[Federal Register Volume 73, Number 86 (Friday, May 2, 2008)]
[Notices]
[Pages 24266-24272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9708]



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DEPARTMENT OF EDUCATION


Title III of the Elementary and Secondary Education Act of 1965 
(ESEA), as Amended by the No Child Left Behind Act of 2001 (NCLB)

AGENCY: Office of English Language Acquisition, U.S. Department of 
Education.

ACTION: Notice of proposed interpretations.

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SUMMARY: The Secretary of Education (Secretary) proposes 
interpretations of several provisions of Title III of the ESEA 
regarding the annual administration of English language proficiency 
(ELP) assessments to limited English proficient (LEP) students served 
by Title III, the establishment and implementation of annual measurable 
achievement objectives (AMAOs) for States and subgrantees receiving 
Title III funds, and State and local implementation of Title III 
accountability provisions.
    Comments: The Department is accepting comments on this notice of 
proposed interpretations in order that the Department may provide 
additional clarification, detail, or guidance regarding these 
interpretations before issuing a notice of final interpretations.

DATES: We must receive your comments on or before June 2, 2008.

ADDRESSES: Address all comments about this notice of proposed 
interpretations to Richard L. Smith, Office of English Language 
Acquisition, U.S. Department of Education, 400 Maryland Avenue, SW., 
Room 10087, Potomac Center Plaza, Washington, DC 20202, Attention: 
Comments on Title III Notice of Proposed Interpretations.
    If you prefer to send your comments through the Internet, use the 
following address: LEP.Partnership@ed.gov.
    You must use the term ``Comments on the Title III Notice of 
Proposed Interpretations'' in the subject line of your electronic 
message.

FOR FURTHER INFORMATION CONTACT: Richard L. Smith. Telephone: (202) 
245-7100.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) 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.
    During and after the comment period, individuals may inspect all 
public comments by appointment with the contact person listed under FOR 
FURTHER INFORMATION CONTACT. The comments will be available for 
distribution electronically, to the extent feasible, and will be 
available at the Department's Office of English Language Acquisition, 
U.S. Department of Education, 550 12th Street, SW., Room 10081, Potomac 
Center Plaza, 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. 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. If you want to schedule an 
appointment for this type of aid, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:
    Background: The intent of this notice is to ensure that all States 
understand and implement the requirements of Title III in accordance 
with the Secretary's ``bright-line'' principles of NCLB--including 
annual assessments of and accountability for all students--as they 
apply to the implementation of Title III.
    One of the key goals of Title III of the ESEA is to ensure that LEP 
students attain English language proficiency, attain high levels of 
academic achievement in English, and meet the same challenging State 
academic content and student academic achievement standards that all 
children are expected to meet. To achieve this goal, Title III grants 
provide States and their subgrantees \1\ with funds to implement 
language instruction educational programs to help LEP students acquire 
English and achieve at high levels in the core academic subjects. Title 
III subgrantees are required to use Title III funds to support (1) 
high-quality professional development designed to improve services to 
LEP students, and (2) high-quality language instruction educational 
programs that are designed to increase the English proficiency and 
academic achievement of LEP students. Title III does not require 
subgrantees to use any particular curriculum or approach to language 
instruction, except that the language instruction must be, as required 
in section 3113(b)(6) of the ESEA, tied to scientifically based 
research on teaching LEP students and demonstrated to be effective.
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    \1\ The majority of ``subgrantees'' under Title III are local 
educational agencies (LEAs). However, ``subgrantees'' may also 
include groups of LEAs in which one or more of the LEAs is too small 
to be individually eligible to apply for a Title III grant; these 
LEAs may join together to form consortia in order to qualify to 
receive the minimum amount of a Title III subgrant, $10,000.
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    The enactment of NCLB marked the first time States were required to 
establish ELP standards for LEP students. Under the statute, States 
must assess, on an annual basis, the progress of LEP students enrolled 
in language instruction educational programs funded under Title III.\2\ 
States must also define annual measurable achievement objectives 
(AMAOs) and measure improvements in the development of and attainment 
of English proficiency by LEP students served by Title III.
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    \2\ In addition to the ELP assessment provisions in Title III, 
Title I of the ESEA requires an annual assessment of all LEP 
students that measures LEP students' speaking, listening, reading, 
and writing skills in English.
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    The Department recognizes that the specific definition of the term 
``LEP students served by Title III'' and similar terms used throughout 
this notice may vary across States and subgrantees based on the design 
of particular language instruction educational programs and 
professional development programs implemented using Title III funds. 
For example, States and subgrantees may, for Title III accountability 
purposes, define ``Title III-served LEP students'' or ``LEP students 
served by language education instructional programs under Title III'' 
as all LEP students in an LEA or subgrantee jurisdiction. States and 
subgrantees may also define ``Title III-served LEP students'' as only 
those LEP students within an LEA or subgrantee jurisdiction who 
specifically receive Title III-funded services.\3\ The Department 
intends that the interpretations proposed in this notice apply to all 
such definitions.
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    \3\ For accountability purposes, the Department expects States 
to have a clear policy for how subgrantees define which students are 
considered to be served by Title III. States should articulate clear 
guidance to subgrantees about how they are expected to identify who 
is served by Title III programs so that Title III-served LEP 
students are identified consistently across subgrantees with similar 
program designs.
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    As States have implemented Title III assessment and accountability 
requirements, they have faced numerous challenges and posed a number of 
questions to the Department about the law's requirements. This notice 
of proposed interpretations is intended to help States address those 
challenges by answering their questions and providing them with 
guidance on the implementation of Title III consistent with the basic 
tenets and goals of NCLB.
    The following is a brief summary of the basic requirements of Title 
III to which the proposed interpretations apply. First, each State's 
Title III ELP standards must be based on four

