Representative Williams: Thank you for your e-mail dated September 23, 2014.

In preparing
this response to your questions, I reviewed documents published by the U.S. Department of
Education including “ESEA Flexibility” updated June 7, 2012, the “ESEA Flexibility Frequently
Asked Questions” revised August 3, 2012, and the Addendum to those FAQs dated March 5,
2013. I also reviewed documents available on DDOE’s ESEA Flexibility web page, including
the Delaware Department of Education’s “Flexibility, Amendment, and Extension Requests.”
As you point out, the Delaware Department of Education (DDOE) enacted, through its
accountability regulation (14 Del. Admin. C. § 103), a program to assist low performing schools.
That regulation includes a definition for a “persistently low-achieving schools” and, further,
includes provisions for such things as deeming a school or school district “under improvement,”
setting forth the accountability phases 1 and 2 for a school or school district so deemed; includes
possible identification categories of “Corrective Action Phase 1,” “Corrective Action Phase 2,”
“Restructuring,” and “Partnership Zone School.” Schools within these categories were,
dependent on the particular category, involved in such things as developing and implementing a
“School Success Plan;” developing and implementing a “Corrective Action Plan;” developing
and implementing a “Restructuring Plan;” or operating under a Memorandum of Understanding
with the DDOE. As explained herein, the applicability of these regulations, however, was
preempted by the U.S. Department of Education when the State of Delaware’s ESEA Flexibility
Request was granted. As you know, this preemption was recognized by the Delaware General
Assembly in the epilogue language included in the budget bills passed for Fiscal Years 2013,
2014, and 2015.
Beginning in September 2011, the U.S. Department of Education (USED) offered states an
opportunity to request flexibility from some of the specific requirements of the No Child Left
Behind Act (NCLB) in exchange for rigorous and comprehensive state-developed plans designed
to improve the quality of instruction. A request for flexibility was required to address four
principles: (1) College and Career-Ready Expectations for All Students; (2) State-Developed
Differentiated Recognition, Accountability and Support; (3) Supporting Effective Instruction and
Leadership; and (4) Reducing Duplication and Unnecessary Burden. The USED defined many
of the terms the states were required to use when requesting ESEA flexibility, including “Focus
School,” “Priority School” and “Turnaround Principles.”
DDOE submitted an ESEA Flexibility Request Application that was approved by USED in May
of 2012, and an amendment to its request that was approved by USED in October 2012. On
January 28, 2014, DDOE submitted an ESEA Flexibility Extension request, and, during February
and March of 2014, DDOE drafted and shared a proposed ESEA Flexibility Amendment request
with stakeholders through various means including: posting a draft and notice on its website;
publicizing notice in the newspaper; noticing and holding informational phone conferences and
webinars; addressing the request in the weekly memo sent to the Chief School Officers and
Charters and the semi-monthly memo sent to the Principals; discussing it at meetings with the
Chiefs and Charters and at the Delaware Education Support System Advisory Council meetings;
and by soliciting, and receiving, comments from these stakeholders and others. After
consideration of the feedback received from these stakeholders, on March 27, 2014, DDOE
submitted its proposed ESEA Flexibility Amendment to USED.

By letter dated July 31, 2014, USED notified DDOE that its request for a one-year ESEA
Flexibility Extension was approved, and that DDOE could continue to implement ESEA
Flexibility through the end of the 2014-15 school year. That letter also notified DDOE that
USED approved DDOE’s proposed amendments to Principles 1 and 2 of the DDOE’s ESEA
Flexibility request. As a result, schools are no longer identified under the monikers of the
DDOE’s regulation pertaining to low performing schools—e.g., “persistently low-achieving
schools,” “under improvement,” or “Corrective Action,”—and the DDOE is now required to
utilize the identification process—i.e., the terminology, definitions, and methodology—of the
Elementary and Secondary Education Act of 1965, as amended (ESEA Flexibility)—e.g.,
“Priority Schools.”
On or about August 1, 2014, Delaware schools’ accountability ratings were published. Using the
data and the methodology most recently approved by the USED in its July 31, 2014 letter,
DDOE identified potential Priority Schools for the 2014-2015 school year. As you know, those
schools were clustered in two of Delaware’s 19 school districts. The Secretary of Education met
with the Superintendents of those two districts during the week of August 18, 2014 to provide
preliminary information about the identified schools. The final selection of six Priority Schools
was made public on September 4, 2014. At least 4 of these 6 identified schools had, in recent
years, been either Priority or Focus schools, but failed to make sufficient gains to meet exit
criteria from those statuses.
Your specific questions, to my reading, all inquire as to the DDOE’s compliance with its
program to assist low performing schools set forth in the DDOE accountability regulation, 14
Del. Admin. C. § 103. As outlined above, this regulation is no longer applicable to the extent it
conflicts with the DDOE ESEA Flexibility request, as amended, that was approved by the
USED, pursuant to the epilogue language enacted by the Delaware General Assembly.
Thank you,
Patricia Davis Oliva