[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Notices]
[Pages 61828-61844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24702]
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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 final interpretations.
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SUMMARY: In a notice of proposed interpretations published on May 2,
2008, the Secretary of Education (Secretary) proposed 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. This notice of final interpretations provides the
Secretary's final interpretation for each of the ten proposed
interpretations.
DATES: These final interpretations are effective November 17, 2008.
FOR FURTHER INFORMATION CONTACT: Richard L. Smith, Office of English
Language Acquisition, U.S. Department of Education, 400 Maryland
Avenue, SW., room 5C-132, Washington, DC 20202. Telephone: (202) 401-
1402.
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.
SUPPLEMENTARY INFORMATION:
Background
General. The intent of this notice of final interpretations
(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 of the ESEA.
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.
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\1\ This notice refers to ``subgrantees'' throughout, consistent
with the language in Title III of the ESEA, to refer to entities
receiving Title III, Part A subgrants. The vast majority of
subgrantees under Title III are local educational agencies (LEAs).
However, subgrantees may also include groups of LEAs in which one or
more LEAs is too small to be individually eligible to apply for a
Title III grant; such 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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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 a specific or 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.
With the enactment of NCLB, States for the first time were required
to
[[Page 61829]]
establish ELP standards for LEP students. Under the ESEA, States also
must assess, on an annual basis, the progress of LEP students served by
language instruction educational programs funded under Title III.\2\
States must also set targets for three separate annual measurable
achievement objectives (AMAOs) and measure improvements in the
development 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-
designated students that measures LEP students' oral language
(speaking and listening), reading, and writing skills in English.
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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. The final
interpretations in this notice are 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. In developing this notice, the Department
examined current State policies and practices regarding the
implementation of Title III assessment and accountability requirements,
and the extent to which these may have been implemented inconsistently
or incorrectly.\3\ The Department also considered issues and concerns
submitted during the public comment period for this notice, as well as
issues raised in our consultations with Congressional staff, State
Title III and Title I representatives, and assessment and
accountability experts since the implementation of NCLB.
Defining Title III-Served LEP Students. The Department recognizes
that the specific meaning of the term ``LEP students served by programs
funded under 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, as well as the
design and capacity of State Title III data and accountability systems.
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\3\ Under 34 CFR 80.40(a), States are responsible for oversight
and monitoring of their subgrantees' performance. For more
information, see http://www.ed.gov/policy/fund/reg/edgarReg/edgar.html.
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However, at a minimum, under the ESEA, States and subgrantees must
define ``Title III-served LEP students'' as those LEP students within a
State's and subgrantee's jurisdiction, respectively, who directly
receive Title III-funded services. The Department recognizes that, for
practical reasons, including data system capacity and the nature of
language instruction educational programs and professional development
funded under Title III, many States include, in their Title III
accountability determinations, all LEP students attending public
schools in their States or all LEP students attending public schools
within subgrantees' jurisdictions to be Title III-served for the
purposes of making AMAO determinations. The Department intends that the
interpretations established in this notice apply to both narrow and
broad definitions of ``Title III-served LEP students.''
The final interpretations are neither meant to expand beyond the
statutory requirements in Title III nor in any way restrict a State's
discretion in defining broadly which students it considers ``Title III-
served LEP students'' for purposes of Title III accountability.
The Department requires, however, that each State have a consistent
policy regarding the methods by which it will make AMAO determinations
for the State and its subgrantees. The Department also requires each
State to have consistent guidelines or ``decision rules'' for how
subgrantees within each State define which students are considered
``Title III-served LEP students'' for Title III accountability
purposes.\4\
Overview of Title III Assessment and Accountability Requirements.
The following is a brief summary of the basic requirements of Title III
to which the final interpretations apply. First, each State's Title III
ELP standards must be based on four 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 Title III-served LEP students (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)).\5\ Title III requires States to ensure that all
subgrantees comply with the requirement to annually assess the English
proficiency of all Title III-served LEP students, consistent with the
ELP assessment requirements in section 1111(b)(7) of the ESEA.
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\4\ The Department recognizes that the particular LEP students
designated as Title III-served may differ among subgrantees based on
the unique designs of the language education instructional programs
implemented by subgrantees. State decision rules, therefore, do not
have to yield a single definition of Title III-served LEP students
that is uniform for every subgrantee. However, States must have
consistent guidelines so that subgrantees that employ the same kinds
of program models define their Title III-served LEP student
population in the same manner. This will help ensure that
subgrantees are accurately identifying their Title III-served LEP
student population and that State data and AMAO determinations are
accurate.
\5\ The Department permits States to derive a score to reflect
LEP student performance in the domain of comprehension based on the
other 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.
Throughout this notice, the Department refers to four domains when
discussing assessment requirements under Title I and Title III.
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Under Title III, States and their subgrantees are accountable for
meeting AMAOs that relate to Title III-served 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 each State and its
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
Title III-served LEP students in a State and its subgrantee
jurisdictions are making progress in learning English. The second AMAO
(AMAO 2) focuses on the extent to which Title III-served LEP students
in a State and its subgrantee jurisdictions are attaining proficiency
in English. Both of these AMAOs are based on measures derived, in large
part, from the results of the annual State ELP assessment required
under section 3113(b)(3)(D) in Title III of the ESEA. The third AMAO
(AMAO 3) is based on whether the State and its subgrantees meet the
State's adequate yearly progress (AYP) targets for the LEP subgroup in
reading/language arts and mathematics, as defined by the State under
section 1111(b)(2)(B) in Title I of the ESEA.\6\
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\6\ 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 one or more of the State's
three required AMAO targets. If a subgrantee does not meet all
[[Page 61830]]
of the State's AMAO targets for two consecutive years, the subgrantee
must develop and submit an improvement plan to the State and the State
must provide technical assistance to the subgrantee in developing the
improvement plan. If a subgrantee does not meet all three AMAO targets
for four consecutive years, the subgrantee must undertake corrective
actions.
Implementation Timeline. State Title III assessment and
accountability systems must be consistent with the final
interpretations presented in this notice effective with the assessments
administered in the 2009-2010 school year and AMAO determinations made
based on those assessments.
The Department requires States to revise their Consolidated State
Plans to reflect changes in their Title III assessment or
accountability systems. To the extent that the final interpretations
presented in this notice require States to make changes to their Title
III assessment and accountability systems, the Department requires
States to use the amendment process already in place to request such
changes.
Prior to implementing any revisions, a State must submit its
proposed amendments to the Secretary for review and approval. We
strongly encourage States to submit amendments that are either (1)
necessary to bring State Title III accountability systems into
compliance with current law, or (2) required to accurately reflect
current State practices in implementing Title III assessment and
accountability requirements.
The Department intends to follow this notice with a letter to Chief
State School Officers, State Title III directors, and State Title I
directors providing more specific details on amendment requests and the
deadline for making such requests. Amendment requests for the 2008-2009
school year were due to the Department no later than February 15, 2008.
We expect a similar deadline to be in place for the 2009-2010
amendments and will establish that deadline in the forthcoming letter.
Public Comments
In response to the Secretary's invitation for public comment in the
notice of proposed interpretations, 74 parties submitted comments. A
summary of these comments is provided in the following section. There
are several differences between the notice of proposed interpretations
and this notice of final interpretations. We discuss these changes in
greater detail in the following section. Generally, we do not address
technical or minor changes, and suggested changes that we are not
authorized to make under the law.
Final 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.
This interpretation addresses inquiries that the Department
received regarding whether States and subgrantees are permitted to
exempt a LEP student from an annual ELP assessment in any domain in
which the student has received a proficient score. For example, States
have requested that, with respect to Title III-served LEP students who
score proficient in the domains of speaking and listening, but not in
reading or writing, the State be required to continue to annually
assess those students only in reading and writing, but not in speaking
and listening, until such time as the students become proficient in all
domains.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III 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. We explained in the notice of proposed interpretations that
States could not exempt a student from an annual ELP assessment in any
domain or ``bank'' the proficient scores of a LEP student.
Analysis of Comments and Changes
Comments: A number of commenters expressed support for the proposed
interpretation to disallow ``banking'' of proficient ELP scores in a
particular domain until such time as a student is proficient in all
domains. These commenters noted that because academic demands increase
with each successive grade, language proficiency at one grade level in
any domain may not be adequate for higher grade levels.
However, a number of commenters, including several States,
supported ``banking'' proficient scores in a particular domain. The
commenters stated that administering annual ELP assessments in all four
domains is time consuming, detracts from instructional time, and adds
administrative burden to schools, districts, and States. The commenters
noted that no purpose is served by retesting students in areas that
they have already mastered. Some commenters also asserted that student
motivation decreases with repeated testing. Other commenters suggested
that States should not have to reassess speaking and listening skills
if a student demonstrates proficiency, but should annually reassess
reading and writing skills.
Several commenters suggested clarifying in the notice of final
interpretations whether banking scores within a grade span is also
prohibited.
