[Federal Register Volume 59, Number 230 (Thursday, December 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29330]


[[Page Unknown]]

[Federal Register: December 1, 1994]


_______________________________________________________________________

Part X





Department of the Interior





_______________________________________________________________________



Bureau of Indian Affairs



_______________________________________________________________________



25 CFR Part 36




Minimum Academic Standards for the Basic Education of Indian Children 
and National Criteria for Dormitory Situations; Final Rule
DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 36

RIN 1076-AC32

 
Minimum Academic Standards for the Basic Education of Indian 
Children and National Criteria for Dormitory Situations

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes requirements for children enrolled in 
Bureau-funded schools, provides for the inclusion of Native language 
and culture into the curriculum, provides schools the opportunity to 
develop mission and philosophy statements, offers students alternative 
programs for high school completion, provides for new testing 
requirements, and authorizes tribal governing bodies or local school 
boards to waive or revise dormitory standards and to establish a new 
timeline for submission of waivers.

EFFECTIVE DATE: December 1, 1994.

FOR FURTHER INFORMATION CONTACT: Bette Haskins, (202) 219-3817, Office 
of Indian Education Programs, 1849 C St. NW, MS 3512-MIB, Washington, 
DC 20240.

SUPPLEMENTARY INFORMATION: The BIA is modifying and making additions to 
existing regulations to incorporate various tribal recommendations, 
statutory requirements, and innovative changes.
    The BIA Office of Indian Education Programs (OIEP) held tribal 
consultation meetings, as required by 25 U.S.C. 2010(b)(1), to provide 
Indian tribes, school boards, parents, Indian organizations, and other 
interested parties an opportunity to comment on potential changes or 
issues being considered by the BIA regarding Indian education programs. 
These meetings were held during January 1991, July 1991, January 1992, 
and July 1992 in Anchorage, AK; Phoenix, AZ; Sacramento, CA; 
Minneapolis, MN; Billings, MT; Albuquerque, NM; Gallup, NM; Oklahoma 
City, OK; Portland, OR; Aberdeen, SD; and Nashville, TN. The results of 
these hearings were used in developing the proposed rule.
    The President's Goals 2000 school reform plan calls for local 
decision-making regarding the means for improving educational 
achievement. Comments made during these consultation meetings fully 
supported allowing BIA-funded schools to develop their own unique 
mission and philosophy statements.
    Public Law 98-511, section 502, requires that standards established 
under Section 1121 of Public Law 95-561 include a requirement for 
immunization against childhood diseases. Comments made during the 
consultation meetings regarding immunization of all students enrolled 
in BIA-funded schools indicated support of the requirement with the 
following concerns: (1) The need to include language that the Indian 
Health Service would immunize all students enrolled in BIA-funded 
schools; and (2) the need to reconsider imposing state standards on 
sovereign tribal entities.
    Title I of Public Law 101-477, the Native American Languages Act, 
states, ``It is the policy of the United States to preserve, protect, 
and promote the rights and freedom of Native Americans to use, 
practice, and develop Native American Languages.'' The President's 
Goals 2000 plan recognizes the need for students to be competent in 
more than one language.
    The final audit report by the Office of the Inspector General, 
``Implementation of the Education Amendments of 1978, Bureau of Indian 
Affairs,'' dated July 5, 1991, asserts that the Amendments require the 
BIA to establish standards for the basic education of Indian children 
that would account for factors such as academic needs, local cultural 
differences, type and level of language skills, and geographical 
isolation.
    Tribal comments fully supported the inclusion of native language 
and culture in the curriculum, but underlined the need for funding to 
implement the requirement and sought clarification of the requirement. 
Only two tribal comments opposed the requirement, stating that: (1) It 
was not the function of the local school and (2) it would be difficult 
to implement the requirement due to the languages differing from 
village to village.
    The President's Goals 2000 plan also calls for ``breaking the 
mold,'' radically altering the customary modes of teaching and learning 
and redesigning human relationships and organizational structure of 
schools to produce student learning. Tribal comments regarding 
alternative programs supported the requirement, but also underlined the 
need for funding and clarification of the requirement.
    A report of the National Commission on Testing and Public Policy 
states, ``The fundamental recommendation of the Commission is that 
current testing policies and practices be substantially restructured to 
help people develop their talents and become constructive citizens and 
to help institutions become more productive, accountable and just.'' 
The President's Goals 2000 plan calls for the establishment of national 
standards to measure student performance, which will foster good 
teaching and learning as well as monitor student progress. The majority 
of the comments from the tribal meetings were in support of new testing 
requirements that are more in line with the recommendation of the 
National Commission on Testing and Public Policy and the President's 
Goals 2000 plan. The major concerns regarding the new testing 
requirements were related to training of staff, funding, and the 
benefits to the students of testing in general. Those commenters 
opposing the requirements were in opposition to any testing in general.
    Public Law 100-297, section 5105, provides authority to waive 
dormitory criteria (standards) established under section 1122 of Public 
Law 95-561 in the same manner that academic standards may be waived. In 
regard to waivers of dormitory criteria, tribal comments indicated 
support for the regulatory change. There was, however, concern that the 
regulations would make it more difficult for boards to secure a waiver 
of standards. Previously, there has been no provision for securing a 
waiver of dormitory standards. The regulation allows for waivers of 
dormitory standards in the same manner that academic standards may be 
waived. Commenters favored a change to a November 15 deadline rather 
than the existing deadline of 75 days prior to the beginning of the 
school year.
    On March 31, 1994, the BIA published proposed rules in the Federal 
Register to amend 25 CFR Part 36 (Number 59 FR page number 15294). A 
total of eleven comments were received and have been considered as 
described below.

