
the success of the provider’s requirements in paragraph (a)(2) of this indicator for two consecutive years; but
(B) May not limit identification to B. Adding a new paragraph (d). either paragraph (b) or (c) of this
those LEAs that did not make AYP only C. Revising the authority citation. section.
because they did not meet the annual The revisions and addition read as * * * * *
measurable objectives for the same follows:
subject or meet the same other academic (d) To be a ‘‘highly qualified special
indicator for the same subgroup under § 200.56 Definition of ‘‘highly qualified education teacher,’’ a teacher must meet
§ 200.13(b)(7)(ii) for two consecutive teacher.’’ the requirements in 34 CFR 300.18.
years. Except as provided in paragraph (d), (Authority: 20 U.S.C. 1401(10); 7801(23))
* * * * * to be a ‘‘highly qualified teacher,’’ a
[FR Doc. E8–8700 Filed 4–22–08; 8:45 am]
16. Section 200.56 is amended by: teacher described in § 200.55 must meet
BILLING CODE 4000–01–P
A. Revising the introductory text. the requirements in paragraph (a) and

Department of Education: Wednesday, April 23, 2008

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without change, including personal

have their scores excluded from school-

an appropriate time to again have The Department recognizes that

TABLE 1.—GRADUATION RATE DISAGGREGATION REQUIREMENTS

Determining AYP Reporting Determining AYP Reporting

the ‘‘safe harbor’’ provision, the determines AYP based on student

Twenty-one percent notified parents at

15 U.S. Department of Education. (2008). EDFacts.

they are unable to offer public school

25 The EDFacts data from 2005–2006 indicate that

Total ....................... N/A ...................................................................... 52 N/A 27,905 837,150

Total ........................ .............................................................................. 13,987 N/A 831,350 20,783,750

TABLE 3.—CONSOLIDATED STATE APPLICATION (COLLECTION 1810–0576)

Total ........................ .............................................................................. 52 N/A 22,464 673,920

continues to read as follows:

(i) Information from the provider on * * * * * (A) May base identification on

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