Discussion: The Secretary shares the commenters' concerns that LEP
students could be considered proficient in English without having
grade-level language proficiency in each domain if ``banking'' of
proficient scores was permitted. We recognize, as some commenters
noted, that language development does not necessarily progress evenly,
and that students may indeed become proficient in some language domains
(such as listening and speaking) before becoming proficient in other
domains (such as reading and writing). However, the ELP annual
assessment requirements in both Title I (section 1111(b)(7)) and Title
III (section 3113(b)(3)(D)) of the ESEA are explicit in requiring an
annual assessment of LEP students in each of the language domains. The
research suggesting that some language skills (e.g., speaking and
listening) may develop before others (e.g., reading and writing) does
not necessarily mean that banking proficient scores in some domains is
an appropriate practice. Even if the development of language is
sequential across domains, language demands increase as development
progresses. Therefore, it would not be appropriate to ``bank'' a
student's listening and speaking scores, for example, in an early grade
when the student may require language instruction services for a number
of years before the student becomes proficient in reading and writing--
over which time the demands of demonstrating age- and grade-appropriate
listening and speaking skills will also change. While students may not
lose acquired language skills over time, the annual ELP assessment of
LEP students will ensure that LEP students do not lose ground in any of
the domains as language demands increase in academic areas in each
successive grade.
[[Page 61831]]
We believe that our explanation of this interpretation in the
notice of proposed interpretations was clear that the banking of
proficient scores in a particular domain for any period, including
banking of scores within grade spans, would not be permitted. However,
we are revising the interpretation to provide this clarification.
Changes: We have revised the interpretation to state specifically
that the banking of the proficient scores of LEP students in particular
domains in any given year, including banking of scores within grade
spans, is not permitted.
Comments: One commenter contended that Title III does not require
an assessment of each of the four domains of listening, speaking,
reading, and writing.
Discussion: We disagree with the commenter. Section 3113(b)(3)(D)
of the ESEA requires SEAs receiving grants under Title III, Part A to
ensure that eligible entities receiving a Title III 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 each State, in its plan 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-
designated students in the schools served by the SEA. We have added
language to the interpretation to make this clear.
Changes: We have added a statement to the final interpretation that
makes clear that the interpretation is consistent with the language of
Title I and Title III of the ESEA.
Comments: A few commenters questioned whether recently-arrived LEP
students and LEP students in the early grades should participate in an
ELP assessment or be tested in all language domains. The commenters
suggested that recently-arrived LEP students should not be tested in
reading and writing, and that their scores should not be included in
AMAOs until they can demonstrate speaking and listening skills. Another
commenter suggested that children in the early grades should be
assessed only in the domains of listening and speaking.
Discussion: The clearest reading of the plain language in section
3113(b)(3)(D) of the ESEA is that all Title III-served LEP students
must be assessed each year in each domain. Moreover, section 1111(b)(7)
in Title I requires an annual assessment of all LEP-designated students
in oral language (listening and speaking), reading, and writing.
Therefore, it would be inconsistent with the ESEA to permit exemptions
from testing in certain domains based on a student's age, grade level,
proficiency level, or length of time in the United States. We have made
this clear in the final interpretation.
The purpose of an ELP assessment is to monitor student progress in
attaining English language proficiency in each of the required domains.
Under Sec. 200.6(b)(4), a State may exempt a recently-arrived LEP
student (a LEP student who has attended school in the United States for
less than 12 months) from one administration of a State's content
assessment in reading/language arts.\7\ However, a recently-arrived LEP
student, like all LEP students, is required to take the State's annual
ELP assessment. Similarly, any LEP student receiving language
instruction educational services funded by Title III must participate
in an annual ELP assessment. (See sections 3113(b)(3)(D) and 1111(b)(7)
of the ESEA).
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\7\ For more information on the regulations related to recently-
arrived LEP students see: http://www.ed.gov/legislation/FedRegister/Finrule/2006-3/091306a.html.
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Changes: We have revised the interpretation to clarify that a State
may not exempt a LEP student from any portion of an annual ELP
assessment.
Comments: Several commenters suggested that the final
interpretation address exceptions to assessing all four domains for
students with disabilities whose individualized education program (IEP)
or 504 plan (under section 504 of the Rehabilitation Act of 1973, as
amended) includes a recommendation for the student to be exempt from
testing. The commenters stated that certain disabilities, such as a
hearing impairment, are particularly relevant to second language
learning.
Discussion: Title III does not provide exemptions from annual ELP
assessments for any Title III-served LEP student. The requirement that
all LEP students served by Title III participate in an annual ELP
assessment does not preclude providing appropriate accommodations for
assessing a LEP student who is also a student with disabilities under
the Individuals with Disabilities Education Act (IDEA). For example, a
student with a hearing impairment might need to be assessed in
listening with the same accommodations that the student receives in the
regular classroom (e.g., an assistive listening device). States and
LEAs should provide appropriate accommodations for LEP students with
disabilities to annually assess their language needs and ensure they
attain English language proficiency in each of the required domains
consistent with 34 CFR 200.6.
Changes: None.
Final Interpretation. The Secretary interprets section
3113(b)(3)(D) of the ESEA to require that all LEP students served by
programs funded under Title III be assessed annually with an assessment
or assessments that measure each of the language domains of speaking,
listening, reading, and writing. States may not exempt LEP students
from any portion of an annual ELP assessment, nor ``bank'' the
proficient scores of LEP students in particular domains in any given
year or within a specific grade span until such time as a student is
proficient in all domains. This interpretation is consistent with the
clear language of both Title I and Title III of the ESEA, which
requires, without exception, that LEP students be assessed annually
with an assessment that measures listening, speaking, reading, and
writing skills.
2. Use of Annual ELP Assessment Scores for AMAOs 1 and 2.
Background. Section 3121(d)(1) in 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) in 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 how 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. Specifically, States have asked (1)
whether students must make progress in and attain proficiency in each
language domain required under Title III to be considered to have made
progress or to attain proficiency overall for AMAO 1 and AMAO 2,
respectively, and (2) whether a State may use a ``composite'' score
across English language domains to demonstrate student progress and
proficiency on State ELP assessments.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III to allow States flexibility in determining
whether
[[Page 61832]]
students who make progress in some (but not all) domains can be
considered to have demonstrated progress for AMAO 1 purposes, but to
require that students demonstrate proficiency in each and every
language domain in order to be considered to have attained proficiency
for AMAO 2 purposes. The proposed interpretation also allowed States to
base their student performance expectations and accountability (i.e.,
AMAO 1 and AMAO 2 targets) 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 across domains, so long as such a
composite score could be demonstrated to be a valid and effective
measure of a student's progress and proficiency in each of the English
language proficiency domains.
Analysis of Comments and Changes
Comments: None.
Discussion: In the notice of proposed interpretations, we included
separate interpretations for AMAO 1 and AMAO 2. In our review of the
proposed interpretations, we decided it was unnecessary to separate
them and have combined them in the final interpretation.
Changes: We have consolidated the interpretations for AMAO 1 and
AMAO 2 into one interpretation.
Comments: Several commenters opposed our proposal to allow States
to use a composite score to measure English language progress or
proficiency for Title III-served LEP students. The commenters expressed
concern that a composite score may mask important information about a
student's strengths and weaknesses and permit a student who is very
weak in some domains, but strong in others, to obtain a proficient
composite score on an ELP assessment. Some commenters expressed concern
that the proposed interpretation was intended to allow States to
disregard one or more domains or use one domain to define AMAOs and set
targets. Other commenters expressed concern that progress in all
domains would not be required to meet AMAO 1 under the proposed
interpretation.
Discussion: The Secretary's interpretation should not be read as
suggesting that States can disregard performance in any domain in
measuring progress or in defining English language proficiency. Such an
interpretation would be inconsistent with the ESEA and
counterproductive; a State that defined AMAO 1 (progress) without
considering all domains would likely find it difficult to ensure that
students meet AMAO 2 (attainment of proficiency). The Secretary agrees
that, in general, AMAO 1 determinations should be made with attention
to progress in all of the language domains required by Title III.
However, in recognition of the evidence that language development does
not necessarily proceed at the same pace across all of the language
domains, we wanted to provide each State with the flexibility to define
its progress goals accordingly. It was our understanding that some
States may have been advised that they were prohibited from counting a
Title III-served LEP student as making progress for AMAO 1 purposes if
the student had not made progress in each and every domain in a given
school year.
The Department is not encouraging States to change their AMAO 1
determinations if those determinations are based on requiring student
progress in all domains on annual State ELP assessments. The Department
is simply recognizing that, given the nature of language acquisition,
some LEP students may make meaningful progress in learning English
without necessarily making progress in each and every domain in a given
school year.
The Department's final interpretation gives each State discretion
in how it defines progress and sets accountability targets for AMAO 1,
so long as the targets provide for (1) meaningful progress toward
attaining English language proficiency and (2) improvement in overall
student performance on the State's ELP assessment. The final
interpretation makes it clear that AMAO 1 targets must meet these two
conditions.
With regard to the use of a composite score to demonstrate
proficiency in English for AMAO 2 purposes, the Department recognizes
the technical demands and testing burdens, described by numerous
testing experts and States, of requiring States to have an
independently valid and reliable ELP assessment score for each of the
four language domains (plus comprehension, required under section
3121(d)(1)). With regard to the specific concern about composite scores
masking very weak performance in some domains, the final interpretation
is clear that--whether or not a State's ELP assessment yields separate
domain scores or a composite score--the ELP assessment must
meaningfully measure student proficiency in each of the language
domains and, overall, be a valid and reliable measure of student
progress and proficiency in English. Even if represented by a composite
score, AMAO 2 must be a measure that demonstrates sufficient student
performance in all required domains to consider a LEP student to have
attained proficiency in English.
Changes: The Department added language to the final interpretation,
which was included in the explanation section of the proposed
interpretation, stating that AMAO targets must provide for (1)
meaningful progress toward attaining English language proficiency and
(2) improvement in overall student performance on the State's ELP
assessment.
