[Federal Register Volume 69, Number 121 (Thursday, June 24, 2004)]
[Proposed Rules]
[Pages 35462-35465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14358]



[[Page 35461]]

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Part III





Department of Education





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34 CFR Part 200



Title I--Improving the Academic Achievement of the Disadvantaged; 
Proposed Rule

  Federal Register / Vol. 69, No. 121 / Thursday, June 24, 2004 / 
Proposed Rules  

[[Page 35462]]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1820-AB55


Title I--Improving the Academic Achievement of the Disadvantaged

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing 
programs administered under Part A of Title I of the Elementary and 
Secondary Education Act of 1965, as amended (ESEA). These proposed 
regulations would implement statutory provisions regarding State, local 
educational agency (LEA), and school accountability for the academic 
achievement of limited English proficient (LEP) students and are needed 
to implement changes to Title I of the ESEA made by the No Child Left 
Behind Act of 2001 (NCLB Act).

DATES: We must receive your comments on or before August 9, 2004.

ADDRESSES: Address all comments about these proposed regulations to 
Jacquelyn C. Jackson, Ed.D., Acting Director, Student Achievement and 
School Accountability Programs, Office of Elementary and Secondary 
Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 
3W230, FB-6, Washington, DC 20202-6132. The Fax number for submitting 
comments is (202) 260-7764.
    If you prefer to send your comments through the Internet, you may 
address them to us at the U.S. Government Web site: 
www.regulations.gov.
or you may send your Internet comments to us at the following 
address:[email protected].
    You must include the term ``proposed rule'' in the subject line of 
your electronic message.

FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D. Telephone: 
(202) 260-0826.
    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:

Invitation To Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 3W202, FB-6, 400 
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. 
and 4 p.m., Eastern time, Monday through Friday of each week except 
Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Background

    These proposed regulations are designed to provide State 
educational agencies (SEAs) with expanded flexibility in assessing LEP 
students against State content standards and in counting the 
performance of LEP students as a group in measuring whether a school 
and LEA are meeting adequate yearly progress (AYP) goals. Specifically, 
the proposed regulations would allow a State to exempt ``recently 
arrived'' LEP students from one administration of the State's reading/
language arts assessment. Recently arrived students are students with 
limited English proficiency who have attended schools in the United 
States (not including Puerto Rico) for less than 10 months before the 
test is administered. In addition, the proposed regulations would allow 
a State not to count in AYP determinations the scores of the recently 
arrived students who do take the reading/language arts and the 
mathematics assessments during that period.
    These proposed regulations are needed to implement statutory 
provisions regarding State, LEA, and school accountability for the 
academic achievement of recently arrived students with limited English 
language proficiency. As a diverse Nation, we educate students from 
many different countries. There are approximately 5.5 million students 
in U.S. schools who do not have English as their first language. Some 
States report that as many as 120 languages are represented in their 
schools. Often, the recently arrived students have difficulty 
demonstrating their knowledge through State content assessments in 
English due to language barriers or schooling experiences in their 
native country. Students need time to become acclimated to their new 
community and to schooling in the United States. Several researchers 
have reported the isolation and confusion newcomer students feel in 
their schools upon arrival and sometimes well into the first year.\1\ 
This creates a challenge for the many States that do not offer native 
language assessments for all students, and available accommodations 
generally would not provide a real opportunity for newly arrived LEP 
students to demonstrate their mastery of a content area in English. The 
proposed regulations would allow approximately one year for schools and 
LEAs to provide intensified language instruction programs well aligned 
with the State's English language proficiency (ELP) standards and 
linked with State academic content and student academic achievement 
standards.
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    \1\ See L. Cheng, Challenges for Asian/Pacific American Children 
and their Teachers, ERIC Digest (ERIC Clearinghouse on Urban 
Education) (1999); J. Dufresne & S. Hall, LEAP English Academy: An 
alternative high school for newcomers to the United States, MINNE-WI 
TESOL Journal 14 (1997); R. Gonzalez, Title VII Newcomer Program: 
Final report 1993-1994, (Austin Independent School District, Texas, 
Office of Research and Evaluation) (1994); C. Moran, J. Stobbe, J. 
Villamil Tinajero & I. Tinajero, Developing Literacy: Strategies for 
working with overage students, reprinted with permission for 
distribution at the Symposium on the Education of Over-age LEP 
Students with Interrupted Formal Schooling (1997); L. Olsen, 
Learning English and learning America: Immigrants in the center of a 
storm, Theory into Practice 39, 196-202 (Autumn 2000); L. Olsen, A. 
Jaramillo, Z. McCall-Perez, & J. White, Igniting change for 
immigrant students: Portraits of three high schools, Oakland, CA: 
California Tomorrow (1999).
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    These proposed regulations also would allow a State to include 
``former LEP'' students within the LEP category in making AYP 
determinations for up to two years after they no longer meet the

