[Congressional Record Volume 150, Number 84 (Thursday, June 17, 2004)]
[Senate]
[Pages S7010-S7012]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KENNEDY (for himself and Mr. Edwards):
  S. 2542. A bill to provide for review of determinations on whether 
schools and local educational agencies made adequate yearly progress 
for the 2002-2003 school year taking into consideration subsequent 
regulations and guidance applicable to those determinations, and for 
other purposes; to the Committee on Health, Education, Labor, and 
Pensions.
  Mr. KENNEDY. Mr. President, it's a privilege to join my colleagues in 
introducing the No Child Left Behind Fairness Act. Our goal is to 
achieve accurate and fair determinations of accountability in current 
law. The bill does not change the accountability provisions of the law, 
but it does require the Department of Education to play by its own 
rules in considering the progress of each school.

[[Page S7011]]

  The accountability provisions in the No Child Left Behind Act are 
critical to accomplishing the goal of closing the achievement gap. 
Before its enactment, many communities ignored the gaps between some 
children and others in school, even though some groups of students were 
consistently falling behind. Communities are now beginning to provide 
the help those schools need to meet higher standards for all students, 
such as better teacher training, better curriculums, and better support 
and attention.
  It makes sense to identify schools as needing improvement. There's 
nothing wrong with shining a light on areas that need improvement--even 
in the best schools. That doesn't mean they are failures.
  But for the accountability provisions in the law to be useful, they 
must be accurate. We need accurate determinations of whether schools 
are making progress.
  A full two years after passage of the No Child Left Behind Act, the 
Department of Education finally issued the regulations and guidance 
that schools need to accurately calculate accountability under the law. 
Those rules were a step in the right direction. They specifically 
addressed the achievement of children with disabilities and limited 
English proficient children.
  The Department's rules were effective immediately, but many schools 
had already made their evaluations for the year as best they could. 
They shouldn't have had to make these assessments and calculations 
without adequate guidance. They certainly shouldn't be penalized for 
the Department's delay in issuing this guidance.
  So far, 28,000 schools have been identified by States as failing to 
make adequate yearly progress. Many of those schools were identified in 
the 2002-2003 school year, before the new rule were released. A number 
of schools and districts identified as failing to make adequate yearly 
progress might have succeeded if the new rules had been in effect from 
the start. The Department's delay in issuing adequate rules and 
guidance has created unnecessary confusion, caused a potential 
mislabeling of schools, and misdirected resources from the schools and 
students who actually need them.
  Some States have asked the Department of Education for permission to 
review their scores from last year under the new rules, and submit a 
more accurate calculation of accountability. Many of us in Congress 
have urged the Secretary of Education to apply the new regulations 
retroactively, so that States, school districts, and schools can review 
last year's data
  On accountability and correct it if necessary. The Secretary of 
Education has refused, stating that he lacks the authority to do so.
  This bill provides that authority. It enables the new regulations to 
be applied retroactively, so that schools will be judged on the same 
standards for the past year as they will be in the future, not by 
different criteria for different years.
  Schools across the country are struggling to comply with the 
requirements of the No Child Left Behind Act. If we want schools to be 
held accountable, we need to make the process fair. I urge my 
colleagues to pass this legislation s soon as possible. Schools are 
waiting for our response. They don't deserve an unfair burden in 
complying with the act and improving their schools.
  I ask unanimous consent that the text of this bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2542

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``No Child Left Behind 
     Fairness Act of 2004''.

     SEC. 2. REVIEW OF ADEQUATE YEARLY PROGRESS DETERMINATIONS FOR 
                   SCHOOLS FOR THE 2002-2003 SCHOOL YEAR.