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language domains--speaking, listening, reading, and writing--and be 
aligned with the achievement of challenging academic content and 
student achievement standards (section 3113(b)(2)). In addition, each 
State's ELP assessment must be administered annually to students served 
by Title III (section 3113(b)(3)(D)), be valid and reliable (section 
3122(a)(3)(A)(ii)), and provide for the evaluation of LEP students' 
levels of speaking, reading, writing, listening, and comprehension in 
English (section 3121(d)(1)).\4\ Title III requires that States ensure 
that all subgrantees comply with the requirement to annually assess the 
English proficiency of all LEP students, consistent with section 
1111(b)(7) of the ESEA.
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    \4\ The Department permits States to derive a score to reflect 
LEP student performance in the domain of comprehension based on the 
four assessment domains required by both Title I (section 
1111(b)(7)) and Title III (section 3113(b)(3)(D))--speaking, 
listening, reading, and writing--rather than testing the performance 
of LEP students separately in the domain of comprehension.
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    Under Title III, States and their subgrantees are accountable for 
meeting AMAOs that relate to LEP students' development and attainment 
of English proficiency and academic achievement. Each State must set 
AMAO targets, make determinations on whether subgrantees are meeting 
those targets, and report annually on subgrantees' performance in 
meeting those targets.
    Title III accountability provisions apply to the States and to 
subgrantees. Title III accountability requirements do not, in general, 
apply to individual schools and do not apply to individual LEP 
students.
    The first required AMAO (AMAO 1) focuses on the extent to which LEP 
students served by Title III in a State and a particular LEA are making 
progress in learning English. The second AMAO (AMAO 2) focuses on the 
extent to which LEP students served by Title III in a State and in 
their LEA are attaining proficiency in English. Both of these AMAOs use 
measures derived, in large part, from the results of the required 
annual State ELP assessment. The third AMAO (AMAO 3) is based on 
whether the LEP subgroup in the State and in its LEA makes adequate 
yearly progress (AYP) in reading/language arts and mathematics, as 
defined by the State under section 1111(b)(2)(B) in Title I of the 
ESEA.\5\
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    \5\ For Title III accountability purposes, AMAO 3--or AYP--is 
calculated at the subgrantee/LEA and State levels. For Title I 
accountability purposes, AYP is also calculated at the school level.
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    Title III requires subgrantees to notify parents of LEP students 
participating in language instruction educational programs funded under 
Title III if the subgrantee does not meet all three of the AMAO 
targets. If a subgrantee does not meet the State's AMAO targets for two 
consecutive years, the subgrantee is required to develop and submit an 
improvement plan to the State and the State is required to provide 
technical assistance to the subgrantee in developing the improvement 
plan. If a subgrantee does not meet AMAO targets for four consecutive 
years, the subgrantee is required to undertake corrective actions.
    In developing this notice, the Department examined current State 
policies and practices regarding implementation of Title III assessment 
and accountability requirements, and the extent to which these may have 
been implemented inconsistently or improperly.\6\ The Department also 
considered issues and concerns identified during consultations with 
State representatives and experts.
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    \6\ Under 34 CFR 80.40(a), States are responsible for oversight 
and monitoring of their subgrantees' performance under the subgrant 
as a way of ensuring legislative and regulatory compliance with 
Title III. For more information, see http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html.
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Proposed Interpretations

1. Annual ELP Assessments of LEP Students

    Background: Section 3113(b)(3)(D) of the ESEA requires SEAs 
receiving grants under Title III, part A to ensure that eligible 
entities receiving a subgrant annually assess the English proficiency 
of all LEP students participating in a Title III-funded program, 
consistent with section 1111(b)(7) of Title I of the ESEA. Section 
1111(b)(7) requires States, in their plans under Title I, to 
demonstrate that LEAs in the State provide an annual assessment of 
English proficiency that measures the oral language (speaking and 
listening), reading, and writing skills of all LEP students in the 
schools served by the SEA.
    Interpretation: The Secretary proposes to interpret section 
3113(b)(3)(D) to require that all LEP students be assessed annually 
with an assessment or assessments that measure each and every one of 
the language domains of speaking, listening, reading, and writing.
    Explanation: Some States have asked the Department to allow them to 
exempt a LEP student from an annual ELP assessment in any domain in 
which the student has achieved proficiency. For example, States have 
requested that a LEP student who scores proficient in the domains of 
speaking and listening, but not in reading or writing, continue to be 
annually assessed only in reading and writing, but not in speaking and 
listening, until such time as the student becomes proficient in all 
domains.
    Based on the Secretary's proposed interpretation, States would not 
be able to forgo assessing a LEP student in any domain of the required 
annual ELP assessment. LEP students who score at or above proficient in 
a domain would have to continue to be assessed in all four domains of 
language as long as the student is identified as LEP. States would not 
be able to, in effect, ``bank'' the proficient scores of LEP students 
on ELP assessments in a particular domain until such time as the 
student is proficient in all domains and exits the LEP subgroup. This 
proposed interpretation is consistent with the clear language of the 
ESEA, which requires, without exception, that LEP students be assessed 
in all domains on an annual basis.

