[Federal Register Volume 67, Number 13 (Friday, January 18, 2002)]
[Proposed Rules]
[Pages 2770-2772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1341]



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Part III





Department of Education





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34 CFR Chapter II



Office of Elementary and Secondary Education; Title I of the Elementary 
and Secondary Education Act of 1965 as amended (ESEA); Improving the 
Academic Achievement of the Disadvantaged; Proposed Rule

  Federal Register / Vol. 67, No. 13 / Friday, January 18, 2002 / 
Proposed Rules  

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DEPARTMENT OF EDUCATION

34 CFR Chapter II


Office of Elementary and Secondary Education; Title I of the 
Elementary and Secondary Education Act of 1965, as amended (ESEA); 
Improving the Academic Achievement of the Disadvantaged

AGENCY: Department of Education.

ACTION: Request for advice and recommendations on regulatory issues.

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SUMMARY: The Secretary of Education (Secretary) is soliciting advice 
and recommendations from interested parties prior to publishing 
proposed regulations to implement programs under Title I of the 
Elementary and Secondary Education Act of 1965, as recently amended. 
Programs under Title I are designed to help disadvantaged children meet 
high academic standards. They include programs operated by local 
educational agencies in high-poverty schools (Part A), Reading First 
(Part B, Subpart 1), Early Reading First (Part B, Subpart 2), Even 
Start family literacy programs (Part B, Subpart 3), programs for 
migratory children (Part C), prevention and intervention programs for 
children and youth who are neglected, delinquent, or at risk of 
dropping out (Part D), Comprehensive School Reform (Part F), Advanced 
Placement Programs (Part G), and School Dropout Prevention (Part H). 
The Secretary invites advice and recommendations concerning issues for 
which regulations may be helpful to clarify statutory ambiguities or to 
provide appropriate flexibility.

DATES: We must receive your written comments on or before February 19, 
2002.

ADDRESSES: Address all comments to Susan B. Neuman, Assistant Secretary 
for Elementary and Secondary Education, U.S. Department of Education, 
400 Maryland Avenue, SW, Room 3W331, Washington, DC 20202. If you 
prefer to send your comments through the Internet, use the following 
address: [email protected].
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person identified in the preceding 
paragraph.

FOR FURTHER INFORMATION CONTACT: See the supplementary information 
section for further information contacts.

SUPPLEMENTARY INFORMATION:
    For Further Information Contact: For programs under Part A, Susan 
Wilhelm, Telephone (202) 260-0982; for programs under Part B, Subparts 
2 and 3, Patricia McKee, Telephone (202) 260-0991; for programs under 
Part D, Gary Rutkin, Telephone (202) 260-4412: Compensatory Education 
Programs, Office of Elementary and Secondary Education, U.S. Department 
of Education, 400 Maryland Avenue, SW, Room 3W230, Washington, DC 
20202-6132.
    For programs under Part B, Subpart 1, Chris Doherty, Office of 
Elementary and Secondary Education, 400 Maryland Avenue, SW, Room 
3W311, Washington, DC 20202-6132. Telephone: (202) 401-2176.
    For programs under Part C, James English, Migrant Education, Office 
of Elementary and Secondary Education, U.S. Department of Education, 
400 Maryland Avenue, SW, Room 3E333, Washington, DC 20202-6135. 
Telephone: (202) 260-1989.
    For programs under Part F and Part H, Hugh Burkett, Academic 
Improvement and Demonstration Programs, 400 Maryland Avenue, SW, Room 
2W100, Washington. DC 20202-6135. Telephone: (202) 260-1989.
    For programs under Part G, Edith Harvey, School Improvement 
Programs, U.S. Department of Education, 400 Maryland Avenue, SW, 
Washington, DC 20202-6135. Telephone: (202) 260-1393.