Comment: Several commenters noted that the proposed interpretation
appears to prohibit States from using a ``compensatory model'' in
defining English language proficiency and to require States to use a
``conjunctive model'' in which English language proficiency is
determined by separate scores in each and every domain.
Discussion: The proposed interpretation was not meant to require a
conjunctive model such that State ELP assessments would be required to
generate separate and independently valid scores for each domain. We
have changed the interpretation to make this clear. The proposed
interpretation also was not necessarily meant to prohibit States from
using a compensatory model, although the Secretary is concerned that
compensatory models could be used to allow LEP students with weak
performance in one or more English language domains--such as reading or
writing--to still be considered to have attained proficiency in
English.
The Secretary intends with this final interpretation to ensure that
all English language domains required under Title I and Title III are
assessed and that each State is prepared to provide evidence that its
State ELP assessment provides valid and reliable measures of LEP
student progress and proficiency, consistent with the purpose for which
the assessment is used. For Title III, the purpose of the State ELP
assessment is to evaluate subgrantee performance in ensuring that Title
III-served LEP students are making progress toward and ultimately
attaining proficiency in English by demonstrating performance in each
of the English language domains that is sufficient to permit LEP
students to participate effectively in grade-level instruction in
academic content areas in English.
The Department recognizes that most States use some combination or
composite of domain scores to define overall proficiency goals and
targets for Title III accountability purposes. The Department also
recognizes that there are a number of very important
[[Page 61833]]
technical issues related to how States develop and analyze individual
test items, and combine, average, and weight scores across ELP domains
to define progress and proficiency and set performance expectations
(i.e., AMAO targets) for LEP students--whether they use individual
domain scores or composite scores. While these numerous technical
issues are not specifically addressed in this notice, the final
interpretation is clear that, under the ESEA, each State must be
prepared to provide evidence that the various technical aspects of its
ELP assessment are consistent with the requirements in Title III and
valid for the purposes for which the assessment is being used. This
includes demonstrating that its ELP assessment measures all required
domains and yields reliable information on a student's progress and
proficiency in each of those domains.
Changes: To clarify that States are not required to use a
conjunctive model with respect to their ELP assessments, we have made
clear in the final interpretation that a State can use a composite
score so long as the State can demonstrate that the composite score
meaningfully measures student progress and proficiency in each of the
language domains and, overall, is a valid and reliable measure of
student progress and proficiency in English, consistent with the
purpose for which the assessment is used.
We have also removed language in the proposed interpretation for
AMAO 2, which stated that, ``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.'' This specific language appeared to signal to some
commenters that the Department was systematically rejecting both
compensatory models and composite scores by requiring ELP assessments
to generate a separate and valid score for each language domain.
Instead, the Department is requiring that each State be able to
demonstrate that its ELP assessment meaningfully measures student
progress and proficiency in each of the language domains, and, overall,
is a valid and reliable measure of student progress and proficiency in
English, consistent with the purpose for which the assessment is used.
Comments: One commenter noted that section 1111(b)(7) in Title I of
the ESEA lists listening and speaking together under ``oral language''
rather than as separate domains and asked if States can treat these two
domains as one domain.
Discussion: Consistent with the Secretary's interpretation, which
allows States to use a composite score on ELP assessments to define
progress and proficiency, there is nothing that would prohibit a State
from treating oral language as a composite of listening and speaking.
However, as noted earlier, each State must be able to demonstrate, with
data and evidence, that its ELP assessment measures skills in each of
the required domains, including listening and speaking, and that its
score for ELP proficiency represents the acquisition of skills in each
domain required under the law.
Changes: None.
Comments: A number of commenters cited the technical challenges
States would have if the Department required separate performance
standards for each domain. The commenters stated that separate
standards for each domain would require States to redesign their
assessments and include significantly larger samples and more items
within each subdomain, which would result in a long and costly
assessment. The commenters expressed preference for a more ``holistic''
judgment across all four subdomains in defining progress and
proficiency under Title III.
Discussion: The Department is not requiring States that use
composite ELP assessment scores for accountability determinations to
redesign their assessments to generate separate valid and reliable ELP
domain scores. States using composite ELP assessment scores must be
able to demonstrate, with data and evidence, that their ELP assessment
measures knowledge and skills in each of the required domains and that
ELP proficiency scores reflect the acquisition of skills in each domain
required under the law.
We recognize that the language in the notice of proposed
interpretations may have been misinterpreted to mean that States may
not use a composite score to define English language proficiency.
Therefore, as stated above, we have removed this language from the
final interpretation.
Changes: We have revised the interpretation to remove the language
suggesting that States must have a separate, independent and valid
score for each language domain in order to determine a student's
English language proficiency.
Final Interpretation. The Secretary interprets Title III to allow
States to base student performance expectations and accountability
targets for progress and proficiency (i.e., AMAOs 1 and 2,
respectively) on ELP assessments that provide either (1) separate
student performance levels or scores in each of the language domains or
(2) a single composite score. In either case, a State must be able to
demonstrate that its ELP assessment meaningfully measures student
progress and proficiency in each language domain and, overall, is a
valid and reliable measure of student progress and proficiency in
English, consistent with the purpose for which the assessment is used.
With regard to AMAO 1, the Secretary interprets Title III to allow
States to determine AMAO 1 targets, where appropriate, 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 and student performance on the
State's ELP assessment, overall, is improving.
With regard to AMAO 2, the Secretary interprets Title III to
require--regardless of whether a State uses separate or composite
domain scores--that ELP assessments meaningfully measure student
proficiency in all language domains and, overall, provide for valid and
reliable measures of student proficiency in English across the required
domains.
3. Students Included in Title III Accountability. Background.
Section 3122(a)(1) of the ESEA requires States to develop AMAOs for
Title III-served LEP students. The AMAOs relate to students' progress
and attainment of English proficiency and students' ability to meet
challenging State academic content and student academic achievement
standards required in 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 Title III-served LEP children making progress in learning
English (AMAO 1); (2) at a minimum, annual increases in the number or
percentage of Title III-served 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) of Title I of the ESEA (AMAO 2); and (3) making AYP
for the LEP subgroup, as described in section 1111(b)(2)(B) of Title I
of the ESEA (AMAO 3). States must set annual targets for each AMAO and
determine whether each subgrantee is meeting the targets.
The Department is aware that some States systematically exclude
Title III-served LEP students from Title III
[[Page 61834]]
accountability determinations in ways that are inconsistent with the
law. For example, some States treat AMAO 1 and AMAO 2 as mutually
exclusive, such that a Title III-served LEP student is 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 based on their expected
performance on ELP assessments, which systematically excludes some
Title III-served LEP students from AMAO targets, calculations, and
determinations. Such practices are inconsistent with the AMAO
provisions in Title III.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III to require that all Title III-served LEP
students be included in all AMAO targets, calculations, and
determinations.
Analysis of Comments and Changes
Comments: A number of commenters expressed concern that the
proposed interpretation would require all LEP students, not just Title
III-served LEP students, to be included in AMAOs. However, another
commenter stated that the Department was being overly restrictive and
seemed to be prohibiting States from including LEP students not served
by Title III in AMAOs.
Discussion: We acknowledge that the proposed interpretation was not
clear and therefore, have revised the interpretation to make clear that
AMAOs are only required to be applied to Title III-served LEP students.
That said, and as discussed previously in this notice, the Department
recognizes that States and districts vary in how they designate LEP
students as ``Title III-served students.'' In many jurisdictions all
LEP students are counted as Title III-served students because Title III
funds are used for activities that benefit all LEP students. In other
jurisdictions, it may be less burdensome to count all LEP students as
Title III-served students than to track a subset of students receiving
direct services under Title III. Regardless of how States and
subgrantees designate students as Title III-served, AMAOs are only
required to be applied to LEP students who are receiving Title III
services. Accordingly, we have revised the interpretation to clarify
that Title III requirements apply to States and subgrantees receiving
Title III funds, and LEP students receiving Title III services. We note
that by clarifying this language in this interpretation and elsewhere
in this notice, the Department does not intend to prohibit or to
discourage States from more broadly including all LEP students in
AMAOs.
Changes: We have clarified in this interpretation and in other
interpretations in this notice, where appropriate, that Title III
requirements apply to States, to subgrantees receiving Title III funds,
and to students served by Title III.
Comments: A few commenters expressed concern that the proposed
interpretation would require AMAO calculations to include LEP students
in non-public schools and schools and districts not receiving Title III
funds.
Discussion: States are only required to make AMAO determinations
for subgrantees that receive Title III funds. However, as noted
earlier, some States include, in AMAO determinations, LEP students who
are not in districts receiving Title III funds or students not directly
served by Title III-funded programs. Regarding students in non-public
schools, Title III AMAOs do not apply to LEP students served under that
program through the equitable services provisions that attend non-
public schools.
Changes: None.
Comments: A number of commenters argued that Title III-served LEP
students who are not expected to reach proficiency in a given year
should not be included in AMAO 2 calculations or that the performance
of such students should be ``weighted'' so that their scores do not
count as much as the scores of other students in AMAO determinations.
Discussion: As noted earlier, the Department is aware that some
States treat AMAO 1 and AMAO 2 as mutually exclusive, such that Title
III-served LEP students are included in either AMAO 1 or AMAO 2, but
not both. We also understand that some States identify a subset of
Title III-served students as ``eligible'' to be included in AMAOs and
exclude some Title III-served LEP students from AMAO targets,
calculations, and determinations.