2. Use of Annual ELP Assessment Scores for AMAOs 1 and 2

    Background: Section 3121(d)(1) of Title III requires States to 
evaluate the progress of LEP students toward attaining English 
proficiency, including LEP students' levels of comprehension, speaking, 
listening, reading, and writing in English. Section 3122(a)(3)(A)(i) 
and (ii) of Title III requires that States develop AMAOs that include 
annual increases in the number or percentage of children making 
progress in learning English and annual increases in the number or 
percentage of students attaining English proficiency by the end of each 
school year. States have asked the Department to provide guidance on 
the extent to which they may take into account student performance in 
each of the English language domains when setting the accountability 
targets for making progress in learning English (AMAO 1) and 
demonstrating proficiency in English (AMAO 2) under Title III.
    Interpretation for AMAO 1: With regard to AMAO 1, the Secretary 
proposes to interpret Title III to allow States to base their student 
performance expectations and accountability (i.e., AMAO 1) targets for 
progress on assessment results derived from either (1) separate student 
performance levels or scores in each of the language domains or (2) a 
single composite score or performance level derived by combining 
performance scores across domains, so long as such a composite score 
can be demonstrated to be a valid and effective measure of a student's 
progress in each of the English language proficiency domains. The 
Secretary also

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proposes to interpret Title III to allow States to determine their AMAO 
1 targets based on progress in one or more of the language domains, 
rather than requiring student progress separately in each and every one 
of the language domains, so long as the targets provide for meaningful 
progress toward attaining English language proficiency.
    Explanation for AMAO 1: Some States previously may have been 
advised that, in setting AMAO targets for the State and for subgrantees 
regarding progress in learning English (AMAO 1), their accountability 
targets had to reflect LEP student progress in each and every one of 
the separate five domains for each and every annual ELP assessment 
administration. Under this proposed interpretation, however, States 
would have more discretion to set student performance expectations and 
accountability targets for AMAO 1, so long as the targets provide for 
meaningful progress toward attaining English language proficiency and 
overall student performance on the State's ELP assessment is improving. 
In the case of States measuring progress of LEP students using separate 
ELP domain scores, progress measures could include improvements in some 
but not all domains for AMAO 1. In the case of States using composite 
ELP assessment scores, progress measures could include improvements in 
some but not all domains, so long as a student's overall performance on 
the ELP assessment is improving. The Department recognizes that, given 
the nature of language acquisition, LEP students may make meaningful 
progress in learning English without necessarily making progress in 
each and every domain in a given school year. For the purposes of Title 
III accountability, this proposed interpretation would allow AMAO 1 
targets to recognize such progress.
    Interpretation for AMAO 2: With regard to AMAO 2, attaining English 
language proficiency, the Secretary proposes to interpret Title III to 
allow States to base their student performance expectations and 
accountability targets for attainment on assessment results derived 
from either (1) separate student performance levels or scores in each 
of the language domains or (2) a single composite score or performance 
level derived by combining performance scores across domains, provided 
that such a composite score can be demonstrated to be a valid and 
effective measure of a student's proficiency in each of the English 
language proficiency domains.
    In setting student performance expectations and accountability 
targets for attaining proficiency in English (AMAO 2), it is the 
Secretary's proposed interpretation of Title III that a LEP student 
must score proficient or above in each and every language domain 
required under Title III in order to be considered to have ``attained 
proficiency'' on a State's ELP assessment. If a State's ELP assessment 
generates a composite score, the State would have to demonstrate that 
an overall proficient ELP score represents proficiency in all domains 
for students served by Title III.
    Explanation for AMAO 2: The Department has received questions from 
States about whether students must attain proficiency in each language 
domain required under Title III to be considered to have scored as 
proficient overall on the State ELP assessment required under Title 
III. This proposed interpretation is intended to clarify for States the 
distinction between the use of assessment scores for AMAO 1 and AMAO 2.
    With respect to measuring progress, the Department recognizes that, 
due to the nature of language acquisition, it is possible for LEP 
students to make meaningful progress in learning English without evenly 
and consistently demonstrating progress in each of the language domains 
Title III requires for evaluating LEP student performance. Therefore, 
under this proposed interpretation, States would have discretion in how 
they factor LEP student progress in each domain and across domains into 
overall AMAO 1 targets. However, with respect to AMAO 2, this measure 
is intended to mark a completion point at which LEP students have 
acquired adequate skills in each of the language domains to be 
considered to have attained ``proficiency'' in English. Proficiency in 
English in each domain is critical to succeeding academically when the 
language of instruction is English. This is consistent with the 
definition of LEP, in section 9101(25) of the ESEA, which provides that 
a student can be LEP if the student's difficulty in reading, speaking, 
writing, or understanding English causes the student difficulty in 
achieving academically when the language of instruction is English.
    Therefore, it is the Secretary's proposed interpretation that 
students must reach, and AMAO 2 targets must reflect, a proficient 
level of performance in each and every domain of English required to be 
evaluated under Title III.