[[Page 35463]]

State's definition for limited English proficiency. The LEP subgroup is 
a subgroup whose membership can change from year to year, as students 
who have acquired English language proficiency exit and recently 
arrived students enter the subgroup. Because LEP students exit the LEP 
category once they attain English language proficiency, school 
assessment scores may not reflect gains that the LEP student subgroup 
has made in academic achievement.
    In order to ensure that no child is left behind, Title I requires 
schools, LEAs, and States to be accountable for the achievement of LEP 
students and other subgroups of students, including students with 
disabilities, economically disadvantaged students and students from 
major racial and ethnic groups. The purpose of subgroup accountability 
is to ensure that districts and schools address the needs of all of 
their students and are held accountable for the achievement of all 
students, and that achievement for the school or LEA as a whole does 
not mask a school's or LEA's inability to ensure the progress of all 
significant subgroups of students. There are significant aspects of the 
law that provide a measure of flexibility in how schools and LEAs 
demonstrate whether their LEP students are making AYP. Several of these 
areas were addressed in a letter the Secretary sent to the Chief State 
School Officers dated February 20, 2004. Notwithstanding this existing 
flexibility, the Secretary has determined that additional flexibility 
with regard to recently arrived LEP students and former LEP students is 
needed. Accordingly, his February 20 letter authorized, on a 
transitional basis pending the issuance of final regulations, the 
elements of flexibility contained in these proposed regulations.

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Section 200.6 Inclusion of All Students

    Statute: Under Section 1111(b)(3) of Title I, each State is 
required to assess the reading/language arts and mathematics 
proficiency of LEP students in a valid and reliable manner, using 
reasonable accommodations or, when practicable, native language 
assessments. States must assess, in English, a LEP student's 
achievement in reading/language arts if the student has been in schools 
in the United States (except Puerto Rico) for three or more consecutive 
years, although students may be assessed in reading/language arts in 
their native language beyond this point for two additional years if the 
LEA determines, on a case-by-case basis, that assessment in the native 
language would likely yield more accurate and reliable information on 
what the student knows and can do. States must also annually assess a 
LEP student's English language proficiency (that is, a student's 
reading, writing, speaking, and listening skills in English) in grades 
K-12.
    Current Regulations: The current regulations essentially repeat the 
statutory requirements.
    Proposed Regulations: The proposed regulations would provide a new 
assessment option for a subset of LEP students--recently arrived LEP 
students who have attended schools in the United States (not including 
Puerto Rico) for less than 10 months. Under proposed Sec.  200.6(b)(4), 
a State would be able to exempt recently arrived LEP students from one 
administration of the State's reading/language arts assessment. 
Recently arrived students would still be required to participate in the 
State's mathematics assessment and the ELP assessment.
    The proposed regulations also make clear that, in determining the 
amount of time before a LEP student must take the State's reading/
language arts assessment in English, this ``transitional year'' must be 
counted as the first of the three years in which a LEP student may take 
the reading/language arts assessment in his or her native language, 
even though the student does not, in fact, take the reading/language 
arts assessment at all.
    Reasons: In proposing these amendments to Sec.  200.6, we recognize 
that taking a State's reading/language arts assessment, even with 
accommodations, requires a certain level of English language expertise. 
This expertise is essential for LEP students to participate 
meaningfully in the reading/language arts assessment and to receive a 
valid and reliable assessment score. Absent native language assessments 
(which in many cases are not practicable to create) and without this 
flexibility, recently arrived LEP students would be required to take a 
reading/language arts test that does not produce useful information. 
This is a different situation than a mathematics assessment, for which 
accommodations are available, to enable recently arrived LEP students 
to demonstrate content mastery in mathematics. With this new 
flexibility regarding participation in a State's reading/language arts 
assessment, recently arrived LEP students will be able to participate 
in the State's assessment system in a manner that makes sense given 
their educational experiences and English language skills.
    In developing the proposed regulation, the Department considered 
several options, including the possibility of linking eligibility for 
the one-time exemption to a State's determination that a student is 
non-English proficient (NEP) based on the State's definition. However, 
we concluded that linking the exemption to the period a LEP student has 
attended U.S. schools was more appropriate. The intent of the proposed 
regulation is to ensure that recently arrived LEP students receive 
instruction in U.S. schools for a period roughly equivalent to a school 
year prior to including their assessment results in AYP calculations. 
Linking the exemption to a determination that a student is NEP would 
potentially include a much wider range of students for an indefinite 
period of time.

