[Federal Register Volume 68, Number 56 (Monday, March 24, 2003)]
[Notices]
[Pages 14205-14227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6949]



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DEPARTMENT OF EDUCATION


Notice of Written Findings and Compliance Agreement

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Notice of written findings and compliance agreement.

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SUMMARY: Section 457 of the General Education Provisions Act (GEPA) 
authorizes the U.S. Department of Education to enter into a compliance 
agreement with a recipient that is failing to comply substantially with 
Federal program requirements. In order to enter into a compliance 
agreement, the Department must determine, in written findings, that the 
recipient cannot comply until a future date with the applicable program 
requirements, and that a compliance agreement is a viable means of 
bringing about such compliance. On April 4, 2002, the Assistant 
Secretary for Elementary and Secondary Education (Assistant Secretary) 
entered into a compliance agreement with the Montana Office of Public 
Instruction (OPI). Under section 457(b)(2) of GEPA, the written 
findings and compliance agreement must be published in the Federal 
Register.

FOR FURTHER INFORMATION CONTACT: Carlos Mart[iacute]nez, U.S. 
Department of Education, Office of Elementary and Secondary Education, 
400 Maryland Avenue, SW., Room 3W212, Washington, DC 20202-6132. 
Telephone: (202) 260-2493.
    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 listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under Title I, Part A of the Elementary and 
Secondary Education Act of 1965 (Title I), each State, including the 
District of Columbia and Puerto Rico, was required to develop or adopt, 
by the 1997-98 school year, challenging content standards in at least 
reading/language arts and mathematics that describe what the State 
expects all students to know and be able to do. Each State also was 
required to develop or adopt performance standards aligned with its 
content standards that describe three levels of proficiency to 
determine how well students are mastering the content standards. 
Finally, by the 2000-2001 school year, each State was required to 
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the 
yearly performance of schools in enabling students to meet the State's 
performance standards.
    OPI submitted, and the Department approved, evidence that it has 
content standards in at least reading/language arts and mathematics. In 
November 2000, OPI submitted evidence of its final assessment system. 
The Department submitted that evidence to a panel of three assessment 
experts for peer review. Following that review, the Acting Deputy 
Assistant Secretary for Elementary and Secondary Education (Acting 
Deputy Assistant Secretary) concluded that OPI's proposed final 
assessment system did not meet a number of the Title I requirements.
    Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies 
available to the Department when it determines that a recipient ``is 
failing to comply substantially with any requirement of law'' 
applicable to Federal program funds the Department administers. 
Specifically, the Department is authorized to--
    (1) Withhold funds;
    (2) Obtain compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law.

20 U.S.C. 1234c(a)(1) through (a)(4).
    In a letter dated July 6, 2001 to Linda H. McCulloch, 
Superintendent of Public Instruction for Montana, the Acting Deputy 
Assistant Secretary notified OPI that, in order to remain eligible to 
receive Title I funds, it must enter into a compliance agreement with 
the Department. The purpose of a compliance agreement is ``to bring the 
recipient into full compliance with the applicable requirements of law 
as soon as feasible and not to excuse or remedy past violations of such 
requirements.'' 20 U.S.C. 1234f(a). In order to enter into a compliance 
agreement with a recipient, the Department must determine, in written 
findings, that the recipient cannot comply until a future date with the 
applicable program requirements, and that a compliance agreement is a 
viable means for bringing about such compliance.
    On April 4, 2002, the Assistant Secretary issued written findings, 
holding that compliance by OPI with the Title I standards and 
assessment requirements is genuinely not feasible until a future date. 
Having submitted its assessment system for peer review in November 
2000, OPI was not able to make the significant changes to its system 
that the Department's review required in time to meet the spring 2001 
statutory deadline to have approved assessments in place. As a result, 
OPI administered its unapproved assessment system in 2001. The 
Assistant Secretary also determined that a compliance agreement 
represents a viable means of bringing about compliance because of the 
steps OPI has already taken to comply and the plan it has developed for 
further action. The agreement sets out the action plan that OPI must 
meet to come into compliance with the Title I requirements. This plan, 
coupled with specific reporting requirements, will allow the Assistant 
Secretary to monitor closely OPI's progress in meeting the terms of the 
compliance agreement. The Superintendent of Public Instruction for 
Montana, Linda H. McCulloch, signed the agreement on April 1, 2002 and 
the Assistant Secretary signed the compliance agreement on April 4, 
2002.
    As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), 
the text of the Assistant Secretary's written findings is set forth as 
appendix A and the compliance agreement is set forth as appendix B of 
this notice.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in Text or Adobe 
Portable Document Format (PDF), on the Internet at the following site: 
http://www.ed.gov/legislation/FedRegister.
    To use 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. 
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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 is available on GPO access 
at: http://www.access.gpo.gov/nara/index.html


(Authority: 20 U.S.C. 1234c, 1234f, 6311)

    Dated: March 12, 2003.
Eugene W. Hickok,
Under Secretary of Education.