Background

    On January 8, 2002, the President signed into law the ``No Child 
Left Behind Act of 2001'' (NCLB Act), amending the Elementary and 
Secondary Education Act of 1965 (ESEA). The NCLB Act reauthorizes the 
ESEA and incorporates the major reforms proposed by President Bush in 
his No Child Left Behind framework for education reform, particularly 
in the areas of assessment, accountability, and school improvement. The 
NCLB Act will strengthen Title I accountability by requiring States to 
implement statewide accountability systems covering all public schools 
and their students. These systems must be based on challenging State 
standards in at least reading and mathematics, annual testing for all 
students in grades 3 through 8, and annual statewide progress 
objectives for ensuring that all students reach proficiency within 12 
years. Assessment results and State progress objectives must be 
disaggregated by poverty, race or ethnicity, disability and limited-
English proficiency to ensure that schools address the educational 
needs of all students. Schools that meet or exceed State adequate 
yearly progress (AYP) objectives or close achievement gaps will be 
eligible for State Academic Achievement Awards. School districts and 
schools that fail to make AYP toward statewide proficiency goals will, 
over time, be subject to improvement, corrective action, and 
restructuring measures to help them meet State standards. Furthermore, 
parents of students in those schools will have the opportunity to 
transfer their children to a better public school or to obtain 
supplemental educational services for them.
    The programs included in Title I of the ESEA, as amended by the 
NCLB Act, are designed to help disadvantaged children meet high 
academic standards. They include: Improving Basic Programs Operated by 
Local Educational Agencies (Part A), Reading First (Part B, Subpart 1), 
Early Reading First (Part B, Subpart 2), Even Start family literacy 
programs (Part B, Subpart 3), programs for migratory children (Part C), 
prevention and intervention programs for children and youth who are 
neglected, delinquent, or at risk of dropping out (Part D), 
Comprehensive School Reform (Part F), Advanced Placement Programs (Part 
G), and School Dropout Prevention (Part H).
    The Department intends to implement Title I programs in a manner 
that respects State and local control over education while ensuring 
strong accountability for results. In particular, the Department 
intends to issue regulations only where absolutely necessary: for 
example, where the statute requires a regulation or where a regulation 
is necessary to provide flexibility or clarification for State and 
local educational agencies. Rather than regulating extensively, the 
Department intends to issue nonregulatory guidance addressing legal and 
policy issues under the Title I programs. This guidance can inform 
schools, parents, school districts, States, and other affected parties 
about the flexibility that exists under the statute, including multiple 
approaches that may be available in carrying out the statute's 
requirements.
    The Secretary invites advice and recommendations from interested 
parties involved with the implementation and operation of programs 
under Title I concerning issues for which regulations may be necessary 
or for which nonregulatory guidance would be helpful to clarify 
statutory ambiguities or to provide appropriate flexibility. The 
Secretary specifically invites advice and recommendations from States 
and local administrators, parents, teachers,

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paraprofessionals, members of local boards of education, charter school 
operators and public chartering authorizers, and other organizations 
(including civil rights groups, test publishers, representatives of 
private schools, and faith-based organizations with educational 
expertise).

Issues for Negotiated Rulemaking

    Before publishing any proposed regulations to implement programs 
under Title I, the Secretary must establish a negotiated rulemaking 
process (unless regulations must be issued within a very limited time 
to assist State and local educational agencies with the operation of 
Title I programs). Negotiated rulemaking can improve the substance of 
regulations; increase understanding of, and support for, those 
regulations; encourage affected parties to communicate with each other 
and share information, knowledge, expertise, and analysis; and 
discourage expensive and time-consuming litigation concerning the 
regulations. The Secretary will select individuals to participate in 
this process from among the individuals or groups providing advice and 
recommendations on Title I regulatory issues. The Secretary will 
publish a separate notice in the Federal Register providing details 
about the negotiated rulemaking process.
    Section 1901 of Title I requires that, at a minimum, the negotiated 
rulemaking process address issues concerning standards and assessments. 
The Secretary is also considering conducting negotiated rulemaking on 
the statutory provisions dealing with adequate yearly progress in 
section 1111. Therefore, the Secretary specifically invites comments on 
these provisions, including whether regulations are necessary and 
whether nonregulatory guidance would be helpful. The following 
discussion describes these statutory provisions. Commenters should use 
this discussion to guide their comments. The discussion, however, is 
not intended to restrict the issues that commenters may address.