3. Students Included in Title III Accountability

    Background: Section 3122(a)(1) of the ESEA requires States to 
develop AMAOs for LEP students served under Title III. The AMAOs relate 
to students' development and attainment of English proficiency while 
meeting challenging State academic content and student academic 
achievement standards required by section 1111(b)(1) of Title I of the 
ESEA. The AMAOs must include-- (1) At a minimum, annual increases in 
the number or percentage of LEP children making progress in learning 
English; (2) at a minimum, annual increases in the number or percentage 
of LEP children attaining English proficiency by the end of each school 
year, as determined through a valid and reliable assessment of English 
proficiency, consistent with section 1111(b)(7); and (3) making AYP for 
the LEP subgroup, as described in section 1111(b)(2)(B) of Title I of 
the ESEA. States must set annual targets for each AMAO and measure the 
progress of each subgrantee in meeting the targets.
    The Department is aware that some States treat AMAO 1 and AMAO 2 as 
mutually exclusive, such that LEP students served under Title III are 
included in either AMAO 1 or AMAO 2, but not both. The Department is 
also aware that some States identify a subgroup of Title III-served 
students as ``eligible'' to be included in AMAOs, which excludes some 
Title III-served LEP students from AMAO targets, calculations, and 
determinations.
    Interpretation: The Secretary proposes to interpret Title III to 
require that all LEP students served by programs under Title III be 
included in all AMAO targets, calculations, and determinations. In 
addition, the Secretary proposes to interpret Title III, consistent 
with Title I, as requiring all LEP students attending a public school 
within a State or subgrantee's jurisdiction--not only those LEP 
students served by Title III programs--to be included in targets, 
calculations, and determinations for purposes of determining whether a 
State or Title III subgrantee meets AMAO 3.
    Explanation: This proposed interpretation is consistent with the 
plain language of Title III, which makes no provision for excluding any 
LEP students from AMAO targets, calculations, and determinations. For 
AMAO 1 and AMAO 2, while the Department recognizes that States and 
subgrantees have discretion, for Title III purposes, to define ``Title 
III-served LEP students'' or ``LEP students served by language 
education instructional programs under Title III'' as all LEP students 
in an LEA or as only LEP students specifically receiving Title III-
funded services, this proposed interpretation would mean that the 
performance of all LEP students who a

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State and subgrantee define as served under Title III must be included 
in accountability determinations for both AMAO 1 and AMAO 2.
    In the case of AMAO 3, this proposed interpretation would mean that 
all LEP students--not only those LEP students specifically served by 
Title III programs--would be required to be included in targets, 
calculations, and determinations for purposes of determining whether a 
State or Title III subgrantee met the AMAO.\7\ For Title III 
subgrantees, this means that all LEP students in the subgrantee's 
jurisdiction would be required to be included in AMAO 3. For States, 
this would mean that all LEP students in the LEP subgroup Statewide 
would be required to be included in AMAO 3. This proposed 
interpretation is consistent with the provisions of Title I, which 
require that all LEP students be included in accountability 
determinations, including AYP determinations.\8\
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    \7\ In addition, States may choose to use the flexibility 
granted to States by the Secretary to include former LEP students in 
AYP calculations for the LEP subgroup for up to two years after such 
students have exited the LEP subgroup. See 34 CFR 
200.20(f)(2)(i)(A); http://www.ed.gov/legislation/FedRegister/finrule/2006-3/091306a.html and http://www.ed.gov/policy/elsec/guid/lepguidance.doc.
    \8\ We note that under our regulations in 34 CFR 200.20(f), some 
LEP students may not be included in AYP determinations because of 
their recently arrived status. Furthermore, if a student has not 
been enrolled in the same school or LEA for a full academic year as 
defined by the State, such a student may be excluded from AYP 
calculations. However, other than these exceptions permitted in 
calculating AYP under Title I, this proposed interpretation provides 
that all LEP students must be included in Title I accountability 
determinations and, therefore, in AMAO 3 determinations. For more 
information on recently arrived LEP students see 34 CFR 
200.20(f)(2)(i)(A); http://www.ed.gov/legislation/FedRegister/finrule/2006-3/091306a.html. For more information on other 
exceptions permitted in AYP calculations, such as full academic year 
enrollment, see Title I guidance at http://www.ed.gov/policy/landing.jhtml.
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4. Exclusion of LEP Students ``Without Two Data Points'' From AMAO 1