General Comments

    Two commenters agreed with incorporating the language of Goals 2000 
into the amendments.
    Eight comments supported the incorporation of language and culture 
into the curriculum.

Specific Comments

    Comment. Philosophy and goals, Section 36.10(a). One commenter 
recommended the following language be added at the end of that section: 
``Mission statements shall meet local tribal approval.''
    Response. No addition was made. Philosophy and goals are developed 
by schools in unison with the community.
    Comment. Administrative requirements, Sec. 36.11(d). Two commenters 
suggested that immunization standards for Indian children should follow 
guidelines of the Advisory Committee on Immunization Practices and the 
American Academy of Pediatrics endorsed by Indian Health Service.
    Response. The sentence concerning immunizations has been amended to 
include the phrase ``or standards of the Indian Health Service.''
    Comment. Minimum academic programs/school calendar, Sec. 36.20(d). 
One commenter suggested that the terminology be changed from diagnose 
to assess to reflect the language of Goals 2000.
    Response. The terminology was changed to read assess instead of 
diagnose to better reflect the language of Goals 2000.
    Comment. Counseling services, Sec. 36.42. One commenter was 
concerned that the school-wide assessment program was included under 
counseling services.
    Response. Section 36.42(a)(5) states that each school's 
instructional program shall establish an ongoing student academic 
assessment program.
    The Department of the Interior has determined that this rule is not 
a significant regulatory action under Executive Order 12866, and 
therefore will not be reviewed by the Office of Management and Budget.
    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).
    The Department of the Interior has determined that this document 
does not require the preparation of a Takings Implication Assessment 
under Executive Order 12630, as it does not affect the use or value of 
private property.
    The Department has determined that this rule does not have 
significant federalism effects.
    The Department of the Interior has determined that this document is 
in compliance with Executive Order 12778, Civil Justice Reform, 
Sections 2(a) and 2(b)(2).
    The Department of the Interior has determined that this proposed 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment and that no detailed statement is 
required pursuant to the National Environmental Policy Act of 1969.
    There are no information collection requirements in this proposed 
rule that require the approval of the Office of Management and Budget 
under 44 U.S.C. 3501 et seq.
    The primary author of this document is Bette Haskins, Planning, 
Oversight and Evaluation Staff, Office of Indian Education Programs, 
(202) 219-3817.

