From: "Davis-Oliva, Patricia (DOJ)" <Patricia.Davis-Oliva@state.de.

us>
To: "Black, Edward K (DOJ)" <edward.black@state.de.us>
Subject: FW: Response to Rep. Williams re Priority Schools
Date: October 27, 2014 at 5:01:00 PM EDT

Patricia Davis Oliva
Patricia Davis Oliva
Deputy Attorney General
102 W. Water Street
Dover, DE 19904
(302) 257-3233 Phone
(302) 739-7652 Fax
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From: Reardon, Allison E (DOJ)
Sent: Wednesday, October 01, 2014 4:44 PM
To: Davis-Oliva, Patricia (DOJ)
Subject: RE: Response to Rep. Williams re Priority Schools

Yes. I understand that this was in the news today. Please
send me a copy of the final e-mail and copy Joe and Tim
also. Thanks.
From: Davis-Oliva, Patricia (DOJ)
Sent: Wednesday, October 01, 2014 4:14 PM
To: Reardon, Allison E (DOJ)

Subject: Response to Rep. Williams re Priority Schools

Allison: Just got off the phone with DOE. They are OK
with this as written. They had two minor edit
suggestions and I made both. I also made your
salutation suggestion. Does it look OK to send? Thanks,
Patty
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; 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.
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 very much for the opportunity to respond to
your inquiry.
Very truly yours,
Patricia Davis Oliva

Patricia Davis Oliva
Patricia Davis Oliva
Deputy Attorney General
102 W. Water Street
Dover, DE 19904
(302) 257-3233 Phone
(302) 739-7652 Fax
Confidentiality Notice: This electronic message and any
attachment(s) are confidential and may be subject to the
attorney/client privilege and/or work product immunity.
This e-mail is only for the use of the intended
recipient(s). If you have received this e-mail in error,
please notify the sender immediately by replying to this

e-mail, then delete this message and any attachment(s)
from your system. Any unintended transmission
expressly shall not waive the attorney/client or any other
privilege.