Appendix A--Text of the Written Findings of the Assistant Secretary for 
Elementary and Secondary Education

I. Introduction

    The Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) of the U.S. Department of Education 
(Department) has determined, pursuant to 20

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U.S.C. 1234c and 1234f, that the Montana Office of Public 
Instruction (OPI) has failed to comply substantially with certain 
requirements of Title I, Part A of the Elementary and Secondary 
Education Act of 1965 (Title I), 20 U.S.C. 6301 et seq., and that it 
is not feasible for OPI to achieve full compliance immediately. 
Specifically, the Assistant Secretary has determined that OPI failed 
to meet a number of the Title I requirements concerning the 
development of performance standards and an aligned assessment 
system within the statutory timeframe.
    For the following reasons, the Assistant Secretary has concluded 
that it would be appropriate to enter into a compliance agreement 
with OPI to bring it into full compliance as soon as feasible. 
During the effective period of the compliance agreement, which ends 
three years from the date of these findings, OPI will be eligible to 
receive Title I funds as long as it complies with the terms and 
conditions of the agreement as well as the provisions of Title I, 
Part A and other applicable Federal statutory and regulatory 
requirements.

II. Relevant Statutory and Regulatory Provisions

A. Title I, Part A of the Elementary and Secondary Education Act of 
1965

    Title I, Part A of the Elementary and Secondary Education Act of 
1965 (Title I), 20 U.S.C. 6301 et seq., provides financial 
assistance, through State educational agencies, to local educational 
agencies to provide services in high-poverty schools to students who 
are failing or at risk of failing to meet the State's student 
performance standards. Under Title I, each State, including the 
District of Columbia and Puerto Rico, was required to develop or 
adopt, by the 1997-98 school year, challenging content standards in 
at least reading/language arts and mathematics that describe what 
the State expects all students to know and be able to do and 
performance standards, aligned with those content standards, that 
describe three levels of proficiency to determine how well students 
are mastering the content standards.
    By the 2000-2001 school year, Title I required each State to 
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the 
yearly performance of schools and school districts in enabling 
students to meet the State's performance standards. These 
assessments must meet the following requirements:
    [sbull] The assessments must be aligned to a State's content and 
performance standards.
    [sbull] They must be administered annually to students in at 
least one grade in each of three grade ranges: grades 3 through 5, 
grades 6 through 9, and grades 10 through 12.
    [sbull] They must be valid and reliable for the purpose for 
which they are used and of high technical quality.
    [sbull] They must involve multiple measures, including measures 
that assess higher-order thinking skills.
    [sbull] They must provide for the inclusion of all students in 
the grades assessed, including students with disabilities and 
limited English proficient students.
    [sbull] They must provide individual reports.
    [sbull] Results from the assessments must be disaggregated and 
reported by major racial and ethnic groups and other categories.
20 U.S.C. 6311(b)(3).\1\
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    \1\ On January 8, 2002, Title I of the Elementary and Secondary 
Education Act was reauthorized by the No Child Left Behind Act of 
2001 (NCLB) (Pub. L. 107-110). The NCLB made several significant 
changes to the Title I standards and assessment requirements. First, 
it requires that each State develop academic content and student 
achievement standards in science by the 2005-06 school year. Second, 
by the 2005-06 school year, it requires a system of aligned 
assessments in each of grades 3 through 8 and once during grades 10 
through 12. Third, it requires science assessments in at least three 
grade spans by the 2007-08 school year. Fourth, the NCLB 
significantly changes the definition of adequate yearly progress 
each State must establish to hold schools and school districts 
accountable, based on data from the 2001-02 test administration. 
Finally, by the 2002-03 school year, the NCLB requires State and 
school district report cards that include, among other things, 
assessment results disaggregated by various subgroups, two-year 
trend data, and percent of students tested.
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B. The General Education Provisions Act