    Background: Section 3122(a)(3)(A)(i) of the ESEA requires States to 
develop AMAOs for LEP student progress in learning English. Thus, AMAO 
1 requires that States and subgrantees, at a minimum, show annual 
increases in the number or percentage of LEP children making progress 
in learning English.
    In paragraph 3 of this notice, the Department has set forth its 
proposed interpretation that all LEP students served by Title III must 
be included in Title III accountability determinations. In this 
paragraph, the Department addresses the more specific question of 
whether States would be permitted to exclude from AMAO 1 calculations 
and determinations LEP students who do not have ``two data points,'' 
that is, students who have not participated in two consecutive and 
consistent administrations of the annual ELP assessment required under 
Title III.
    Interpretation: The Secretary proposes to interpret the requirement 
in section 3122(a)(3)(A)(i) of the ESEA to include all LEP students 
served by Title III in measurements of student progress in English 
(AMAO 1). This would mean that all such students would have to be 
included regardless of whether they have participated in at least two 
consecutive and consistent annual administrations of an ELP assessment 
required under section 3113 of the ESEA. Under this proposed 
interpretation, all LEP students served by programs under Title III 
would have to be included in AMAO 1 determinations.
    If a State does not have the requisite two years of data for some 
LEP students served by Title III in the State, the State would be 
permitted to propose to the Department an alternative method of 
calculating AMAO 1. The Department would require that the alternative 
method for measuring progress under AMAO 1 be based on research on how 
LEP children acquire proficiency in English and include reliable 
measures of growth in English language proficiency.
    Under this proposed interpretation, the Secretary also would allow 
States to include criteria--in addition to progress on an annual ELP 
assessment--to be factored into progress determinations for AMAO 1, 
even for students who have participated in two consecutive 
administrations of the required annual ELP assessments.
    Explanation: To be consistent with NCLB's purpose to include all 
students in State assessment and accountability systems, the Department 
no longer would permit States and LEAs to exclude LEP students without 
two consecutive annual ELP assessment scores from AMAO 1 calculations 
and determinations. The Department recognizes, however, that there will 
be students who may not have attended a school long enough to have 
participated in two administrations of the required annual ELP 
assessment (e.g., highly mobile students or migrant students new to the 
country or to a State or school system). Accordingly, for these 
students, in the absence of data for two years from the State's ELP 
assessment, the Department would require States to propose to the 
Department an alternative method of calculating AMAO 1. To ensure 
accuracy and validity, this alternative method for measuring progress 
under AMAO 1 would need to be based on research on how LEP children 
acquire proficiency in English and include reliable measures of growth 
in English language proficiency. A State could, for example, propose to 
allow its subgrantees to use the results of ELP placement assessments 
or other local ELP assessments to measure progress for LEP students 
served by Title III who do not have two consecutive ELP assessment 
scores.
    The Secretary also would allow States to include criteria--in 
addition to progress on an annual ELP assessment--to be factored into 
progress determinations for AMAO 1, even for students who have 
participated in two consecutive administrations of the required annual 
ELP assessments. While the Department does not believe many States 
follow this practice, we believe it is important to permit this option 
for States that wish to factor additional relevant language acquisition 
data into progress measures. However, even if a State uses additional 
criteria, at a minimum Title III-served LEP students who have 
participated in two consecutive administrations of the required ELP 
assessments would be required to make progress on the ELP assessment to 
be counted towards a subgrantee meeting AMAO 1.

5. Attainment of English Language Proficiency and ``Exiting'' the LEP 
Subgroup

    Background: Section 3122(a)(3)(A)(ii) of the ESEA requires States 
to develop AMAOs for Title III-served LEP student attainment of 
proficiency in English, as determined through a valid and reliable 
assessment of English proficiency. AMAO 2 requires that States and 
subgrantees, at a minimum, show annual increases in the number or 
percentage of LEP children attaining English proficiency.
    The Department understands that some States are using criteria, in 
addition to the results of a valid and reliable ELP assessment, to 
determine whether subgrantees meet AMAO 2. The Department also 
understands that in many States, LEP students are now considered 
proficient in English for the purposes of Title III accountability 
determinations but are not considered proficient for the purposes of 
determining whether such students are prepared to ``exit'' the LEP 
subgroup under Title I or are no longer eligible for services under 
Title III. For example, the Department has learned that some States 
require LEP students to demonstrate proficiency on content assessments 
before exiting the LEP subgroup. Some

[[Page 24270]]

States also consider LEP students' achievement in content classes when 
determining whether the students will exit the LEP subgroup.
    Interpretation: It is the Secretary's proposed interpretation of 
section 3122(a)(3)(A)(ii) of the ESEA that State definitions of English 
language proficiency for the purposes of setting targets for AMAO 2--
increasing the number or percentage of LEP students attaining English 
language proficiency--be consistent with and reflect the same criteria 
States use to determine that students from the LEP subgroup no longer 
need services under Title III and are prepared to exit the LEP subgroup 
for Title I accountability purposes.\9\
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    \9\ States must define AMAO 2 criteria consistently with the 
criteria the State uses to determine that students from the LEP 
subgroup are prepared to exit LEP status for Title I accountability 
purposes. However, AMAO 2 calculations do not include former LEP 
students who, while they have exited the LEP subgroup, may still be 
included in the subgroup for two years for the purposes of Title I 
AYP calculations.
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    Explanation: This proposed interpretation would not require States 
to change their exit criteria for LEP students. Under this proposed 
interpretation, the Secretary would continue to permit States and 
subgrantees to use criteria in addition to ELP assessment results to 
determine a student's LEP status, as long as those criteria are applied 
consistently across all subgrantees in a State. However, this proposed 
interpretation requires that States make their AMAO 2 targets, 
calculations, and determinations consistent with their determination of 
LEP status, such that a student considered ``proficient'' in English 
for the purposes of AMAO 2 and Title III accountability would also 
necessarily be prepared to exit the LEP subgroup based on the State's 
definition of LEP under Title I and its criteria for determining when a 
LEP student is no longer in need of a language instruction educational 
program.
    Likewise, any additional criteria a State uses under Title I for 
determining when a LEP student exits the LEP subgroup would have to be 
incorporated into that State's criteria for AMAO 2.
    The Secretary believes that if a State determines students to be 
eligible for Title III services because such students have limited 
proficiency in English, then the criteria for attaining proficiency for 
AMAO 2 should be consistent with the criteria the State establishes for 
determining that LEP students no longer need Title III services. Thus, 
under the proposed interpretation, students would not be considered 
proficient for the purposes of AMAO 2 until they are also considered 
proficient by the State for the purposes of exiting the LEP subgroup, 
i.e., students would have to be proficient on a State's ELP assessment 
and meet any other criteria used by a State to determine that a student 
can exit the LEP subgroup.

