[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3770 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3770

To amend the Elementary and Secondary Education Act of 1965 to improve 
                  elementary and secondary education.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 13, 2010

Mr. Feingold (for himself and Mr. Leahy) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To amend the Elementary and Secondary Education Act of 1965 to improve 
                  elementary and secondary education.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Flexibility and 
Innovation in Education Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. References.
Sec. 3. Findings.
Sec. 4. State and local flexibility in assessment and accountability 
                            models.
Sec. 5. Privacy protections for data systems.
Sec. 6. Improvements to the peer review process.
Sec. 7. Disaggregation of graduation rates.

SEC. 2. REFERENCES.

    Except as otherwise expressly provided, whenever in this Act an 
amendment or revision is expressed in terms of an amendment to, or 
revision of, a section or other provision, the reference shall be 
considered to be made to a section or other provision of the Elementary 
and Secondary Education Act of 1965 (20 U.S.C. 6301 et seq.).

SEC. 3. FINDINGS.

    Congress makes the following findings:
            (1) State and local governments bear the majority of the 
        cost of and responsibility for educating public elementary 
        school and secondary school students.
            (2) State and local governments often struggle to find 
        adequate funding to provide basic educational services.
            (3) The Federal Government has not provided its full share 
        of funding for numerous federally mandated elementary and 
        secondary education programs.
            (4) Underfunded Federal education mandates increase 
        financial pressures on States and local educational agencies.
            (5) States and local educational agencies are facing 
        increased costs when implementing the annual student academic 
        assessments required under section 1111(b)(3)(C)(vii) of the 
        Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        6311(b)(3)(C)(vii)).
            (6) Multiple measures of student academic achievement on 
        various methods of assessment provide a more complete picture 
        of a student's strengths and weaknesses than does a single 
        score on a high stakes standardized test.

SEC. 4. STATE AND LOCAL FLEXIBILITY IN ASSESSMENT AND ACCOUNTABILITY 
              MODELS.