    The General Education Provisions Act (GEPA) provides a number of 
options when the Assistant Secretary determines a recipient of 
Department funds is ``failing to comply substantially with any 
requirement of law applicable to such funds.'' 20 U.S.C. 1234c. In 
such case, the Assistant Secretary is authorized to--
    (1) Withhold funds;
    (2) Obtain compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law. 20 U.S.C. 
1234c(a)(1) through (a)(4).
    Under section 457 of GEPA, the Assistant Secretary may enter 
into a compliance agreement with a recipient that is failing to 
comply substantially with specific program requirements. 20 U.S.C. 
1234f. The purpose of a compliance agreement is ``to bring the 
recipient into full compliance with the applicable requirements of 
the law as soon as feasible and not to excuse or remedy past 
violations of such requirements.'' 20 U.S.C. 1234f(a). Before 
entering into a compliance agreement with a recipient, the Assistant 
Secretary must hold a hearing at which the recipient, affected 
students and parents or their representatives, and other interested 
parties are invited to participate. At that hearing, the recipient 
has the burden of persuading the Assistant Secretary that full 
compliance with the applicable requirements of law is not feasible 
until a future date and that a compliance agreement is a viable 
means for bringing about such compliance. 20 U.S.C. 1234f(b)(1). If, 
on the basis of all the available evidence, the Assistant Secretary 
determines that compliance until a future date is genuinely not 
feasible and that a compliance agreement is a viable means for 
bringing about such compliance, the Assistant Secretary must make 
written findings to that effect and publish those findings, together 
with the substance of any compliance agreement, in the Federal 
Register. 20 U.S.C. 1234f(b)(2).
    A compliance agreement must set forth an expiration date, not 
later than three years from the date of these written findings, by 
which time the recipient must be in full compliance with all program 
requirements. 20 U.S.C. 1234f(c)(1). In addition, a compliance 
agreement must contain the terms and conditions with which the 
recipient must comply during the period that agreement is in effect. 
20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of 
the terms and conditions of the compliance agreement, the Assistant 
Secretary may consider the agreement no longer in effect and may 
take any of the compliance actions described previously. 20 U.S.C. 
1234f(d).

III. Analysis

A. Overview of Issues To Be Resolved in Determining Whether a 
Compliance Agreement Is Appropriate

    In deciding whether a compliance agreement between the Assistant 
Secretary and OPI is appropriate, the Assistant Secretary must first 
determine whether compliance by OPI with the Title I standards and 
assessment requirements is genuinely not feasible until a future 
date. 20 U.S.C. 1234f(b). The second issue that the Assistant 
Secretary must resolve is whether OPI will be able, within a period 
of up to three years, to come into compliance with the Title I 
requirements. Not only must OPI come into full compliance by the end 
of the effective period of the compliance agreement, it must also 
make steady and measurable progress toward that objective while the 
compliance agreement is in effect. If such an outcome is not 
possible, then a compliance agreement between the Assistant 
Secretary and OPI would not be appropriate.

B. OPI Has Failed To Comply Substantially With Title I Standards 
and Assessment Requirements

    In November 2000, OPI submitted evidence of its final assessment 
system. The Assistant Secretary submitted that evidence to a panel 
of three assessment experts for peer review. Following that review, 
the Acting Deputy Assistant Secretary for Elementary and Secondary 
Education (Acting Deputy Assistant Secretary) concluded that OPI's 
proposed final assessment system did not meet a number of the Title 
I requirements. Specifically, the Acting Deputy Assistant Secretary 
determined that OPI must do the following:
    [sbull] Provide evidence that Montana's performance standards 
are aligned with your State content standards, and that a broad base 
of stakeholders was involved in the development of the performance 
standards.
    [sbull] Complete the development of the second phase of the 
Montana assessment system addressing multiple measures that assess 
higher order thinking skills and the portions of the State standards 
that are not currently being assessed. Montana must describe the 
design of this phase of the assessment system, including the content 
to be assessed, the processes by which the system is to be created, 
the nature of the scores to be produced, and how the scores will be 
aggregated for decision making at the school, district, and State 
levels.