Academic Standards

    Under section 1111(b)(1) of Title I, each State must adopt 
challenging academic content standards and student academic achievement 
standards (formerly called ``student performance standards'') that will 
be used by the State, its local educational agencies, and its schools 
to carry out Part A. These academic standards must be the same 
standards that the State applies to all students and all schools in the 
State. States must have such standards in subjects determined by the 
State, but at a minimum, in mathematics, reading/language arts, and 
(beginning in the 2005-2006 school year) science. These standards must 
include challenging content standards in academic subjects that specify 
what children are expected to know and be able to do. They must contain 
coherent and rigorous content, and encourage the teaching of advanced 
skills. States also must have challenging student academic achievement 
standards that are aligned with the State's content standards and 
describe three levels of achievement: Advanced, proficient, and basic. 
Advanced and proficient levels determine how well children are 
mastering the State's content standards; the basic level provides 
complete information about the progress of lower-performing children 
toward achieving the proficient and advanced levels of achievement.

Academic Assessments

    Under section 1111(b)(3) of Title I, each State also must implement 
a set of high-quality, yearly student academic assessments in, at a 
minimum, mathematics, reading/language arts, and (by school year 2007-
08) science that will be used as the primary means of determining the 
yearly achievement of the State and each local educational agency and 
public school in enabling all children to meet the State's student 
academic achievement standards. These assessments must be the same ones 
used to measure the achievement of all children, be aligned with the 
State's academic content and student achievement standards, and be used 
for purposes for which they are valid and reliable. The statutory 
timeline for developing and administering assessments unfolds in three 
stages. In stage one, through school year 2004-05, assessments in 
mathematics and reading/language arts must be administered no less than 
one time during grades 3 though 5, grades 6 though 9, and grades 10 
through 12. In stage two, beginning no later than school year 2005-
2006, assessments in mathematics and reading/language arts, at a 
minimum, must be administered in grades 3 through 8 and one time during 
grades 10 through 12. In stage three, beginning no later than school 
year 2007-2008, assessments that measure proficiency in science must be 
administered no less than one time during grades 3 through 5, grades 6 
though 9, and grades 10 through 12. Assessments must involve multiple 
up-to-date measures of academic achievement, including measures that 
assess higher-order thinking skills and understanding.
    States must administer assessments to all students, providing 
reasonable adaptations and accommodations for students with 
disabilities and students with limited English proficiency. Moreover, 
students with limited English proficiency must be assessed, to the 
extent practicable, in the language and form most likely to yield 
accurate data on what those students know and can do in academic 
content areas until they have achieved English proficiency. With 
respect to reading/language arts, students with limited English 
proficiency who have attended schools in the United States (excluding 
Puerto Rico) for three or more consecutive school years must be 
assessed in English, unless a local educational agency determines, on a 
case-by-case basis, that academic assessments in another language for 
up to an additional two years would likely yield more accurate and 
reliable information.
    The results of assessments must be disaggregated within each State, 
local educational agency, and school by gender, by each major racial 
and ethnic group, by English proficiency status, by migrant status, by 
students with disabilities compared to nondisabled students, and by 
economically disadvantaged students compared to students who are not 
economically disadvantaged. Finally, States must produce individual 
student interpretive, descriptive, and diagnostic reports and itemized 
score analyses that allow parents, teachers, and principals to 
understand and address the specific academic needs of students relative 
to their achievement against State standards.

Adequate Yearly Progress

    Under section 1111(b)(2)(B), each State must demonstrate what 
constitutes adequate yearly progress of the State, and of all public 
elementary and secondary schools and local educational agencies in the 
State, toward enabling all students to meet the State's student 
achievement standards, while working toward the goal of narrowing 
achievement gaps in the State. ``Adequate yearly progress'' definitions 
must apply the same high standards of academic achievement to all 
public elementary and secondary school students in the State, be 
statistically valid and reliable, and measure progress based primarily 
on the State's academic assessments. The definition must include 
separate annual measurable objectives for continuous and substantial 
improvement in both mathematics and reading/language arts