The Secretary finds no justification or support in the statute for
excluding a Title III-served student from AMAO 2 based on the student's
current proficiency levels or on expectations for how long it will take
the student to become proficient in English. In addition, the Secretary
finds no justification or support in the statute for ``weighting''
student ELP assessment results so that students at lower English
proficiency levels are discounted in accountability determinations. The
final interpretation is consistent with the plain language of Title
III, which makes no provision for defining AMAOs in ways that
systematically exclude from or discount certain Title III-served LEP
students in AMAO targets, calculations, and determinations.
Changes: None.
Comments: Several States pointed out that using Title I AYP
determinations for AMAO 3 will not necessarily mean that all LEP
students are included in AMAO 3 because, under Title I, the scores of
some students (e.g., students who have not been in a school for a full
academic year, recently-arrived LEP students) are excluded from AYP
determinations. In addition, one State noted that it could not include
all LEP students in AMAO 3 because it could only include in its AYP
determination those LEP students in tested grades.
Discussion: The commenters are correct. In the final
interpretation, we acknowledge that there are several exceptions to the
requirement that all Title III-served LEP students be included in all
AMAO targets, calculations, and determinations.
Changes: We have clarified in the final interpretation that the
requirement to include all LEP students in AMAO 3 is subject to the
exclusions permitted under Title I of the ESEA.\8\ In addition, the
final interpretation regarding AMAO 3 (Interpretation 7) allows States
to make AMAO 3 determinations based on the entire LEP subgroup as
defined by Title I or the group of Title III-served LEP students only.
---------------------------------------------------------------------------
\8\ We note that under our Title I regulations in 34 CFR
200.20(f), some LEP students may not be included in AYP
determinations because of their recently-arrived status.
Furthermore, for example, 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. For more
information on recently-arrived LEP students see 34 CFR
200.20(f)(2)(i)(A) at: http://www.ed.gov/legislation/FedRegister/
finrule/2006-3/091306a.html and the Department's guidance on the
regulations at: http://www.ed.gov/policy/elsec/guid/lepguidance.doc.
The same regulations also include information on how States may
choose 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. For more information on other exceptions permitted in
AYP calculations, such as full academic year enrollment, see the
Title I guidance at http://www.ed.gov/policy/landing.jhtml.
---------------------------------------------------------------------------
Comments: One commenter questioned why the Department would require
that a Title III subgrantee be held accountable for the whole LEP
subgroup, in measuring AMAO 3, when the Title III program serves only a
subset of LEP students.
Discussion: The statute is unclear about whether AMAO 3 must
include the scores of all LEP students or only Title III-served LEP
students. As a practical matter, the Department understands that most
States calculate AMAO 3 based on all LEP students in
[[Page 61835]]
the State because it is not practical or cost effective to make a
separate AYP determination for only Title III-served LEP students.
However, the Secretary will permit, but not require, a State to base
AMAO 3 on the performance of Title III-served LEP students, if a State
is able and willing to calculate separate subgrantee- and State-level
AYP determinations for this subgroup of students.
Changes: We have revised this interpretation, as well as
Interpretation 7, to permit, but not require, a State to calculate
separate subgrantee- and State-level AYP determinations for Title III-
served LEP students for AMAO 3.
Comments: None.
Discussion: In clarifying the Department's intent with regard to
Interpretation 4 to allow the exclusion, from AMAO 1 calculations, of
students who have not participated in two administrations of the
State's ELP assessment, the Department determined that this situation
constitutes another exception to the general requirement that all Title
III-served LEP students be included in all AMAOs. As discussed
previously, the Department recognizes that our Title I regulations
governing AYP calculations (such as full academic year) permit the
exclusion of some students, including potentially some Title III-served
LEP students, from AMAO 3 calculations. We, therefore, have revised the
interpretations accordingly.
Changes: We have revised this interpretation to explain exceptions
to the requirement to include all Title III-served students in all AMAO
targets, calculations, and determinations. These exceptions are
discussed in greater detail in Interpretations 4 and 7.
Final Interpretation. The Secretary interprets Title III to require
that, in general, all Title III-served LEP students be included in all
AMAO targets, calculations, and determinations. This interpretation is
consistent with the plain language in Title III, which makes no
provision for defining AMAOs in ways that systematically exclude any
Title III-served LEP students from any AMAO targets, calculations, and
determinations.
However, the Department acknowledges that, for certain Title III-
served LEP students who have had limited participation in language
instruction educational programs and State ELP assessments, or based on
how States make AYP determinations, States may not have the requisite
student assessment data to include these students in AMAO calculations.
Therefore, there are two exceptions to the general requirement in this
interpretation. First, a State is not required to include in its AMAO 1
calculation Title III-served LEP students who have not participated in
two administrations of a State's annual ELP assessment consistent with
Interpretation 4. Second, a State is not required to include in its
AMAO 3 calculation the scores of Title III-served LEP students whose
scores are excluded from the State's AYP determination under Title I
and Sec. 200.20(f).\9\
---------------------------------------------------------------------------
\9\ We note that under our Title I 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
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.
---------------------------------------------------------------------------
4. Exclusion of Title III-Served LEP Students ``Without Two Data
Points'' from AMAO 1.
Background. Section 3122(a)(3)(A)(i) of the ESEA requires States to
develop an AMAO that measures Title III-served 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 Title
III-served LEP children making progress in learning English.
In Interpretation 3 of this notice, the Department's final
interpretation is that all LEP students served by Title III must be
included in Title III accountability determinations, subject to two
exceptions. Interpretation 4 addresses one of these exceptions, i.e.,
the question of whether States are permitted to exclude from AMAO 1
calculations and determinations Title III-served LEP students who do
not have ``two data points'' that can be used to measure progress; that
is, students who have not participated in two administrations of a
State's annual ELP assessment required under Title III.
States have, in general, operationalized AMAO 1 as a measure of
individual student growth in English language proficiency. Therefore,
States typically include in AMAO 1 determinations only Title III-served
LEP students for whom States have at least two scores or data points
from comparable assessments, so that ``progress'' or growth can be
demonstrated for individual students over time.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III to include all Title III-served LEP students in
measures of student progress in learning English (AMAO 1), regardless
of whether the students participated in at least two consecutive and
consistent annual administrations of an ELP assessment required under
section 3113 of the ESEA. For students who did not participate in two
consecutive and consistent annual administrations of an ELP assessment,
the proposed interpretation would have, in effect, required States to
propose to the Department an alternative method of measuring progress
in order to include such students in AMAO 1 determinations. The
proposed interpretation also would have allowed States to include
additional criteria, over and above ELP assessment results, in AMAO
determinations.
Analysis of Comments and Changes
Comments: Several commenters expressed support for the opportunity
to propose to the Department an alternative method of measuring student
progress in learning English in order to calculate AMAO 1 for Title
III-served LEP students who do not have scores from two administrations
of the State's ELP assessment. The commenters noted, for example, that
States should receive credit for the progress of LEP students in
kindergarten and newly enrolled LEP students who make progress in
language proficiency. However, the vast majority of commenters opposed
including, in AMAO 1 determinations, students who do not have at least
two scores on the State's annual ELP assessment. The commenters stated
that using measures other than the State's ELP assessment to make
accountability decisions may result in unreliable data from non-
comparable assessments and may force States to misuse assessments for
purposes for which they were not designed.
Discussion: The Department did not intend to suggest that States
use unreliable, invalid, or inappropriate assessment data to make
accountability determinations. The purpose of this interpretation is to
ensure that States include as many Title III-served LEP students in
AMAO 1 determinations as possible. The Department believes that some
States were advised that they were prohibited from including in AMAO 1
determinations any student for whom the State did not have scores from
two State ELP assessments, and we wanted to correct this
misunderstanding.
The Department's intent was to ensure that States are measuring the
[[Page 61836]]
progress of all Title III-served LEP students in acquiring English and
to address the large numbers of Title III-served LEP students who are
not included in AMAO 1 calculations because States report them as not
having participated in two administrations of the State's ELP
assessment. We expect that some students will legitimately have only
``one data point'' on the State ELP assessment. For example, LEP
students in kindergarten, or LEP students who are recent arrivals to
the United States would likely only have participated in one
administration of a State's ELP assessment. However, States should not
exclude from AMAO 1 determinations, students who transfer across
districts within States, for example, or are absent for an assessment
without adequate opportunities for a make-up exam. According to data
submitted by States for the 2007 Consolidated State Performance Report
(CSPR), an average of 30 percent of Title III-served LEP students had
only one State ELP assessment score, and therefore were not included in
AMAO 1 determinations. Twelve States were unable to measure progress
for 35 percent or more of their Title III-served LEP students. Nine
States could not include 40 percent or more of their Title III-served
LEP students in AMAO 1 because they did not have scores from two
administrations of the State's ELP assessment.
These concerns remain. However, the Department is persuaded by the
commenters' arguments and has changed this interpretation to require
that States include in AMAO 1 the scores of Title III-served LEP
students who have participated in at least two administrations of the
State's annual ELP assessment. States also may include, in AMAO 1
determinations, progress measures for Title III-served LEP students who
have participated in fewer than two administrations of the ELP
assessment but are not required to do so. The final interpretation
provides that States may propose to the Secretary alternative measures
of progress for students who do not have scores from two
administrations of the annual ELP assessment so that such students can
be included in AMAO 1 determinations.