[[Page 14207]]

    [sbull] Provide evidence of further objective alignment studies 
completed by teachers and other experts knowledgeable about 
Montana's content standards and submit the results for peer review. 
Montana previously submitted for peer review evidence of a study 
done by the contractor of the alignment between the ITBS and ITED 
and Montana's content standards.
    [sbull] For the Alternate Assessment Scale, Montana must provide 
evidence of technical quality, the timeline for implementation, and 
the role of the Scale in the State's accountability system.
    [sbull] Provide complete participation data for students with 
disabilities and limited English proficient students so that 
Montana's inclusion practices relating to assessment, reporting, and 
accountability can be evaluated.
    [sbull] Provide data showing that all assessments used in 
Montana for Title I accountability meet commonly accepted 
professional standards for technical quality consistent with the 
uses made of the results.
    [sbull] Develop and disseminate annual school reports that 
display assessment results for all students, disaggregated by 
gender, major racial/ethnic groups, limited English proficient 
status, migrant status, students with disabilities as compared to 
non-disabled students, and economically disadvantaged students 
compared to non-disadvantaged students.
    [sbull] Upon completion of the development of performance 
standards, individual student interpretive and descriptive reports 
must be generated and disseminated to parents to inform them how 
well their students are meeting those performance standards.
    [sbull] Provide the Department with the State's definition of 
``full academic year'' for including students in determining 
adequate yearly progress.

C. OPI Cannot Correct Immediately its Noncompliance With the Title 
I Standards and Assessment Requirements

    Under the Title I statute, OPI was required to implement its 
final assessment system no later than the 2000-2001 school year. 20 
U.S.C. 6311(b)(6). OPI submitted evidence of its assessment system 
in November 2000, but the Acting Deputy Assistant Secretary 
determined, on the basis of that evidence, that OPI's system did not 
fully meet the Title I requirements. Due to the enormity and 
complexity of developing a new assessment system that addressed the 
Acting Deputy Assistant Secretary's concerns, OPI was not able to 
complete that task between the time it submitted its system for 
review and the spring 2001 assessment window. Thus, in March 2001, 
OPI administered the assessment that the Acting Deputy Assistant 
Secretary had determined did not meet the Title I requirements. As a 
result, the Assistant Secretary finds that it is not genuinely 
feasible for OPI to come into compliance until a future date.

D. OPI Can Meet the Terms and Conditions of a Compliance Agreement 
and Come Into Full Compliance With the Requirements of Title I 
Within Three Years

    At the public hearing, OPI presented evidence of its commitment 
and capability to come into compliance with the Title I standards 
and assessment requirements within three years. For example, OPI 
developed, for grades 4, 8 and 12, a set of approved content 
standards in reading and mathematics as well as standards in a 
number of other areas such as science and social studies. OPI also 
developed performance descriptors in reading and mathematics. OPI 
has also developed and administered an Alternate Assessment Scale 
for students with disabilities. It must modify the Alternate 
Assessment Scale, however, to ensure full alignment and inclusion of 
all students. Moreover, OPI has committed resources and personnel to 
continue the work of developing, aligning, implementing, and 
evaluating its assessment system.
    Finally, OPI has developed a comprehensive action plan, 
incorporated into the compliance agreement, that sets out a very 
specific schedule that OPI has agreed to meet during the next three 
years for attaining compliance with the Title I standards and 
assessment requirements. As a result, OPI is committed not only to 
coming into full compliance within three years, but to meeting a 
stringent, but reasonable, schedule for doing so. The action plan 
also demonstrates that OPI will be well on its way to meeting the 
new standards and assessment requirements of the No Child Left 
Behind Act of 2001. The compliance agreement also sets out 
documentation and reporting procedures that OPI must follow. These 
provisions will allow the Assistant Secretary to ascertain promptly 
whether OPI is meeting each of its commitments under the compliance 
agreement and is on schedule to achieve full compliance within the 
effective period of the agreement.
    The task of developing an assessment system that meets the Title 
I requirements is not a quick or easy one. However, the Assistant 
Secretary has determined that, given the commitment of OPI to comply 
with the terms and conditions of the compliance agreement, it is 
possible for OPI to come into full compliance with the Title I 
standards and assessment requirements within three years.

IV. Conclusion

    For the foregoing reasons, the Assistant Secretary finds the 
following: (1) That full compliance by OPI with the standards and 
assessment requirements of Title I is not feasible until a future 
date; and (2) that OPI can meet the terms and conditions of the 
attached compliance agreement and come into full compliance with the 
Title I standards and assessment requirements within three years of 
the date of these findings. Therefore, the Assistant Secretary has 
determined that it is appropriate to enter into a compliance 
agreement with OPI. Under the terms of 20 U.S.C. 1234f, that 
compliance agreement becomes effective on the date of these 
findings.

    Dated: April 4, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.