List of Subjects in 25 CFR Part 36

    Elementary and secondary education programs, Childhood diseases, 
Dormitory criteria, Immunization, Indians--education, Schools.

    For the reasons set out in the preamble, Title 25, Chapter I, 
Subchapter E, Part 36 of the Code of Federal Regulations is amended as 
set forth below.

PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF 
INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS

    1. The authority citation for 25 CFR Part 36 is revised to read as 
follows:

    Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C. 
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 
25 U.S.C. 2901, Title I of P.L. 101-477.

    2. Section 36.3, Definitions, is amended by removing the paragraph 
designations, rearranging the existing regulations in alphabetical 
order, and adding in alphabetical order the definitions of ``Authentic 
assessment'' and ``Higher order thinking skills,'' as follows:


Sec. 36.3  Definitions.

* * * * *
    Authentic assessment means the testing of higher order thinking 
skills by monitoring performance of tasks requiring analysis, 
creativity, and application skills in real life situations.
* * * * *
    Higher order thinking skills (or advanced skills) means skills such 
as reading comprehension, written composition, and mathematical 
reasoning. They differ from basic or discrete skills such as phonetic 
decoding and arithmetic operations.
* * * * *
    3. Section 36.10, Standard I--Philosophy and goals is amended by 
revising paragraph (a) to read as follows:


Sec. 36.10  Standard I--Philosophy and goals.

    (a) Each school shall develop a written mission statement and 
philosophy of education that addresses the accumulation of knowledge 
and development of skills, interests, appreciations, ideals, and 
attitudes within the school's total educational program. A statement of 
expected outcomes shall outline what the school is attempting to do to 
meet the needs and interests of its students and community in 
accordance with the school's mission statement and philosophy.
* * * * *
    4. Section 36.11, Standard II--Administrative requirements is 
amended by adding a paragraph (d) as follows:


Sec. 36.11  Standard II--Administrative requirements.

* * * * *
    (d) Immunization. School children shall be immunized in accordance 
with the regulations and requirements of the state in which they attend 
school or standards of the Indian Health Service.
    5. Section 36.20, Standard V--Minimum academic programs/school 
calendar is amended by adding paragraphs (d) (1), (2), (3) and (4) as 
follows:


Sec. 36.20   Standard V--Minimum academic programs/school calendar.

* * * * *
    (d)* * *
    (1) The school's language arts program shall assess the English and 
native language abilities of its students and provide instruction that 
teaches and/or maintains both the English and the primary native 
language of the school population. Programs shall meet local tribal 
approval.
    (2) The school program shall include aspects of the native culture 
in all curriculum areas. Content shall meet local tribal approval.
    (3) The school program shall assess the learning styles of its 
students and provide instruction based upon that assessment. The method 
for assessing learning styles shall be determined at the local level.
    (4) The school program shall provide for at least one field trip 
per child per year to broaden social and academic experiences.
* * * * *
    6. Section 36.24, Standard IX--Secondary instructional program is 
amended by adding a paragraph (g) as follows:


Sec. 36.24  Standard IX--Secondary instructional program.

* * * * *
    (g) Schools are encouraged to provide alternative programs that 
lead to high school completion for secondary students who do not 
function successfully in the regular academic setting.
    7. Section 36.42, Standard XV--Counseling services is amended by 
revising the introductory text and paragraph (a) as follows:


Sec. 36.42  Standard XV--Counseling services.