6. Use of Minimum Subgroup Sizes in Title III Accountability

    Background: Section 3122(a)(3)(A)(ii) of Title III requires that 
States' AMAOs for LEP student proficiency in English be determined by a 
valid and reliable assessment of English proficiency consistent with 
section 1111(b)(7) of Title I of the ESEA.
    States have asked the Department to provide guidance on whether 
States may apply minimum subgroup sizes to the AMAO calculations and 
determinations. It is also the Department's understanding that numerous 
States are already implementing minimum subgroup size policies as part 
of their AMAO determinations.
    Interpretation: The Secretary proposes to interpret section 
3122(a)(3)(A) of the ESEA to permit States to apply minimum subgroup 
sizes to AMAO calculations and determinations under Title III, 
consistent with the minimum subgroup size policies that the State 
applies to AYP determinations for the LEP subgroup and that have been 
approved by the Department in the State's Accountability Workbook for 
Title I.
    Explanation: This proposed interpretation is based on the statutory 
requirement that AMAO determinations be made based on valid and 
reliable measures of student performance on ELP assessments. In this 
context, a minimum subgroup size reflects the number of Title III-
served LEP students who need to be enrolled in a district for the ELP 
assessment scores of those students, taken together, to be a reliable 
basis for making judgments about how that subgrantee is performing.
    The Department is not encouraging States to adopt minimum subgroup 
size policies for purposes of complying with Title III's accountability 
provisions and does not believe it will be necessary for most States to 
adopt such policies. Title III accountability requirements apply only 
at the LEA/subgrantee and State levels, not to individual schools, 
where there are often smaller numbers of LEP students or frequent 
fluctuations in student populations that might make use of small 
subgroup sizes necessary. Furthermore, LEAs with very small numbers of 
LEP students are not typically eligible for Title III grant funds, so 
this proposed interpretation would not affect them.
    However, under this proposed interpretation, a State would be 
permitted to apply the same minimum subgroup size policies for Title 
III accountability purposes as the State applies to AYP determinations 
for the LEP subgroup and that have been approved by the Department in 
the State's Accountability Workbook for Title I. Policies designed to 
ensure that assessment results are used to make valid and reliable 
accountability determinations would have to be applied consistently 
across the State for Title III subgrantees. Under no circumstances 
could a State allow different subgrantees to use different minimum 
subgroup sizes for Title III accountability purposes.

7. All LEP Students, Adequate Yearly Progress, and AMAO 3

    Background: Section 3122(a)(3)(A)(iii) of the ESEA requires States 
to develop an AMAO for making adequate yearly progress for limited 
English proficient children as described in section 1111(b)(2)(B) of 
Title I of the ESEA.
    In paragraph 3 of this notice, the Department has set forth its 
proposed interpretation that all LEP students served by Title III must 
be included in Title III accountability determinations. In this 
paragraph, the Department addresses the more specific question of 
whether States must include all LEP students--whether or not served by 
Title III--in determining whether the State or the subgrantee has met 
AMAO 3.
    Interpretation: The Secretary proposes to interpret section 
3122(a)(3)(A)(iii) of the ESEA to require that the LEP students 
included in AMAO 3 be the same LEP students referred to in section 
1111(b)(2)(B) of Title I of the ESEA--that is, all students counted in 
the LEP subgroup for AYP purposes.\10\ The setting of targets, 
calculations, and determinations of AMAO 3 would not be limited to, or 
based on, only the expectations for LEP students served by Title III. 
It is the Secretary's proposed interpretation that for a subgrantee or 
State to meet AMAO 3, the subgrantee or State would have to meet the 
overall AYP achievement targets for the LEP subgroup in both reading 
and mathematics.
---------------------------------------------------------------------------

    \10\ This includes former LEP students if a State chooses to use 
the flexibility granted to States by the Secretary to include former 
LEP students for up to two years in AYP calculations.
---------------------------------------------------------------------------

    Explanation: Early interpretations of AMAO 3 by Department staff 
may have led some States to believe that they