Section 200.20 Making Adequate Yearly Progress

    Statute: Under Section 1111(b)(2) of Title I, each State must 
define AYP in a manner that measures the achievement of each of various 
student groups, including LEP students. When determining which 
subgroups to consider in a school, LEA, or State accountability 
decision, the State must identify the minimum number of students in a 
category that is sufficient for making statistically valid and reliable 
decisions. In addition to ensuring that each subgroup meets or exceeds 
State objectives in reading/language arts and mathematics achievement, 
each school and LEA must demonstrate that not less than 95 percent of 
each student subgroup takes the reading/language arts and mathematics 
assessment in order to make AYP.
    Current Regulations: The current regulations clarify how a school 
or LEA makes AYP by specifying how to determine whether the school or 
LEA met its goals for reading/language arts and mathematics achievement 
and how to calculate participation rates. The current regulations 
explain that a State must determine the number of students in a group 
that is required in order for the assessment scores of the group to 
yield statistically reliable information.
    Proposed Regulations: The proposed regulations in Sec.  200.20(f) 
would change the requirements for how SEAs are to include the following 
students in AYP determinations: (1) Recently arrived LEP students, and 
(2) students who were LEP but who have attained English proficiency and 
exited the LEP category

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as the State defines that category (i.e., former LEP students).
    For recently arrived LEP students, a State would not be required to 
include their results from the mathematics or (if taken) reading/
language arts assessments in AYP decisions, even if the student has 
been enrolled for a full academic year as defined by the State. If 
recently arrived LEP students take either the ELP assessment or the 
State's reading/language arts assessment, Sec.  200.20(f)(1)(i) of the 
proposed regulations would allow the State to count these students as 
participants toward meeting the 95 percent participation requirement 
for AYP determinations in reading/language arts. Similarly, Sec.  
200.20(f)(1)(i) of the proposed regulations would allow recently 
arrived LEP students to be counted as participants for AYP 
determinations in mathematics when they take the mathematics 
assessment.
    Under proposed Sec.  200.20(f)(2), in determining AYP for the LEP 
subgroup, a State also may include the assessment scores from the 
reading/language arts and mathematics assessments for students who were 
LEP but who have exited the LEP category during the last two years. The 
proposed regulations would not, however, require a State to include 
these former LEP students in counts to determine whether a school or 
LEA has a sufficient number of LEP students to yield statistically 
reliable information under Sec.  200.7(a), nor do they count for Title 
III funding. When reporting the achievement results on State and LEA 
report cards, as required under section 1111(h)(1)(C), Sec.  
200.20(f)(2)(iii) of the proposed regulations would not allow results 
of former LEP students to be included as part of the LEP subgroup 
because there is a difference between data used for system 
accountability and data used for providing information to parents.
    Reasons: In proposing amendments to Sec.  200.20, we are addressing 
concerns about the instructional needs of students in the LEP subgroup. 
If recently arrived LEP students take the reading/language arts 
assessment, a State would not be required to include results from that 
assessment in AYP calculations. The purpose of this proposal is to 
provide maximum flexibility in a State's assessment and accountability 
policies. A State that wants recently arrived LEP students to 
participate in the reading/language arts assessment may have them do so 
without having their results affect a school's or LEA's AYP rating. 
Similarly, when recently arrived LEP students take the mathematics 
assessment, the State is not required to include those results in AYP 
calculations. This approach ensures that States and LEAs may make 
individual assessment decisions for the benefit of these recently 
arrived LEP students (e.g., whether a student takes the reading/
language arts assessment or not) without affecting a school's or LEA's 
AYP rating.
    The LEP subgroup is one whose membership can change from year to 
year as English proficient students exit and new students enter the LEP 
subgroup. Because LEP students exit the LEP subgroup once they attain 
English language proficiency, school assessment results may not reflect 
the gains that LEP students have made in academic achievement. 
Therefore, these regulations address such concerns by allowing States 
additional flexibility when making AYP decisions, particularly with 
respect to LEP students.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from existing statutory and regulatory requirements. 
Both the statute and existing regulations require States to include LEP 
students in assessments and AYP calculations. There are no additional 
costs associated with the proposed regulations. There are benefits 
because the proposed regulations provide additional flexibility for 
assessing recently arrived LEP students and for including in AYP 
calculations both recently arrived LEP students and LEP students who 
have become English proficient and have exited the LEP category. The 
costs and benefits of the underlying provisions were discussed in the 
Title I final regulations published in the Federal Register on December 
2, 2002 (67 FR 71717).
    We have determined that this regulatory action would not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:

     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interfere with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
Sec.  200.13 Adequate yearly progress in general.)
     Could the description of the proposed regulations in the 
``Supplementary Information'' section of this preamble be more helpful 
in making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    These provisions require States and LEAs to take certain actions to 
improve student academic achievement. The Department believes that 
these activities will be financed through the appropriations for Title 
I and other Federal programs and that the responsibilities encompassed 
in the law and regulations will not impose a financial burden that 
States and LEAs will have to meet from non-Federal resources.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

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: 
www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free

[[Page 35465]]

at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), 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: www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number: 84.010 Improving 
Programs Operated by Local Educational Agencies)

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Children, 
Education of children with disabilities, Education of disadvantaged 
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indians--education, 
Infants and children, Institutions of higher education, Juvenile 
delinquency, Local educational agencies, Migrant labor, Nonprofit 
private agencies, Private schools, Public agencies, Reporting and 
recordkeeping requirements, State-administered programs, State 
educational agencies.