Regardless of whether a student has scores from two administrations
of the State's ELP assessment, we note that under Title III States are
accountable for all Title III-served LEP students. We will continue to
require States to report the number of Title III-served LEP students
who do not have two data points on the State's annual ELP assessment.
States must be able to account for and explain to the Department during
its regular Title III monitoring activities, the specific reasons why
students' scores were not included in AMAO 1.
Changes: We have revised the interpretation to require States, in
calculating AMAO 1, to include only the scores of Title III-served LEP
students who have participated in two administrations of the State's
ELP assessment. We also have revised the interpretation to provide that
if a State does not have results from two administrations of the
State's annual ELP assessment for some Title III-served LEP students,
but wants to include those students in its AMAO 1 accountability
determinations, the State may propose to the Secretary an alternative
measure of progress for those students. The final interpretation
specifies that an alternative measure of progress must be based on
research on how LEP children acquire proficiency in English and be a
reliable measure of growth in English language proficiency.
Comments: Several commenters stated that it was inappropriate for
the Department to require States to make AMAO 2 determinations based on
only ``one data point.''
Discussion: The Department wants to be clear that the lack of ``two
data points'' does not affect AMAO 2 calculations of proficiency. AMAO
2 is not a progress measure, nor does it require multiple measures of
student growth. Any Title III-served LEP student who participates in
one administration of the State's ELP assessment must be included in
AMAO 2 (proficiency) calculations.
Changes: None.
Comments: Numerous commenters expressed concern about including in
AMAO 1 Title III-served LEP students who have received Title III
services for less than a full academic year.
Discussion: There is no provision in Title III (unlike the explicit
provision in section 1111(b)(3)(C)(xi) in Title I regarding AYP
determinations) that provides for Title III-served LEP students to be
excluded from AMAO determinations based on whether such students have
attended a school or schools in a subgrantee's jurisdiction for less
than a full academic year. Therefore, States may not apply Title I's
full academic year policies to AMAO 1 and AMAO 2 determinations.
Changes: None.
Comments: None.
Discussion: The proposed interpretation allowed States discretion
to use criteria in addition to performance on the State's ELP
assessment in calculating AMAO 1 (e.g., performance on State content
assessments or other criteria similar to the criteria States use to
define English language proficiency, which may involve data or
information from multiple sources). While the Department recognizes
that including additional criteria is not standard practice in States,
it should be allowed as an option, just as the Department allows
criteria, in addition to ELP assessment results, to be considered in
AMAO 2 determinations so that ``attaining proficiency'' under Title III
corresponds to how proficiency is defined for the purposes of exiting
students from the LEP subgroup in Title I (see Interpretation 5).
Changes: We have clarified in the final interpretation that if a
State uses additional criteria in calculating AMAO 1, such criteria may
only be applied to Title III-served LEP students who have participated
in two administrations of the State's annual ELP assessment and have
demonstrated progress in learning English.
Comments: None.
Discussion: The proposed interpretation indicated that AMAO 1
determinations typically are made for Title III-served LEP students
based on the results of two ``consecutive and consistent''
administrations of a State's ELP assessment.
Upon further review of this language, the Department has determined
that it is not necessary for the ELP assessments to be ``consecutive''
to measure Title III-served LEP student growth in English language
proficiency. So long as a Title III-served LEP student has participated
in two administrations of a State's annual ELP assessment, whether or
not those assessments are administered consecutively, progress can be
measured and included in AMAO 1 determinations.
We also determined that the reference to two ``consistent''
administrations of a State's ELP assessment was vague and should be
removed from the final interpretation. States change and improve their
assessments over time and we do not want to imply that scores must be
from the exact same test from one year to the next in order to be
included in AMAO 1 determinations.\10\
---------------------------------------------------------------------------
\10\ That said, the Department recognizes that States need to
have a certain level of comparability in their ELP assessments each
year in order to have valid and reliable measures of individual
student progress. If a State makes significant changes to its
assessment or adopts a new ELP assessment, such that the State faces
difficulties in making AMAO 1 determinations, the State must propose
to the Department how it will make required AMAO determinations
during such assessment transition periods. See letter to States at:
http://www.ed.gov/about/offices/list/oela/funding.html regarding the
requirements that States make AMAO determinations each and every
year and the procedures for States to propose to the Department how
AMAO determinations will be made when there is a significant change
in a State's ELP assessment.
---------------------------------------------------------------------------
[[Page 61837]]
Changes: In the final interpretation we have removed the reference
to two ``consecutive and consistent'' annual administrations of an ELP
assessment in describing the type of ELP assessment in which a Title
III-served LEP student must participate in order to be included in AMAO
1 determinations.
Final Interpretation. The Secretary interprets the requirement in
section 3122(a)(3)(A)(i) of the ESEA to require States to include in
AMAO 1, at a minimum, the scores of all Title III-served LEP students
who have participated in at least two administrations of the State's
annual ELP assessment. If a State does not have results from two
administrations of the State's annual ELP assessment for some Title
III-served LEP students, but wants to include such students in AMAO 1
accountability determinations, the State may propose to the Secretary
an alternative method of measuring progress. The alternative method for
measuring progress under AMAO 1 must be a valid and reliable measure of
growth in English language proficiency.
The Secretary also interprets section 3122(a)(3)(A)(i) of the ESEA
to permit States to allow criteria such as performance on local ELP
assessments or content assessments--in addition to progress on an
annual ELP assessment--to be factored into progress determinations for
AMAO 1. However, if a State uses additional criteria, such criteria may
not substitute for performance on the State's ELP assessment.
Additional criteria are to be considered only over and above the basic
AMAO 1 expectation that a subgrantee's Title III-served LEP students
who have participated in two administrations of the State's annual ELP
assessment have made progress.
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 students' attainment of
proficiency in English, as determined through an assessment that
meaningfully measures student proficiency in each language domain and,
overall, is a valid and reliable measure of student proficiency in
English. AMAO 2 requires that States and subgrantees, at a minimum,
show annual increases in the number or percentage of Title III-served
LEP students attaining English proficiency.
Notwithstanding the requirement in section 9101(25) of the ESEA for
each State to adopt a single definition of limited English proficient,
the Department understands that many States have two definitions of
language proficiency for LEP students. In most cases, States use one
definition of proficiency for purposes of Title III accountability
determinations that is different than the definition of proficiency
used under Title I to ``exit'' a student from the LEP subgroup. As a
result, many students remain designated as LEP despite the fact that,
by Title III standards, they have attained English language
proficiency.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III to require that a State's definition of English
language proficiency for the purpose of setting targets for attaining
English language proficiency (AMAO 2) be consistent with and reflect
the same criteria the State uses to determine that students from the
LEP subgroup no longer need language instruction educational services
and will exit the LEP subgroup. In other words, a student considered to
have attained proficiency in English for the purposes of AMAO 2 would
also be considered ready to exit the LEP subgroup for Title I purposes
under the proposed interpretation.
The purpose of the proposed interpretation was to ensure that all
LEP students receive Title III services until such time that they are
no longer designated LEP and that States do not prematurely designate a
student as having ``attained proficiency in English'' for Title III
accountability purposes before such students are truly considered
proficient in English. As such, the proposed interpretation would have
required any additional criteria a State uses under Title I for
determining when a LEP student exits the LEP subgroup, to be
incorporated into that State's criteria for AMAO 2. The Secretary
believes that the lack of consistent criteria for determining
proficiency across Title III and Title I creates confusion about
eligibility for Title III services and results in improper
implementation of Title I and Title III ELP assessment requirements and
Title III accountability requirements.
Analysis of Comments and Changes
Comments: Many commenters opposed our proposal to require that a
State's definition of attaining proficiency (AMAO 2) for Title III
purposes be the same as the State's definition for exiting the LEP
subgroup under Title I. The commenters' major concern was that LEP
students would be exited from LEP status prematurely or made ineligible
for language instruction educational services based solely on the
results of a State's ELP assessment. Some commenters argued that Title
III resources would be spread too thin and that subgrantees would be
forced to serve too many students if subgrantees were required to serve
Title III-served LEP students until those students meet a State's
criteria for exiting students from the LEP subgroup under Title I.
Other commenters expressed concern that States would relax their
criteria to exit students from the LEP subgroup in order to meet AMAO 2
proficiency targets. One commenter argued that the statutory language
in Title III does not require AMAO 2 to be linked to the criteria for
exiting LEP students from the LEP subgroup under Title I.
Discussion: The purpose of the proposed interpretation was to
ensure that all LEP students receive Title III services until such time
that students are no longer designated LEP. The Department did not
intend to require States to change their definition of students who are
considered LEP (as per section 9101(25) of the ESEA) under Title I,
prematurely exit students from the LEP subgroup, or change in any way
the requirements for determining a student's eligibility for Title III
or other language instruction educational services. Indeed, the
Department proposed that States adopt a single and consistent
definition of attaining proficiency in English so as to ensure that a
LEP student receives the language instruction educational services
needed to acquire proficiency in English as long as the student is
identified as LEP.
As illustrated by many of the comments we received, the lack of
consistent criteria across Title III and Title I results in confusion
about who is eligible for services under Title III, obscures who ought
to receive services under Title III, and has led to questions about how
a LEP student who has ``attained proficiency'' under Title III is to be
included in both Title III and Title I assessments and accountability
determinations. For example, through its monitoring of Title III
programs, the Department has found that a number of States fail to
administer the annual ELP assessment required under Title I once a LEP
student has scored proficient and met AMAO 2 under Title III, even
though the student continues to be designated as LEP under Title I. In
these States, a student who scores proficient on the State's ELP
assessment does not continue to be assessed for Title III purposes.