[[Page 24271]]

needed to include only those LEP students receiving Title III services 
when calculating AYP for purposes of meeting AMAO 3. This may have led 
some States to make one AYP determination for Title III purposes and a 
separate AYP determination for Title I purposes.
    However, one of the key purposes of AMAO 3 is to tie accountability 
under Title III to accountability under Title I to ensure that LEP 
students achieve to the same high standards as all students are 
expected to meet in the core content areas. The Department believes 
that it is a more accurate interpretation of the statute that LEAs and 
subgrantees be required to use the same criteria for determining AYP 
under AMAO 3 as they use to determine AYP for the LEP subgroup at the 
LEA level under Title I.
    For Title III subgrantees, this proposed interpretation means that 
all LEP students in the subgrantee's jurisdiction would have to be 
included in AMAO 3 targets and calculations. For States, this proposed 
interpretation means that the Statewide LEP subgroup, representing all 
LEP students in the State, whether or not they are specifically served 
by Title III programs, would have to be included in AMAO 3 targets and 
calculations.
    The Department would consider other methods for calculating AMAO 3 
but only in special circumstances regarding Title III consortia, in 
which several otherwise separate LEAs have formed a group for funding 
purposes. (See the considerations outlined in paragraph 9 of this 
notice regarding accountability requirements for Title III consortia).

8. AMAOs and the Use of Cohorts

    Background: Section 3122(a)(2)(A) of the ESEA requires that AMAOs 
be developed in a manner that reflects the amount of time an individual 
student has been enrolled in a language instruction educational 
program.
    States have some discretion in how to consider the amount of time a 
student has had access to a language instruction educational program 
when developing AMAO targets. Some States have appropriately considered 
empirical data, student demographics, and instructional practices in 
setting overall AMAO targets for English language acquisition by LEP 
students served under Title III. To date, the Department also has 
allowed States to establish different AMAO targets for different 
``cohorts'' of LEP students based on characteristics of LEP students 
other than their access to English language instruction. For example, 
some States have established cohorts based on student proficiency 
level, the number of years a student has been in the United States, or 
the likelihood a student will reach proficiency in English in a given 
year.
    Interpretation: With this notice of interpretation, the Secretary 
proposes to interpret Title III to mean that (a) States may, but are 
not required to, establish ``cohorts'' for AMAO targets, calculations, 
and determinations; and (b) States may set separate AMAO targets for 
separate groups or ``cohorts'' of LEP students served by Title III 
based only on the amount of time (for example, number of years) such 
students have had access to language instruction educational programs.
    Explanation: The plain language of Section 3122(a)(2)(A) 
specifically provides that, in developing AMAOs, States must take into 
account the time a student has spent in a language instruction 
educational program. It would, therefore, be inconsistent with this 
statutory language to set different expectations for different LEP 
students served by Title III based on their current language 
proficiency, time in the United States, or any other criteria other 
than time in a language instruction educational program.
    Moreover, the purpose of the accountability requirements in Title 
III is to ensure that the language instruction educational programs in 
which LEP students are enrolled are accountable for helping all LEP 
students acquire English. Consistent with the basic principles of NCLB, 
under this proposed interpretation, subgrantee accountability would not 
be defined by the characteristics of LEP students themselves, but by 
the quality of, and student access to, language instruction educational 
programs that help LEP students learn English.
    To the extent that States choose to define ``cohorts'' of LEP 
students based on their time in language instruction educational 
programs to set, calculate, and determine AMAO 1 or AMAO 2, the State, 
LEA, or subgrantee would have to meet all of the AMAO targets applied 
to each cohort of LEP students.
    For example, if a State chooses to set two separate AMAO targets 
for progress (AMAO 1)--one for students with less than three years of 
access to a language instruction educational program and one for 
students with three or more years of access to a language instruction 
educational program--the State, LEAs, and subgrantees would have to 
meet both targets (i.e., both the target for students with less than 
three years of language instruction and the target for students with 
more than three years of language instruction) for that entity to meet 
the AMAO. For a subgrantee to meet an AMAO overall, all cohorts for 
which the State has set separate targets would have to meet the AMAO 
targets.

9. Determining AMAOs for Consortia

    Background: Section 3113(b)(5)(A) of Title III requires States to 
submit a plan to the Secretary describing how the agency will hold 
eligible entities accountable for meeting all AMAOs described in 
section 3122.
    Under Title III, an SEA can make subgrants to eligible entities, 
which include LEAs applying individually or as part of a group or 
consortium. Because section 3114(b) of the ESEA does not permit States 
to award Title III grants in amounts smaller than $10,000, a consortium 
arrangement can be used by a group of LEAs that are not individually 
eligible for Title III funds due to the small number of LEP students in 
their LEAs.
    To date, some Department officials have communicated to States that 
AMAOs must be calculated for consortia by compiling ELP assessment data 
and other applicable data from each of the LEAs in the consortium and 
determining, based on those data, whether the consortium has met the 
State's AMAOs. In the case of AMAO 3 (i.e., AYP for the LEP subgroup), 
Department staff, in some cases, have required States to aggregate and 
compile results across LEAs and compute a new ``consortium AYP.'' The 
Department is also aware that some States use different approaches to 
calculating AMAOs for various consortia within their States.
    Interpretation: The Secretary requires States to hold consortia, 
like any other eligible subgrantee, accountable for meeting AMAOs. 
However, the Secretary proposes to interpret Title III to allow States 
discretion on whether to treat subgrantees that consist of more than 
one LEA as a single entity or as separate entities for the purpose of 
calculating each of the three AMAOs required under Title III. States 
would, for example, be permitted to combine data across LEAs in a 
consortium or treat LEAs within a consortium separately for the 
purposes of accountability determinations. Except as described in the 
following paragraphs, a State would have to apply a uniform approach to 
all the consortia in the State.
    Explanation: The Department is proposing this interpretation to 
ensure that consortia are held accountable for meeting AMAOs. The 
Department believes this will best be accomplished if States adopt an 
approach that is generally consistent in implementing AMAOs for 
consortia within each State. To the degree a State does not adopt a