Appendix B--Text of the Compliance Agreement

Compliance Agreement Under Title I of the Elementary and Secondary 
Education Act Between the United States Department of Education and the 
Montana Office of Public Instruction

Introduction

    Title I of the Elementary and Secondary Education Act of 1965 
(Title I) required each State, including the District of Columbia 
and Puerto Rico, to develop or adopt, by the 1997-98 school year, 
challenging content standards in at least reading/language arts and 
mathematics that describe what the State expects all students to 
know and be able to do and performance standards, aligned with those 
content standards, that describe three levels of proficiency to 
determine how well students are mastering the content standards. By 
the 2000-2001 school year, Title I required each State to develop or 
adopt a set of student assessments in at least reading/language arts 
and mathematics that would be used to determine the yearly 
performance of schools and school districts in enabling students to 
meet the State's performance standards.
    The Montana Office of Public Instruction (OPI) was not able to 
meet these requirements by the statutory deadlines. In order to be 
eligible to continue to receive Title I funds while working to 
comply with the statutory requirements, the Superintendent of Public 
Instruction indicated OPI's interest in entering into a compliance 
agreement with the Office of Elementary and Secondary Education 
(OESE) of the United States Department of Education. On December 10, 
2001, OESE conducted a public hearing regarding OPI's ability to 
come into compliance with the Title I standards and assessment 
requirements within three years. Based on testimony at that hearing, 
the Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) determined that compliance by OPI with the 
Title I standards and assessment requirements was genuinely not 
feasible until a future date. The Assistant Secretary also 
determined that a compliance agreement represents a viable means of 
bringing about compliance because of steps OPI has already taken to 
address its noncompliance, its commitment of resources and the 
action plan it has developed. The Assistant Secretary's written 
findings are incorporated into this agreement.
    Pursuant to this compliance agreement under 20 U.S.C. 1234f, OPI 
must be in full compliance with the requirements of Title I no later 
than three years from the effective date of this agreement. 
Specifically, OPI must meet, and document that it has met, the 
following requirements:
    1. Complete development of performance standards by aligning 
performance descriptors to Montana's content standards and set cut 
scores on the assessments that define levels of performance.

[[Page 14208]]

    2. Develop or select an academic assessment system that 
represents the full range of Montana's content standards and 
performance standards in at least reading/language arts and 
mathematics consistent with the Title I requirements for use of 
multiple measures of student achievement, including measures that 
assess higher-order thinking and understanding. Document the 
alignment of the assessment system with Montana's content and 
student performance standards.
    3. Document that all students are included in the assessment 
system, particularly limited English proficient students and 
students with disabilities. Include test results for all students in 
school accountability measures. Monitor school-level decisions 
regarding inclusion of all students in the assessment system.
    4. All assessments used in the State for Title I accountability 
must meet commonly accepted professional standards for technical 
quality consistent with the uses made of the results. For the 
Alternate Assessment Scale, Montana must provide evidence of 
technical quality.
    5. Develop and disseminate individual student interpretive and 
descriptive reports. Report assessment results for the state, each 
district, and school that are disaggregated by all required 
categories.
    6. Meet requirements under the No Child Left Behind Act of 2001 
related to assessments and accountability.
    During the period that this compliance agreement is in effect, 
OPI is eligible to receive Title I, Part A funds if it complies with 
the terms and conditions of this agreement, as well as the 
provisions of Title I, Part A and other applicable Federal statutory 
and regulatory requirements. Specifically, the compliance agreement 
sets forth action steps OPI must meet to come into compliance with 
the Title I standards and assessment requirements. OPI must submit 
documentation concerning its compliance with these action steps.
    The action steps incorporated into this compliance agreement may 
be amended by joint agreement of the parties, provided full 
compliance can still be accomplished by the expiration date of the 
agreement.
    If OPI fails to comply with any of the terms and conditions of 
this compliance agreement, including the action steps below, the 
Department may consider the agreement no longer in effect and may 
take any action authorized by law, including the withholding of 
funds or the issuance of a cease and desist order. 20 U.S.C. 
1234f(d).
For the Montana Office of Public Instruction:

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Linda H. McCulloch,
Superintendent of Public Instruction.
April 1, 2002

For the United States Department of Education:

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Susan B. Neuman,
Assistant Secretary, Office of Elementary and Secondary Education.

April 4, 2002.
Date this compliance agreement becomes effective: April 5, 2002
Expiration date of this agreement: April 5, 2005.
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[FR Doc. 03-6949 Filed 3-21-03; 8:45 am]
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