       (a) In General.--The Secretary shall require each local 
     educational agency to provide each school served by the 
     agency with an opportunity to request a review of a 
     determination by the agency that the school did not make 
     adequate yearly progress for the 2002-2003 school year.
       (b) Final Determination.--Not later than 30 days after 
     receipt of a request by a school for a review under this 
     section, a local educational agency shall issue and make 
     publicly available a final determination on whether the 
     school made adequate yearly progress for the 2002-2003 school 
     year.
       (c) Evidence.--In conducting a review under this section, a 
     local educational agency shall--
       (1) allow the principal of the school involved to submit 
     evidence on whether the school made adequate yearly progress 
     for the 2002-2003 school year; and
       (2) consider that evidence before making a final 
     determination under subsection (b).
       (d) Standard of Review.--In conducting a review under this 
     section, a local educational agency shall revise, consistent 
     with the applicable State plan under section 1111 of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311), the local educational agency's original determination 
     that a school did not make adequate yearly progress for the 
     2002-2003 school year if the agency finds that the school 
     made such progress taking into consideration--
       (1) the amendments made to part 200 of title 34 of the Code 
     of Federal Regulations on December 9, 2003 (68 Fed. Reg. 
     68698) (relating to accountability for the academic 
     achievement of students with the most significant cognitive 
     disabilities); or
       (2) any regulation or guidance that, subsequent to the date 
     of such original determination, was issued by the Secretary 
     relating to--
       (A) the assessment of limited English proficient children;
       (B) the inclusion of limited English proficient children as 
     part of the subgroup described in section 
     1111(b)(2)(C)(v)(II)(dd) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6311(b)(2)(C)(v)(II)(dd)) 
     after such children have obtained English proficiency; or
       (C) any requirement under section 1111(b)(2)(I)(ii) of the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(2)(I)(ii)).
       (e) Effect of Revised Determination.--
       (1) In general.--If pursuant to a review under this section 
     a local educational agency determines that a school made 
     adequate yearly progress for the 2002-2003 school year, upon 
     such determination--
       (A) any action by the Secretary, the State educational 
     agency, or the local educational agency that was taken 
     because of a prior determination that the school did not make 
     such progress shall be terminated; and
       (B) any obligations or actions required of the local 
     educational agency or the school because of the prior 
     determination shall cease to be required.
       (2) Exceptions.--Notwithstanding paragraph (1), a 
     determination under this section shall not affect any 
     obligation or action required of a local educational agency 
     or school under the following:
       (A) Section 1116(b)(13) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6316(b)(13)) (requiring a 
     local educational agency to continue to permit a child who 
     transferred to another school under such section to remain in 
     that school until completion of the highest grade in the 
     school).
       (B) Section 1116(e)(8) of the Elementary and Secondary 
     Education Act of 1965 (20 U.S.C. 6316(e)(8)) (requiring a 
     local educational agency to continue to provide supplemental 
     educational services under such section until the end of the 
     school year).
       (3) Subsequent determinations.--In determining whether a 
     school is subject to school improvement, corrective action, 
     or restructuring as a result of not making adequate yearly 
     progress, the Secretary, a State educational agency, or a 
     local educational agency may not take into account a 
     determination that the school did not make adequate yearly 
     progress for the 2002-2003 school year if such determination 
     was revised under this section and the school received a 
     final determination of having made adequate yearly progress 
     for the 2002-2003 school year.
       (f) Notification.--The Secretary--
       (1) shall require each State educational agency to notify 
     each school served by the agency of the school's ability to 
     request a review under this section; and
       (2) not later than 30 days after the date of the enactment 
     of this section, shall notify the public by means of the 
     Department of Education's website of the review process 
     established under this section.

     SEC. 3. REVIEW OF ADEQUATE YEARLY PROGRESS DETERMINATIONS FOR 
                   LOCAL EDUCATIONAL AGENCIES FOR THE 2002-2003 
                   SCHOOL YEAR.

       (a) In General.--The Secretary shall require each State 
     educational agency to provide each local educational agency 
     in the State with an opportunity to request a review of a 
     determination by the State educational agency that the local 
     educational agency did not make adequate yearly progress for 
     the 2002-2003 school year.
       (b) Application of Certain Provisions.--Except as 
     inconsistent with, or inapplicable to, this section, the 
     provisions of section 2 shall apply to review by a State 
     educational agency of a determination described in subsection 
     (a) in the same manner and to the same extent as such 
     provisions apply to review by a local educational agency of a 
     determination described in section 2(a).

     SEC. 4. DEFINITIONS.

       In this Act:
       (1) The term ``adequate yearly progress'' has the meaning 
     given to that term in section 1111(b)(2)(C) of the Elementary 
     and Secondary Education Act of 1965 (20 U.S.C. 
     6311(b)(2)(C)).
       (2) The term ``local educational agency'' means a local 
     educational agency (as that

[[Page S7012]]

     term is defined in section 9101 of the Elementary and 
     Secondary Education Act of 1965 (20 U.S.C. 7801)) receiving 
     funds under part A of title I of such Act (20 U.S.C. 6311 et 
     seq.).
       (3) The term ``Secretary'' means the Secretary of 
     Education.
       (4) The term ``school'' means an elementary school or a 
     secondary school (as those terms are defined in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801)) served under part A of title I of such Act (20 
     U.S.C. 6311 et seq.).
       (5) The term ``State educational agency'' means a State 
     educational agency (as that term is defined in section 9101 
     of the Elementary and Secondary Education Act of 1965 (20 
     U.S.C. 7801)) receiving funds under part A of title I of such 
     Act (20 U.S.C. 6311 et seq.).
                                 ______