    Dated: June 21, 2004.
Rod Paige,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 200 of title 34 of the Code of Federal Regulations as 
follows:

PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE 
DISADVANTAGED

    1. The authority citation for part 200 continues to read as 
follows:

    Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.

    2. Amend Sec.  200.6 as follows:
    A. Revise the introductory text in both Sec.  200.6 and paragraph 
(b)(1)(i); and
    B. Add a new paragraph (b)(4).
    The revisions and addition read as follows:


Sec.  200.6  Inclusion of all students.

    A State's academic assessment system required under Sec.  200.2 
must provide for the participation of all students in the grades 
assessed in accordance with this section.
* * * * *
    (b) * * *
    (1) * * *
    (i) Consistent with paragraphs (b)(2) and (b)(4) of this section, 
the State must assess limited English proficient students in a valid 
and reliable manner that includes--
* * * * *
    (4) Recently arrived students with limited English proficiency. (i) 
A recently arrived student is a student with limited English 
proficiency who has attended school in the United States (not including 
Puerto Rico) for less than ten months.
    (ii)(A) A State may exempt a recently arrived student from one 
administration of the State's reading/language arts assessment under 
Sec.  200.2.
    (B) If the State does not assess a recently arrived student on the 
State's reading/language arts assessment, the State must count this 
year as the first of the three years in which the student may take the 
State's reading/language arts assessment in a native language under 
section 1111(b)(3)(C)(x) of the Act.
    (iii) A State must assess a recently arrived student using--
    (A) An assessment of English language proficiency under paragraph 
(b)(3) of this section; and
    (B) The State's mathematics assessment under Sec.  200.2.
* * * * *
    3. Amend Sec.  200.20 as follows:
    A. Revise the introductory text of paragraphs (a)(1), (b), and 
(c)(1); and
    B. Add a new paragraph (f).
    The revisions and addition read as follows:


Sec.  200.20  Making adequate yearly progress.

* * * * *
    (a)(1) A school or LEA makes AYP if, consistent with paragraph (e) 
of this section--
* * * * *
    (b) If students in any group under Sec.  200.13(b)(7) in a school 
or LEA do not meet the State's annual measurable objectives under Sec.  
200.18, the school or LEA makes AYP if, consistent with paragraph (f) 
of this section--
* * * * *
    (c)(1) A school or LEA makes AYP if, consistent with paragraph (f) 
of this section--
* * * * *
    (f)(1) In including recently arrived students, as defined under 
Sec.  200.6(b)(4), in determining AYP, a State may--
    (i) Count recently arrived students as participants under paragraph 
(c)(1)(i) of this section if they take--
    (A) Either an assessment of English language proficiency under 
Sec.  200.6(b)(3) or the State's reading/language arts assessment under 
Sec.  200.2; and
    (B) The State's mathematics assessment under Sec.  200.2; and
    (ii) Choose not to include recently arrived students' scores on 
either or both the mathematics or reading/language arts assessment in 
determining AYP under paragraph (a) or (b) of this section, even if 
these students have been enrolled in the same school or LEA for a full 
academic year as defined by the State.
    (2)(i) In determining AYP for the subgroup of limited English 
proficient students, a State may include, for up to two years, students 
who were limited English proficient but who no longer meet the State's 
definition.
    (ii) If the State counts students under paragraph (f)(2)(i) of this 
section, the State is not required to--
    (A) Count those students in the limited English proficient subgroup 
to determine if the number of students is sufficient to yield 
statistically reliable information under Sec.  200.7(a);
    (B) Assess those students' English language proficiency under Sec.  
200.6(b)(3); or
    (C) Provide English language services to those students.
    (iii) If the State counts students under paragraph (f)(2)(i) of 
this section, the State may not report those students in the limited 
English proficient subgroup under section 1111(h)(1)(C)(i) and 
(h)(2)(B) (reporting achievement data by subgroup on State and LEA 
report cards) of the Act.

[FR Doc. 04-14358 Filed 6-23-04; 8:45 am]
BILLING CODE 4000-01-P