    (a) Accountability Definition Changes.--Section 1111(b)(2)(A) (20 
U.S.C. 6311(b)(2)(A)) is amended--
            (1) in the matter preceding clause (i), by striking ``under 
        this paragraph.'' and inserting ``, as defined in the State 
        plan in accordance with this paragraph and which may be 
        measured in terms of adequate yearly growth in accordance with 
        subparagraph (L).''; and
            (2) in clause (iii), by striking ``sanctions'' and 
        inserting ``proven interventions''.
    (b) Adequate Yearly Progress Changes.--Section 1111(b)(2) (as 
amended by subsection (a)) (20 U.S.C. 6311(b)(2)) is further amended--
            (1) in subparagraph (B)--
                    (A) by inserting ``and, other academic indicators, 
                as selected by the State in accordance with 
                subparagraph (C)(vii)'' after ``assessments described 
                in paragraph (3)''; and
                    (B) by inserting ``(which may be measured in terms 
                of adequate yearly growth in accordance with 
                subparagraph (L))'' after ``adequate yearly progress''; 
                and
            (2) in subparagraph (D)--
                    (A) in clause (i), by striking ``and'' after the 
                semicolon;
                    (B) by striking clause (ii) and inserting the 
                following:
                            ``(ii) in order to provide a more accurate 
                        determination of school improvement and subject 
                        to subparagraph (C)(iv) and the approval of the 
                        Secretary, may elect to use other academic 
                        indicators described in clauses (vi) and (vii) 
                        of subparagraph (C) (except for locally 
                        administered assessments) to determine which 
                        schools and local educational agencies are 
                        identified for school improvement, corrective 
                        action, or restructuring under section 1116; 
                        and''; and
                    (C) by adding at the end the following:
                            ``(iii) shall ensure that the academic 
                        assessments described in paragraph (3) 
                        represent not less than 50 percent of the 
                        factors used to determine how academic 
                        achievement is measured for purposes of 
                        determining adequate yearly progress.''.
    (c) Adequate Yearly Growth.--Section 1111(b)(2) (20 U.S.C. 
6311(b)(2)) is further amended--
            (1) in subparagraph (F), by inserting ``or, in the case of 
        a State measuring adequate yearly progress in terms of adequate 
        yearly growth in accordance with subparagraph (L), all students 
        in each group described in subparagraph (C)(v) will meet the 
        State's definition of adequate yearly growth'' before the 
        period at the end; and
            (2) by adding at the end the following:
                    ``(L) Adequate yearly growth.--Notwithstanding any 
                other provision of this Act, a State may elect in the 
                State plan to measure adequate yearly progress in terms 
                of adequate yearly growth if the State has developed a 
                definition of adequate yearly growth for the students 
                in the State that has been approved by the Secretary. 
                In the case of a State that makes such an election and 
                that has obtained approval of the State's definition of 
                adequate yearly growth, all requirements of this 
                paragraph with respect to adequate yearly progress 
                shall apply to such State, except that--
                            ``(i) Statewide annual measurable 
                        objectives shall, in lieu of the requirements 
                        of clauses (iii) and (iv) of subparagraph (G)--
                                    ``(I) identify a minimum percentage 
                                of students who are required to meet a 
                                certain level of adequate yearly 
                                growth, as defined by the State; and
                                    ``(II) ensure that all students 
                                will meet the State's definition of 
                                adequate yearly growth within the 
                                State's timeline under subparagraph 
                                (F); and
                            ``(ii) the exception described in 
                        subparagraph (I)(i) regarding groups of 
                        students that do not meet the objectives shall 
                        not apply to schools in such State.''.
    (d) State Flexibility To Design Growth Models.--Section 1111(b)(2) 
(20 U.S.C. 6311(b)(2)) is further amended by adding at the end the 
following:
                    ``(M) State flexibility to design growth models.--
                            ``(i) In general.--Notwithstanding any 
                        other provisions of this section, in carrying 
                        out this section a State may choose to develop 
                        and use a growth model accountability system 
                        for the purposes of determining adequate yearly 
                        progress by measuring adequate yearly growth in 
                        accordance with subparagraph (L).
                            ``(ii) Requirements for growth models.--A 
                        growth model accountability system referred to 
                        in clause (i) shall meet the following 
                        requirements:
                                    ``(I) Valid, reliable, and accurate 
                                measures.--The growth model uses valid, 
                                reliable, and accurate measures.
                                    ``(II) Sufficient technical quality 
                                and capacity.--The growth model has 
                                sufficient technical quality and 
                                technical capacity to ensure the growth 
                                model can function fairly and 
                                accurately for each student.
                                    ``(III) Statewide privacy-protected 
                                data system.--The growth model has a 
                                statewide privacy-protected data system 
                                capable of tracking individual 
                                students' growth.
                                    ``(IV) Annual assessments.--The 
                                State annually assesses students in 
                                grades 3 through 8 and once in grades 9 
                                through 12 and such assessments produce 
                                reliable results in each grade and from 
                                year to year.
                                    ``(V) Performance measures or 
                                growth targets.--The State may set 
                                performance measures or growth targets 
                                based on a student's current academic 
                                level, but may not set performance 
                                measures or growth targets for students 
                                on the basis of the student's 
                                membership in 1 of the groups listed in 
                                subparagraph (C)(v)(II).
                                    ``(VI) Ability to evaluate.--The 
                                State is able to evaluate student gains 
                                or progress in, at a minimum, 
                                mathematics and reading or language 
                                arts.
                            ``(iii) Limitation.--Paragraph (3)(E) shall 
                        not apply to a State that chooses to use a 
                        growth model accountability system under this 
                        subparagraph.''.
    (e) Multiple Measures of Assessment.--Section 1111(b)(3) is further 
amended--
            (1) in subparagraph (C)--
                    (A) in clause (xiv), by striking ``and'' after the 
                semicolon;
                    (B) in clause (xv), by striking the period and 
                inserting ``; and''; and
                    (C) by adding at the end the following:
                            ``(xvi) if the State chooses, include other 
                        valid and reliable assessments, including 
                        performance assessments, technology-based 
                        assessments, thorough course assessments, 
                        adaptive assessments, and appropriate 
                        assessments for students with disabilities and 
                        English language learners, that--
                                    ``(I) are aligned with the State's 
                                academic content standards and student 
                                academic achievement standards;
                                    ``(II) are capable of measuring 
                                student academic growth;
                                    ``(III) are fair, valid, reliable, 
                                and capable of producing comparable and 
                                disaggregated results for all students, 
                                including all student subgroups 
                                described in section 
                                1111(b)(2)(C)(v)(II);
                                    ``(IV) are able to measure 
                                readiness for postsecondary education 
                                or the workplace;
                                    ``(V) use scoring mechanisms that 
                                enable the assessments to be scored in 
                                such a way as to produce fair, valid, 
                                reliable, and comparable results for 
                                all students;
                                    ``(VI) have been approved through 
                                the peer-review process described in 
                                subsection (e);
                                    ``(VII) measure higher-order 
                                thinking skills;
                                    ``(VIII) produce evidence about 
                                student learning and achievement in a 
                                timely manner; and
                                    ``(IX) provide teachers with 
                                meaningful feedback so that the 
                                teachers can modify, improve, and 
                                target instructional strategies based 
                                on individual student need.''.
    (f) State Flexibility To Test in Grade Spans.--Section 1111(b)(3) 
(20 U.S.C. 6311(b)(3)) is further amended by adding at the end the 
following:
                    ``(E) State flexibility to test in grade spans.--
                            ``(i) In general.--Notwithstanding clauses 
                        (v) and (vii) of subparagraph (C) or any other 
                        provision in this Act and subject to clause 
                        (ii), a State may elect to administer the 
                        assessments required under this paragraph not 
                        less than--
                                    ``(I) once during grades 3 through 
                                5;
                                    ``(II) once during grades 6 through 
                                8; and
                                    ``(III) once during grades 9 
                                through 12.
                            ``(ii) Requirements.--If a State exercises 
                        the flexibility regarding administering 
                        assessments provided under clause (i), the 
                        State shall ensure that the State has statewide 
                        systems in place to monitor and report the 
                        academic progress and growth of students in 
                        core academic subjects in grades for which the 
                        State is not administering the assessments 
                        under this paragraph.''.