[[Page 24272]]

uniform approach, however, the Department would require a State to 
demonstrate that its method for calculating AMAOs for consortia would 
hold all consortia accountable for ensuring that LEP students acquire 
English language skills and make AYP.
    If a State intends to, among other things, combine assessment or 
other data, apply a minimum group size (``n''-size) or confidence 
intervals, create a ``consortium AYP'' calculation, or treat individual 
LEAs separately for the purposes of calculating AMAOs, the State would 
have to describe its methods and rationale in its State Title III plan.
    If a State intends to change the way it computes AMAOs for 
consortia, or wishes to propose criteria for using different approaches 
based on the characteristics of consortia, the Secretary would require 
the State to submit, for approval, an amendment to its Title III 
Consolidated State application, required under section 3113 of the 
ESEA.

10. Implementation of Corrective Actions Under Title III

    Background: Section 3122(b) of the ESEA describes the actions that 
a State and subgrantee must take if the subgrantee fails to meet Title 
III AMAOs for two or four consecutive years. If a State determines that 
a subgrantee has failed to make progress toward meeting the AMAOs for 
two consecutive years, the State must require the subgrantee to develop 
an improvement plan. The improvement plan must specifically address the 
factors that prevented the subgrantee from meeting the AMAOs. If a 
State determines that an eligible subgrantee has not met the AMAOs for 
four consecutive years, the State must--(1) Require the subgrantee to 
modify its curriculum, program, and method of instruction; or (2) 
determine whether the subgrantee should continue to receive Title III 
funds and require the subgrantee to replace educational personnel 
relevant to the subgrantee's failure to meet the objectives. 
Furthermore, section 3302 of Title III requires that parents of LEP 
students served by a subgrantee receive notice each year that a 
subgrantee does not meet AMAOs.
    Interpretation: Through this notice, the Secretary intends to 
reinforce the proper implementation of the requirements of section 
3122(b). First, the Department proposes to interpret this provision to 
require that all States comply with Title III requirements and make 
determinations for each of the three AMAO targets--making progress in 
English proficiency (AMAO 1), attaining English proficiency (AMAO 2), 
and AYP for the LEP subgroup (AMAO 3)--for every Title III subgrantee 
in the State for every school year. Not meeting any one of the three 
AMAO targets in a given school year constitutes not meeting AMAOs.
    The Department also proposes to interpret Title III to require that 
States annually inform their subgrantees when the subgrantees do not 
meet the State's AMAO targets--for each and every AMAO target the 
subgrantee does not meet. In addition, States and subgrantees must 
communicate AMAO determinations to the parents of LEP students served 
by subgrantees' Title III programs when subgrantees do not meet AMAOs.
    Explanation: In monitoring State compliance with Title III, the 
Department has become aware that some States have made AMAO 
determinations and reported those determinations to the Department, but 
have neither informed subgrantees of the AMAO determinations nor 
implemented any measures to address subgrantees' failures to meet the 
AMAOs. The purpose of including these interpretations in this notice is 
to be clear that States must communicate with Title III subgrantees and 
the parents of students served by or identified for services by the 
subgrantees about student progress and achievement, as well as provide 
parents with information about their child's education; these 
requirements are central to the purposes and goals of NCLB.
    Thus, the Department expects States, on an annual basis, to 
maintain evidence that (a) the State has informed a subgrantee if the 
subgrantee did not meet one or more AMAO, (b) the subgrantee has 
notified parents that it did not meet one or more AMAO, (c) the State 
has provided required technical assistance to the subgrantee, and (d) 
the State has implemented required measures to address the subgrantee's 
failure to meet the AMAOs. The Department may review this evidence as 
part of its annual desk audits and on-site monitoring in order to 
ensure that Title III corrective action requirements are being 
appropriately and effectively implemented.

Proposed Rulemaking

    Under the Administrative Procedure Act (5 U.S.C. 553) (APA), this 
notice is an interpretative rule and therefore is exempt from the 
notice-and-comment rulemaking requirements under the APA. 
Notwithstanding this exemption, the Department is soliciting public 
comment on these proposed interpretations so that we can provide 
additional details and clarifications in a notice of final 
interpretations.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.

Electronic Access to This Document

    You may review 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/news/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. 
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: http://www.gpoaccess.gov/nara/index.html.


    Dated: April 29, 2008.
Margaret Spellings,
Secretary of Education.
[FR Doc. E8-9708 Filed 5-1-08; 8:45 am]
BILLING CODE 4000-01-P