However, section 1111(b)(7) of the ESEA requires that as long as a
student is LEP, the student must participate in an annual ELP
assessment. In addition, a number of
[[Page 61838]]
States fail to include Title III-served LEP students in AMAO
determinations once a student has ``attained proficiency'' on the
State's ELP assessment. However, as long as a LEP student is receiving
Title III services, such a student must be included in the annual
assessment and accountability requirements in Title III.
The commenters who argued that Title III resources would be spread
too thin if students were required to meet a State's criteria for
exiting students from the LEP subgroup under Title I in order to be
considered proficient under AMAO 2 appear to be confused about the
requirements under Title I and Title III. A student is eligible for
Title III services as long as the student is designated LEP.
Accordingly, the fact that a student is considered to have ``attained
proficiency'' under Title III is not the determining factor for whether
the student is eligible for Title III services.
The Secretary believes that attaining proficiency in English for
Title III purposes should not be a separate or lower standard than the
criteria a State uses to determine that a student no longer needs to be
designated LEP. However, given the overwhelming misunderstanding of and
opposition to the proposed interpretation, as well as concerns raised
by Congressional staff and other commenters that the intent of the law,
despite the inconsistencies it may cause, is to allow separate measures
of accountability for Title I and Title III, we have changed the
interpretation. The final interpretation permits States to use a
definition of ``attaining proficiency'' for AMAO 2 that differs from
the definition the State uses to exit students from the LEP subgroup
for Title I accountability purposes.
However, the Secretary wants to make clear that, consistent with
the statutory language, students who remain in the LEP subgroup under
Title I (regardless of whether they ``attain proficiency'' for AMAO 2
purposes) must continue to be eligible for Title III services and must
participate in the State's annual ELP assessment, as required under
Title I. The scores of Title III-served LEP students cannot be
``banked'' until such students meet other State or local criteria for
exiting the LEP subgroup and must be included in all AMAO
determinations as long as the student receives Title III services or is
included in the State's or subgrantee's definition of Title III-served
LEP students for accountability purposes.
The Secretary also urges Congress to carefully consider and
address, during reauthorization of the ESEA, the inconsistency of
English language proficiency definitions across Title I and Title III.
Changes: We have revised the interpretation to encourage, but not
require, a State's definition of attaining English language
proficiency, and its AMAO 2 targets, calculations, and determinations
to be consistent with the criteria the State uses to determine that
students are ready to exit the LEP subgroup under Title I.
We also have revised the interpretation to clarify that as long as
a student is designated LEP, the student is eligible for Title III
services, regardless of whether the student has ``attained
proficiency'' based on the definition of AMAO 2 under Title III.
In addition, the final interpretation includes language providing
that all students designated LEP are required, under Title I, to
participate in an annual ELP assessment, regardless of whether, for
Title III purposes, such students have ``attained proficiency'' in
English and that every LEP student who is receiving Title III services
must be included in AMAO determinations, regardless of whether the
student has ``attained proficiency'' in English on the State's ELP
assessment.
Comments: Several commenters asked whether the criteria States use
to exit students from the LEP subgroup under Title I could include
criteria in addition to performance on a State's annual ELP assessment.
Many commenters expressed concern that if States were required to use
only the results of the State ELP assessment to exit students from the
LEP subgroup, many LEP students would be inappropriately exited from
the LEP subgroup.
Discussion: Section 9101(25) of the ESEA provides States with
flexibility in the criteria they use to define a LEP student. The
Department requires States to submit their definitions of LEP and their
criteria for exiting students from the LEP subgroup as part of their
Title I Accountability Workbook. The Department has approved numerous
States' definitions that include criteria in addition to performance on
the State's ELP assessment, to exit students from the LEP subgroup. For
example, some States use judgments from teachers and parents; other
States use student performance on other assessments, including State
content assessments in reading required under Title I. Neither the
proposed nor the final interpretation challenges States' approved
definitions of LEP students or suggests that States should use
performance on a State's annual ELP assessment alone to exit students
from the LEP subgroup; the proposal was to use the same approved
criteria under Title I to define proficiency for Title III purposes.
Changes: None.
Comments: Several commenters expressed concern that the proposed
interpretation excluded parents from the decision-making process
regarding a student's LEP status.
Discussion: We did not intend in the proposed interpretation to
challenge or change any requirements regarding the array of student
performance data or teacher and parent judgments used to make decisions
about students' need for language instruction educational services or
exiting students from the LEP subgroup; nor does the final
interpretation. The final interpretation focuses only on how States
define, for the purposes of Title III accountability determinations,
whether a student has ``attained English proficiency'' under AMAO 2.
Changes: None.
Final Interpretation. It is the Secretary's interpretation of
section 3122(a)(3)(A)(ii) of the ESEA that a State may use a definition
of attaining English language proficiency for purposes of Title III
accountability determinations under AMAO 2 that differs from the
definition of English language proficiency that the State uses to
determine that students should exit the LEP subgroup for Title I
accountability purposes. If a State uses different definitions,
students who remain in the LEP subgroup--regardless of whether they
``attain proficiency'' for AMAO 2 purposes--continue to be eligible for
Title III services, and must participate in the State's annual ELP
assessment, as required under section 1111(b)(7) of the ESEA. In
addition, any LEP student who continues to receive Title III services--
regardless of whether they ``attain proficiency'' for AMAO 2 purposes--
must be included in all AMAO determinations.\11\
---------------------------------------------------------------------------
\11\ 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.
---------------------------------------------------------------------------
However, the Secretary strongly encourages States to have a
definition of attaining proficiency (AMAO 2) for Title III purposes
that is consistent with the State's definition for exiting the LEP
subgroup under Title I. A single definition of English language
proficiency would result in a State setting its targets for AMAO 2 that
are consistent with and reflect the same criteria it uses to determine
that students are prepared to exit the LEP subgroup for Title I
accountability purposes.
[[Page 61839]]
The final interpretation has no bearing on the substance of the
criteria States use to exit students from the LEP subgroup under Title
I. The Secretary continues to permit States and subgrantees to use
criteria in addition to performance on the State's annual ELP
assessment to determine a student's LEP status, consistent with States'
definitions of LEP in their Title I Accountability Workbooks, as long
as those criteria are applied consistently across all subgrantees in a
State.
6. Use of Minimum Group Size in Title III Accountability.
Background. Section 3122(a)(3)(A)(ii) of Title III requires that
States' AMAOs be determined using 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
they may apply their minimum group size, used in Title I AYP
determinations, to AMAO calculations and determinations. It is the
Department's understanding that numerous States are already
implementing minimum group size policies as part of their AMAO
determinations.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III to permit a State to apply the same minimum
group size to AMAO calculations and determinations that the State
applies to AYP determinations and that have been approved by the
Department in the State's Accountability Workbook for purposes of Title
I of the ESEA. This interpretation was 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 group size reflects the number of Title III-served
LEP students enrolled in a district who participate in the State's
annual ELP assessment in order for the ELP assessment scores of those
students, taken together, to be a reliable basis for making judgments
about how a subgrantee is performing.
Analysis of Comments and Changes
Comments: None.
Discussion: In the course of our internal review of the proposed
interpretations, we determined that we should refer to ``minimum group
size'' rather than ``minimum subgroup size'' because AYP determinations
are made for student subgroups and the ``all students group,'' which is
not considered a subgroup.
Changes: We have changed the reference from ``minimum subgroup
size'' to ``minimum group size'' throughout the interpretation.
Comments: The majority of commenters supported the proposed
interpretation that would permit a State to apply a minimum group size
to AMAO calculations and determinations under Title III, consistent
with the minimum group size policies that the State applies to AYP
determinations under Title I and that has been approved by the
Department in the State's Accountability Workbook under Title I.
However, a few commenters expressed concern that permitting a State to
use its minimum group size would mean that some districts would not be
held accountable under Title III.
Discussion: AMAO determinations must be made for all subgrantees
receiving Title III funds. We share the commenters' concerns that the
use of a minimum group size may mean that the scores of some students
would not be included in AMAO determinations. We believe that this is a
particular concern for subgrantees that use cohorts in making their
AMAO determinations or are members of a consortium for Title III
funding purposes.
In order to ensure that using a minimum group size in AMAO
determinations does not render subgrantees unaccountable under Title
III, we have clarified in the final interpretation that a State cannot
apply its minimum group size to individual cohorts of LEP students in
the State or in subgrantee jurisdictions for which the State has set
separate AMAO targets for cohorts. Similarly, if a State's subgrantees
have formed a consortium for funding purposes, a State's minimum group
size may not be applied to an individual consortium member if it means
that AMAO determinations would not be made for that member of the
consortium or for the consortium as a whole. In such cases, the data
must be aggregated and combined across some or all members in the
consortium in order to make AMAO determinations.
Changes: We have revised the interpretation to make clear that a
State's minimum group size may be applied to State-level AMAO
determinations and to subgrantees' Title III-served LEP group--but not
to AMAO determinations for separate ``cohorts'' of Title III-served LEP
students for which the State has set separate AMAO targets for itself
and its subgrantees.\12\
---------------------------------------------------------------------------
\12\ Interpretation 8 addresses State use of ``cohorts'' in
making AMAO determinations for Title III accountability purposes. In
the end, a State is required to make a single AMAO determination for
itself and for each subgrantee, regardless of how many ``cohorts''
it uses or separate AMAO determinations it makes for groups of Title
III-served LEP students. For this reason, the Department believes it
is appropriate to restrict the application of minimum group size
criteria to the overall State or subgrantee AMAO determination,
rather than to each individual cohort, which would severely restrict
Title III accountability at the subgrantee level.