SEC. 5. PRIVACY PROTECTIONS FOR DATA SYSTEMS.

    Subpart 1 of part A of title I of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 6311 et seq.) is amended by adding at 
the end the following:

``SEC. 1120C. PRIVACY PROTECTIONS FOR DATA SYSTEMS.

    ``(a) In General.--Each State receiving a grant under this part 
shall implement measures to--
            ``(1) limit the use of information in a statewide education 
        data system by a State educational agency, a local educational 
        agency, or an institution of higher education to the purposes 
        and functions for such information set forth in Federal or 
        State education law, and allow access to the information in the 
        statewide education data system only to those State or local 
        employees or agents, and only on such terms, as may be 
        necessary to fulfill those purposes and functions;
            ``(2) prohibit the disclosure of student-level information 
        in the data system to any other person, agency, institution, or 
        entity, except that States may allow the disclosures permitted 
        under section 444 of the General Education Provisions Act 
        (commonly referred to as the `Family Educational Rights and 
        Privacy Act of 1974') in accordance with the limitations set 
        forth in this section and any additional limitations set forth 
        in State law;
            ``(3) require any person, agency, institution, or entity to 
        whom disclosure of information in the data system is authorized 
        under section 444 of such Act to sign a data use agreement 
        prior to disclosure, that--
                    ``(A) prohibits the party from further disclosing 
                the information;
                    ``(B) prohibits the party from using the 
                information for any purpose other than the purpose 
                specified in the agreement; and
                    ``(C) requires the party to destroy the information 
                when the purpose for which the disclosure was made is 
                accomplished;
            ``(4) if consistent with the purpose of the disclosure, 
        remove personally identifying information and unique 
        identifiers before disclosing student-level information in the 
        data system;
            ``(5) in addition to meeting the accounting requirements 
        under section 444 of such Act, maintain a record of the date of 
        each disclosure of information in the data system, a detailed 
        description of the information disclosed, and the name and 
        address of the person, agency, institution, or entity to whom 
        the disclosure was made, which accounting shall be made 
        available on request to parents of any student whose 
        information has been disclosed, or to the student if the 
        student has reached the age of 18 or is enrolled in a 
        postsecondary educational institution;
            ``(6) ensure that any disclosure of aggregate data in the 
        data system is in a form that does not permit the 
        identification of individual students, and that any unique 
        identifiers in the data system are removed prior to disclosure 
        of aggregate data;
            ``(7) maintain adequate security measures to ensure the 
        confidentiality and integrity of the data system; and
            ``(8) ensure adequate enforcement of the requirements of 
        this section.
    ``(b) Use of Unique Identifiers.--
            ``(1) Governmental use of unique identifiers.--It shall be 
        unlawful for any Federal agency, any employee of any Federal 
        agency, any State or local agency in a State that receives 
        funds under this Act, or any employee of a State or local 
        agency in a State that receives funds under this Act, to use 
        unique identifiers employed in a statewide education data 
        system for any purpose other than as authorized by Federal or 
        State education law, or to deny any individual any right, 
        benefit, or privilege provided by law because of such 
        individual's refusal to disclose the individual's unique 
        identifier.
            ``(2) Regulations.--Not later than 1 year after the date of 
        enactment of the Flexibility and Innovation in Education Act, 
        the Secretary shall promulgate regulations governing the use of 
        unique identifiers employed in statewide education data 
        systems, with the goal of safeguarding individual privacy. The 
        regulations may require States seeking grants under this part 
        to have in place measures to limit the use of unique 
        identifiers by nongovernmental parties to the extent 
        practicable, consistent with the uses of the information 
        authorized in Federal or State education law.
    ``(c) Formula Grants for Privacy Protected Data Systems.--
            ``(1) Grants authorized.--From amounts appropriated under 
        paragraph (4), the Secretary is authorized to make grants, from 
        allotments under paragraph (2), to States receiving grants 
        under section 1121, for the purposes of carrying out the 
        requirements of this section related to privacy protections and 
        unique identifiers.
            ``(2) Allotment formula.--The Secretary shall establish a 
        formula for the allotment of grants under this subsection that 
        ensures that each State receives an equitable share of the 
        amount allotted based upon relevant State factors, including 
        student population size.
            ``(3) Definition of state.--In this subsection the term 
        `State' means each of the several States of the United States, 
        the District of Columbia, and the Commonwealth of Puerto Rico.
            ``(4) Authorization of appropriations.--From the amounts 
        appropriated to and available for Program Administration within 
        the Departmental Management account in the Department of 
        Education for each of fiscal years 2011 through 2015, there are 
        authorized to be appropriated to carry out this subsection 
        $1,000,000 for each such fiscal year.''.