    Each school shall offer student counseling services concerned with 
physical, social, emotional, intellectual, and vocational growth for 
each individual. Counseling services shall be included in a school-wide 
assessment program.
    (a) Each Agency and Area, as appropriate, shall institute and 
supervise an assessment program for its schools in order to provide for 
the objective assessment of student academic performance. Required 
formal tests shall be administered annually to all regular program 
students in grades 4, 8, and 12. (The testing of special education and 
gifted/talented students shall be in accordance with respective 
regulations.) If required by state certification standards, schools may 
use the state mandated academic achievement tests and accompanying 
requirements. These formal tests and their subtest contents, as well as 
the test-related procedures, shall include, but not be limited to, the 
following:
    (1) Each Spring, schools shall conduct testing for grades 4, 8, and 
12 using a current version of a standardized academic achievement test 
based upon the national assessment standards designed to assess higher 
order thinking skills. All schools shall keep a current record, with 
the Office of Indian Education Programs, of the test the school 
administers each Spring and the testing dates.
    (2) Schools shall use some form of performance-based or authentic 
assessment in addition to standardized achievement testing.
    (3) Each school shall report the summative results of its 
assessment program to its respective Agency or Area, as appropriate, 
and its school board.
    (4) Parents/guardians shall be informed of their children's 
assessment results and provided with an explanation and interpretation 
to ensure adequate understanding of the results.
    (5) Each school's instructional program shall establish an ongoing 
student academic assessment program to ensure that defined assessment 
procedures are in place. The program shall include regular training in 
basic assessment procedures and routines for all teachers and other 
staff involved in student assessment.
    (6) Each Agency and Area, as appropriate, shall report the results 
of each school's formal Spring tests to the Office of Indian Education 
Programs by August 1 of each year. Summative information from 
performance-based and authentic assessments shall be reported at the 
same time.
* * * * *
    8. Section 36.61, Waivers and revisions is amended by revising a 
paragraph (a)(1) as follows:


Sec. 36.61  Waivers and revisions.

    (a) * * *
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the school's annual standards compliance 
report as required by 36.60(b).
* * * * *
    9. Subpart H--National Dormitory Criteria is amended by adding a 
Sec. 36.77 as follows:


Sec. 36.77  Waivers and revisions.

    (a) The tribal governing body (tribe), or the local school board 
(LSB), if so designated by the tribe, shall have the local authority to 
waive or revise in part or in whole, the standard(s) established in 
this part if the standard(s) are determined to be inappropriate or if 
they fail to take into account specific needs of the tribe's children. 
This provision includes both tribal and Bureau-operated schools. When 
the tribe or LSB, if designated by the tribe, waives or revises a 
standard, it shall submit the waiver or revision to the Assistant 
Secretary for approval within 60 days. Until this approval is obtained, 
the standard of this part or minimum state standards shall apply to the 
affected school(s).
    (b) All revised standards shall be submitted to the Assistant 
Secretary in writing in accordance with the following procedure:
    (1) Waivers and revisions shall be submitted by November 15 each 
school year to accompany the dormitory's annual standards compliance 
report.
    (2) The section or part to be waived shall be specified, and the 
extent to which it is to be deviated from shall be described.
    (3) A justification explaining why the alternative standard is 
determined necessary shall be included with the revised standard.
    (4) Measurable objectives and the method of achieving the 
alternative standard along with the estimated cost of implementation 
shall be stated.
    (c) The Assistant Secretary shall respond in writing within 45 days 
of receipt of the waiver or revision. The waiver shall be granted or 
the revision shall be accepted by the Assistant Secretary unless 
specifically rejected for good cause and in writing. The written 
rejection shall be sent to the affected tribe(s) and LSB. This 
rejection shall be final. The waiver is granted or revision is 
established automatically on the 46th day of receipt if no written 
response is provided by the Assistant Secretary.
    (d) The Assistant Secretary shall assist the school board of an 
Indian-controlled contract school in the implementation of the 
standards established in this part if the school board requests that 
these standards, in part or in whole, be implemented. At the request of 
an Indian-controlled contract school board, the Assistant Secretary 
shall provide alternative or modified standards to those established in 
this part to take into account the needs of the Indian children and 
Indian-controlled contract school.

    Dated: September 21, 1994.
Ada E. Deer,
 Assistant Secretary--Indian Affairs.
[FR Doc. 94-29330 Filed 11-30-94; 8:45 am]
BILLING CODE 4310-02-P