---------------------------------------------------------------------------
We also have clarified that if a State's subgrantees have formed
consortia for the purposes of receiving Title III funding, a State's
minimum group size may be applied to each consortium member only if
AMAO determinations can be made for each member of the consortium;
otherwise, the minimum group size may not be applied to an individual
consortium member. Instead, data from at least some other members of
the consortium must be aggregated to meet minimum group size
requirements and make AMAO determinations.
Comments: Several commenters stated that the proposed
interpretation seems inconsistent with our interpretation that requires
all students to be included in AMAOs.
Discussion: A major purpose of these interpretations is to ensure
that no State systematically excludes Title III-served LEP students
from Title III accountability determinations. This is very different
from supporting district and State efforts to ensure that
accountability determinations are based on sound, stable, and reliable
data. In fact, section 3122(a)(3)(A)(ii) of the ESEA specifically
requires States' AMAOs for LEP student proficiency in English to be
determined by a valid and reliable assessment of English proficiency
consistent with section 1111(b)(7) of Title I of the ESEA.
The Department believes that in most cases, it is not necessary for
States to apply a minimum group size to AMAO determinations because
Title III accountability requirements apply only at the LEA/subgrantee
and State levels. Title III accountability requirements do not apply to
individual schools, where there are typically smaller numbers of LEP
students or frequent fluctuations in student populations that make it
necessary to use a minimum group size. However, we will permit a State
to apply its minimum group size to AMAO determinations to ensure that
judgments about a subgrantee's performance in serving LEP students are
based on valid and reliable data. If a State uses a minimum group size
in AMAO determinations, it must report this information as part of its
Title III State plan.
Changes: As noted previously, we have clarified that a State's
minimum group size may not be applied to AMAO determinations for
separate cohorts. Likewise, a State's minimum group size
[[Page 61840]]
may be applied to each member of a consortium only if AMAO
determinations can be made for each member. If AMAO determinations
cannot be made for an individual consortium member, the State must not
apply its minimum group size to the individual consortium member but
must combine AMAO data with some or all consortium members for some or
all AMAOs in order that AMAO determinations can be made for every
member in a consortium.
Comments: None.
Discussion: In our explanation in the notice of proposed
interpretations, we noted that the Department is not encouraging States
to adopt minimum group size policies for purposes of complying with
Title III's accountability requirements and that the Department does
not believe it will be necessary for most States to adopt such
policies. As we have stated previously in this notice, Title III
accountability requirements apply only at the LEA/subgrantee and State
levels, not to individual schools, where there are typically smaller
numbers of LEP students or frequent fluctuations in student populations
that might make use of a minimum group size necessary. Furthermore,
LEAs with very small numbers of LEP students are not typically eligible
for Title III grants, so they are unlikely to be affected by the final
interpretation.
We emphasize that policies designed to ensure that assessment
results are used to make valid and reliable accountability
determinations must be applied consistently across the State for Title
III subgrantees. Therefore, under no circumstances may a State allow
one subgrantee to use a different minimum group size than another
subgrantee in the State for Title III accountability purposes.
Changes: None.
Final Interpretation. The Secretary interprets section
3122(a)(3)(A) of the ESEA to permit a State to apply a minimum group
size to AMAO calculations and determinations under Title III that is
consistent with the minimum group size that the State applies to AYP
determinations and that has been approved by the Department in the
State's Accountability Workbook under Title I.
In order to ensure that a State's minimum group size does not
decrease accountability for subgrantees receiving Title III funds, a
State may apply its minimum group size only to the State's and
subgrantees' Title III-served LEP students as a whole and not to
separate ``cohorts'' of Title III-served LEP students if the State has
established cohorts and has set separate AMAO targets for them.
If a State's subgrantees have formed a consortium for the purposes
of Title III funding, a State's minimum group size may be applied to
each consortium member only if AMAO determinations can be made for each
member. If AMAO determinations cannot be made using the State's minimum
group size for any member of the consortium, the State must not apply
its minimum group size to the individual consortium member and instead
must combine AMAO data across some or all consortia members for some or
all AMAO determinations so that minimum group size requirements are met
and AMAO determinations are made for every consortium member receiving
Title III funds.
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 AYP for LEP students as described in
section 1111(b)(2)(B) of Title I of the ESEA.
In Interpretation 3 of this notice, the Department has set forth
its final interpretation that all LEP students served by Title III must
be included in Title III accountability determinations. Interpretation
7 addresses the more specific question of whether States must include
all LEP students--whether or not served by Title III--in determining
whether a State or its subgrantees have met AMAO 3.
In the notice of proposed interpretations, the Secretary proposed
to interpret Title III 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. The setting of targets, calculations, and
determinations of AMAO 3, under this interpretation, would not be
limited to, or based on, only the expectations for Title III-served LEP
students.
Analysis of Comments and Changes
Comments: Many commenters supported the proposed interpretation to
require that LEP students included in AMAO 3 be the same LEP students
counted in the LEP subgroup for AYP purposes under Title I. Most of the
commenters representing State Departments of Education acknowledged
that the current practice for calculating AMAO 3 is to use the AYP
calculation under Title I and include all LEP students in Title III-
funded districts or all LEP students in the State. However several
commenters questioned the Department's authority to require States to
include in AMAO 3 all LEP students when section 3122(a)(1) in Title III
of the ESEA clearly refers to LEP students ``served under this part.''
Some commenters also expressed concern about holding Title III programs
accountable for the academic performance of all LEP students.
Discussion: We do not agree that Title III clearly addresses the
issue of which LEP students are expected to be included in AMAO 3.
Section 3122(a)(1) of the ESEA specifically notes that AMAOs apply to
``children served under this part.'' However, 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].''
Because of this ambiguity, we have revised the interpretation to permit
a State and its LEAs to meet AMAO 3 if the State's AYP achievement
targets for reading and mathematics are met by the LEP subgroup as a
whole (the same AYP determination under Title I) or by the subgroup of
Title III-served LEP students. If a State has the capacity and ability
to reliably and accurately make AYP determinations at the LEA and State
levels specifically for Title III-served LEP students, the State may do
so. If, for practical reasons, a State decides to calculate AMAO 3
based on all LEP students in the State or based on all LEP students in
Title III-funded subgrantee jurisdictions, the State may do so.
Changes: We have changed the interpretation to permit, but not
require, States to calculate AMAO 3 using (1) the LEP subgroup as a
whole or (2) the Title III-served LEP students if the State has the
capacity and ability to reliably and accurately make AYP determinations
at the LEA and State levels specifically for the Title III-served LEP
students. In the final interpretation, we clarify that States must
explain to the Department which method they are using to calculate AMAO
3 and apply the method consistently in making AMAO determinations for
subgrantees.
Comments: A number of commenters noted that AMAOs are based on
district, not school, performance and asked how they would use
district-level AYP for AMAO 3. Specifically, the commenters asked how
AMAO 3 should be determined when States calculate AYP for grade spans
within districts and whether Title III subgrantees must meet AYP
targets for LEP students in both language arts and mathematics to be
considered to have met AMAO 3.
Discussion: In order to meet AMAO 3, the Title III-served LEP
students or the LEP subgroup in general must meet
[[Page 61841]]
district-level AYP targets for all grade spans (if grade spans are
used) for both mathematics and reading/language arts, as well as meet
AYP participation requirements. We have added language to make this
clear in the final interpretation.
Changes: We have revised the interpretation to clarify that meeting
AMAO 3 requires States and subgrantees to meet State AYP targets for
both reading and mathematics for the Title III-served LEP students or
the LEP subgroup as defined under Title I. The final interpretation
also clarifies that a State and its subgrantees must meet State AYP
targets for both reading and mathematics, as well as the participation
rates, for the Title III-served LEP students or the LEP subgroup under
Title I in order to be considered to have met AMAO 3.
Comments: None.
Discussion: The Secretary believes that one of the key purposes of
AMAO 3 is to tie accountability for English language acquisition under
Title III to accountability for ensuring that all LEP students achieve
to the same high standards as all students are expected to meet in the
core content areas under Title I. Therefore, the Secretary's strong
preference is that a State uses the same criteria for determining AYP
under AMAO 3 as it uses to determine AYP for the LEP subgroup at the
State and LEA levels under Title I. We have made this clear in the
final interpretation.
However, given the lack of clarity in the statutory language, the
final interpretation allows States the option, in calculating AMAO 3,
to include (1) all LEP students--that is, the entire LEP subgroup as
defined under Title I--in the subgrantee's jurisdiction or (2) only
Title III-served LEP students.
Changes: The final interpretation notes the Secretary's strong
preference that a State uses the same criteria for determining AYP
under AMAO 3 as it uses to determine AYP for the LEP subgroup at the
State and LEA levels under Title I.