SEC. 6. IMPROVEMENTS TO THE PEER REVIEW PROCESS.

    Section 1111(e)(1) (20 U.S.C. 6311(e)(1)) is further amended--
            (1) by striking subparagraph (B);
            (2) by redesignating subparagraphs (C) through (F) as 
        subparagraphs (F) through (I), respectively;
            (3) by inserting after subparagraph (A) the following:
                    ``(B) develop, and update, a list of individuals 
                the Secretary has determined to be eligible under 
                subparagraph (C)(i) to be appointed to the peer review 
                process under this subsection, which list shall include 
                eligible individuals recommended by State educational 
                agencies, local educational agencies, and professional 
                educational associations;
                    ``(C) using the list described in subparagraph (B), 
                appoint individuals to the peer review process, 
                ensuring that--
                            ``(i) the individuals appointed to the peer 
                        review process are--
                                    ``(I) representative of parents, 
                                teachers, State educational agencies, 
                                local educational agencies, and 
                                professional education associations; 
                                and
                                    ``(II) skilled practitioners or 
                                education researchers with knowledge of 
                                fair, valid, and reliable assessment 
                                design, including individuals with 
                                expertise in 1 or more of the 
                                following:
                                            ``(aa) developing 
                                        educational standards;
                                            ``(bb) developing valid and 
                                        reliable assessments for all 
                                        students, including alternative 
                                        assessments for students with 
                                        disabilities and English 
                                        language learners;
                                            ``(cc) creating valid 
                                        accountability models;
                                            ``(dd) accurately assessing 
                                        the needs of low-performing 
                                        schools; or
                                            ``(ee) adequately measuring 
                                        the other educational needs of 
                                        students so that issues 
                                        relating to the education of 
                                        the whole child are addressed; 
                                        and
                            ``(ii) each peer review panel used in the 
                        process contains--
                                    ``(I) not less than 1 
                                representative recommended for 
                                inclusion on the list described in 
                                subparagraph (B) by State educational 
                                agencies;
                                    ``(II) not less than 1 
                                representative recommended for the list 
                                by local educational agencies;
                                    ``(III) not less than 1 
                                representative recommended for the list 
                                by professional educational 
                                associations;
                                    ``(IV) not less than 1 
                                representative recommended for the list 
                                by the Secretary; and
                                    ``(V) not less than 1 
                                representative who works in a school;
                    ``(D) ensure that there is consistency from State 
                to State with respect to all decisions reached by the 
                peer review panels;
                    ``(E) ensure that States are given the opportunity 
                to receive timely feedback from peer review teams, in 
                person or via electronic communication, and directly 
                interact with peer review panels on issues that need 
                clarification during the peer review process;'';
            (4) in subparagraph (H)(iii) (as redesignated by paragraph 
        (2)), by striking ``and'' after the semicolon;
            (5) in subparagraph (I) (as redesignated by paragraph (2)), 
        by striking the period and inserting a semicolon; and
            (6) by adding at the end the following:
                    ``(J) post all approval and denial decisions 
                regarding the State plans and final State plans, State 
                plan amendments, and waiver decisions for each State 
                plan, on a publicly available website in an easily 
                identifiable location, and provide written notification 
                to States of all such decisions within 3 business days 
                of such decisions; and
                    ``(K) direct the Inspector General of the 
                Department to review the final determinations reached 
                by the Secretary under this subsection for consistent 
                decisionmaking through the peer review process across 
                all States and report the findings to Congress once 
                every 2 years.''.

SEC. 7. DISAGGREGATION OF GRADUATION RATES.

    Section 1111(h)(1)(C)(vi) (20 U.S.C. 6311(h)(1)(C)) is amended by 
inserting before the semicolon the following: ``, disaggregated by the 
student subgroups described in subsection (b)(2)(C)(v)(II).''.
                                 <all>