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for all students and for each of the following specific groups of 
students: Students who are economically disadvantaged, students from 
each major racial and ethnic group, students with disabilities, and 
students with limited English proficiency. However, disaggregated data 
are not required in cases when the number of students in a category is 
insufficient to yield statistically reliable information or when the 
results would reveal personally identifiable information about an 
individual student.
    ``Adequate yearly progress'' definitions must include graduation 
rates for public secondary schools and at least one other academic 
indicator for public elementary schools, and may include other academic 
indicators. However, although additional indicators may be used to 
identify additional schools for school improvement, corrective action, 
or restructuring, they may not be used to reduce the number of, or 
change the identity of, the schools that would otherwise be subject to 
school improvement, corrective action, or restructuring.
    Each State must use data from the 2001-2002 school year to 
establish the starting point for measuring the percentage of students 
meeting or exceeding the State's proficient level of academic 
achievement. The starting point must, at a minimum, be based on the 
higher of two levels defined in the statute.
    ``Adequate yearly progress'' must include a timeline that ensures 
that all students in each subgroup meet or exceed the State's 
proficient level of academic achievement no later than 12 years after 
the end of the 2001-2002 school year. The timeline must include 
intermediate goals for meeting adequate yearly progress. These 
intermediate goals must increase in equal increments over the timeline; 
the first increment must occur in not more than two years, and the 
following increases must occur in not more than three years. In 
calculating whether a school has made ``adequate yearly progress,'' the 
State may establish procedures for averaging data. These procedures may 
include averaging scores across grade spans and averaging data over 
three years.
    To make ``adequate yearly progress,'' a school must meet two 
criterias. First, the school must meet or exceed the State's annual 
measurable objectives with respect to all students and students in each 
subgroup. If students in any subgroup fail to make the requisite 
progress, however, the school need not be identified for improvement if 
the percentage of students in that group below proficient decreased by 
at least 10 percent compared to the preceding year and that group made 
progress on one or more of the additional academic indicators. Second, 
at least 95 percent of the students in each group who have been 
enrolled in the local educational agency's schools for at least one 
year must take the assessment.

Invitation to Comment

    This request for comments on regulatory issues under Title I is 
designed to elicit the views of interested parties, particularly State 
and local administrators, parents, teachers, paraprofessionals, members 
of local boards of education, charter school operators and public 
chartering authorities, and other organizations (including civil rights 
groups, test publishers, representatives of private school children, 
and faith-based organizations with educational expertise) involved with 
the implementation and operation of Title I programs.
    In addition to inviting specific comments on issues relating to 
standards, assessments and adequate yearly progress, the Secretary 
invites comments on other regulatory issues concerning provisions under 
Title I, including suggestions that regulations are not needed to 
resolve particular issues.
    The Secretary requests that each commenter identify his or her role 
in education and the perspective from which he or she views the 
educational system--either as a representative of an association, 
agency, or school (public or private), or as an individual teacher, 
student, parent, or private citizen. The Secretary urges each commenter 
to be specific regarding his or her recommendations, including the 
statutory citation pertinent to the comment.
    All comments submitted in response to this notice will be available 
for public inspection during and after the comment period in 400 
Maryland Avenue, SW, Room 3W202, Washington, DC 20202 between the hours 
of 8:30 a.m. and 4:30 p.m., Monday through Friday of each week except 
Federal holidays.

Electronic Access to This Document

    You may view this document, in Text or Adobe Portable Document 
Format (PDF) on the Internet at the following site: http://www.ed.gov/legislation/FedRegister
    To use the PDF you must have Adobe Acrobat Reader, which is 
available free at this site. If you have questions about using PDF, 
call the U.S. Government Printing Office toll free at 1-888-293-6498; 
or in the Washington, DC area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO access at: http://www.access.gpo.gov/nara/index.html


(Catalog of Federal Domestic Assistance Numbers: 84.010, Improving 
Programs Operated by Local Educational Agencies; 84.011, Migrant 
Education Basic State Formula Grant Program; 84.013, Prevention and 
Intervention Programs for Children and Youth Who Are Neglected, 
Delinquent, or At-Risk of Dropping Out; 84.213, Even Start)


    Program Authority: Public Law 107-110.

    Dated: January 14, 2002.
Rod Paige,
Secretary of Education.
[FR Doc. 02-1341 Filed 1-17-02; 8:45 am]
BILLING CODE 4000-01-U