Final Interpretation: The Secretary interprets section
3122(a)(3)(A)(iii) of the ESEA to permit a State and its subgrantees to
meet AMAO 3 if the State's AYP achievement targets for reading and
mathematics are met by the LEP group as a whole (the same AYP
determination under Title I) or by the subgroup of Title III-served LEP
students, if the State has the capacity and ability to reliably and
accurately make AYP determinations at the State and LEA/subgrantee
levels specifically for the Title III-served LEP subgroup. In either
case, each State is required to provide information in its State Title
III plan on how AMAO 3, as well as the other AMAOs, will be defined and
determined consistently for all subgrantees in the State. However, the
Secretary's strong preference is that the LEP students included in AMAO
3 be the same LEP students referenced in section 1111(b)(2)(B) of Title
I of the ESEA--that is, all students included in the LEP subgroup at
the State and LEA levels for AYP purposes under Title I.\13\
---------------------------------------------------------------------------
\13\ 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.
---------------------------------------------------------------------------
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 and instructional practices in setting overall AMAO
targets for English language acquisition by Title III-served LEP
students. To date, the Department also has allowed States to establish
different AMAO targets for different ``cohorts'' of LEP students. The
Department's intent in allowing cohorts was to help States implement
AMAOs that reflect the amount of time students are enrolled in a
language instruction educational program. However, we have learned that
some States have implemented AMAO targets for cohorts based on
characteristics of LEP students other than their access to English
language instruction educational programs. For example, some States
have established cohorts based on student performance on ELP
assessments, the number of years students have been in the United
States, or on the likelihood a student will reach proficiency in
English in a given year. The Secretary believes that such practices are
inconsistent with Title III and NCLB.
In the notice of proposed interpretations, the Secretary proposed
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 only set separate AMAO targets for
separate groups or ``cohorts'' of LEP students served by Title III
based on the amount of time (for example, number of years) such
students have had access to language instruction educational programs.
Under the proposed interpretation, States could not set separate AMAO
targets for cohorts of LEP students based on a student's current
language proficiency, time in the United States, or any criteria other
than time in a language instruction educational program.
Analysis of Comments and Changes.
Comments: There was general opposition to the proposed
interpretation which would allow States to 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.
Most commenters argued that States should be allowed to use other
criteria, such as students' current proficiency levels, to establish
cohorts and set different expectations for students based on such
criteria. Some commenters argued that States should be permitted to
establish different cohorts and expectations based on a student's
current proficiency levels so that States could hold districts
accountable for higher rates of growth for students with the least
proficiency in English.
Discussion: Section 3122(a)(2)(A) of the ESEA requires AMAOs to 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, for example, have
appropriately considered empirical data and instructional practices in
setting overall AMAO targets for English language acquisition by LEP
students served under Title III.
Title III does not, however, support setting separate
accountability targets for language proficiency based on a student's
current proficiency level in English. Although some commenters argued
that separate targets based on language proficiency levels would allow
States to hold districts accountable for higher rates of growth for
students with the least proficiency in English, the Department has no
evidence that cohorts defined by variables other than the number of
years of access to Title III services are being used by States to hold
districts to higher standards for their LEP students at the lowest
levels of English proficiency.
Changes: None.
Comments: Some commenters urged the Department to allow States to
``weight'' the scores of LEP students at the lowest proficiency levels
in AMAO
[[Page 61842]]
calculations because such students cannot be expected to attain
proficiency.
Discussion: Section 3122(a)(1) is clear that all Title III-served
LEP students must be included in AMAO determinations. It would be
contrary to the goals and purpose of NCLB to weight students
differently based on their abilities or to assume that some students
cannot reach proficiency in English.
Changes: None.
Comments: Numerous commenters expressed concern that with this
proposed interpretation, it appears the Department expects all students
to learn English in the same amount of time.
Discussion: AMAOs are district- and State-level targets for the
overall progress and attainment of proficiency in English among Title
III-served LEP students. The interpretation does not address the pace
at which any individual student will learn English or make predictions
or assumptions about individual growth in English language acquisition.
Furthermore, because Title III requires that AMAOs reflect students'
access and time in language instruction educational programs, the
interpretation expressly does not demand uniform language acquisition
expectations for all students. Rather it recognizes that the amount of
time LEP students participate in language instruction educational
programs is an essential element to consider in Title III
accountability determinations.
Changes: None.
Comments: One commenter expressed concern that the proposed
interpretation would permit States to decide whether or not to factor
time in a language instruction educational program into AMAO
determinations.
Discussion: Section 3122(a)(2)(A) of the ESEA is clear that States
must develop AMAOs in a manner that reflects the amount of time an
individual student has been enrolled in a language instruction
educational program. The Department requires States to implement this
provision and the final interpretation should not be interpreted
otherwise.
Changes: None.
Comments: One commenter asked whether cohorts can be established by
grade level for AMAO 1 and AMAO 2.
Discussion: AMAOs 1 and 2 reflect overall LEA and State targets for
the percent of students making progress and attaining English
proficiency, respectively, each year. Under Title III, grade level is
not considered in AMAO definitions and determinations and the
Department sees no justification for creating grade-level cohorts for
making AMAO determinations.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed interpretation, we determined
that it would be helpful to include information in the text of the
final interpretation regarding the need for States and subgrantees
using cohorts to meet all AMAO targets applied to each cohort in order
to meet AMAOs for the State or subgrantee overall. 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 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 AMAO 1. 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. We have included this
information in the final interpretation.
Changes: We have revised the interpretation to incorporate
language, originally included in the explanation of the proposed
interpretation, indicating that States and subgrantees using cohorts
must meet all AMAO targets for each cohort in order to meet the AMAOs
for the State or subgrantee overall.
Final Interpretation. The Secretary interprets Title III to mean
that (a) States may, but are not required to, establish ``cohorts'' for
AMAO targets, calculations, and determinations; and (b) if States set
separate AMAO targets for separate groups or ``cohorts'' of LEP
students served by Title III they may do so based only on the amount of
time (for example, number of years) such students have had access to
language instruction educational programs. The plain language in
section 3122(a)(2)(A) of the ESEA specifically provides that, in
developing AMAOs, States must take into account the time a student has
spent in a language instruction educational program. It is the
Secretary's interpretation that it would be inconsistent with this
statutory language to set different expectations for different Title
III-served LEP students on any other basis, such as students' current
language proficiency, individual abilities, or time residing in the
United States.
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
and subgrantees must meet all of the AMAO targets applied to each
cohort of LEP students in order to be considered to have met AMAOs for
the State or subgrantee overall.
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 of the ESEA.
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 all ELP assessment
data and other applicable data from each of the members in a 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 a number of cases, have required States
to aggregate and compile results across LEAs and compute a new
``consortium-wide AYP.'' The Department is also aware that some States
use different methods to calculate AMAOs for various consortia within
their States.
In the notice of proposed interpretations, the Secretary stated
that States are required to hold consortia, like any other eligible
subgrantee, accountable for meeting AMAOs. However, the Secretary
proposed to interpret Title III to allow States discretion about
whether to treat subgrantees that consist of more than one LEA as a
single entity or separate entities for the purpose of calculating each
of the three AMAOs required under Title III.
Analysis of Comments and Changes
Comments: The vast majority of commenters supported the proposed
interpretation to give States discretion about whether to treat
subgrantees that consist of more than one LEA as a single entity or as
separate entities for the purpose of calculating the three AMAOs
required under Title III. However, commenters requested clarification
regarding whether a State can pool data for some AMAOs and not others,
and
[[Page 61843]]
whether States can use a ``small district review,'' similar to what
States are permitted to use under Title I, for LEAs that do not have
enough LEP students to make separate AMAO determinations.
Discussion: The Department requires that States make AMAO
determinations for all subgrantees, including all LEAs that are members
of a consortium. This interpretation gives States discretion about
whether to make ``stand alone'' AMAO determinations for some LEAs
within a consortium and whether and how to combine data for consortium-
wide AMAO determinations.
Under the final interpretation, States must adopt ``decision
rules'' for making AMAO determinations for consortia. These decision
rules need not be uniform across all consortia, but must be consistent
for consortia that are made up of similar types of LEAs. That is, we
would expect the same decision rules to apply, for example, to
consortia made up of several small LEAs, or to consortia made up of one
or more large LEAs with several small LEAs. States must be able to
demonstrate that the decision rules maximize accountability for
consortia in the State. If AMAOs can be calculated separately for some
LEAs in a consortium, States may calculate AMAOs for those LEAs
individually. For consortia in which some or all of the LEAs are too
small to make individual AMAO determinations, States have the option of
combining all data within the consortium or combining the data for all
of the LEAs that are too small to calculate separate AMAO
determinations. States also may propose, when appropriate, to combine
data for some AMAOs but not others within a consortium. Note that, as
described in Interpretation 6, in cases where use of a State's minimum
group size renders AMAO determinations impossible for a consortium
member, a State must not apply the State's minimum group size to an
individual member and, instead, must combine or aggregate data with
other LEAs in the consortium to ensure that AMAO determinations are
made.
A State with consortia must include in its Title III State plans,
the decision rules for how it makes AMAO determinations for consortia.
Finally, the Department is not permitting, with this
interpretation, a small LEA review for Title III accountability
purposes. It is unlikely that a district that is small enough to
require a small LEA review would qualify for Title III funds. If such a
small district is part of a consortium, the Department requires that
AMAO determinations be made--whether that requires the district to pool
AMAO data with other districts in the consortium or forgo using a
minimum group size in order to make AMAO determinations.
Changes: We have added language to the final interpretation to
emphasize that a State with consortia must include, in its Title III
State plans, the decision rules for how it makes AMAO determinations
for its consortia. We also have added language to require States to
ensure that these decision rules maximize accountability under Title
III.
Comments: None.
Discussion: The Department intends to ensure that consortia are
held accountable for meeting AMAOs and believes this is best
accomplished if States adopt a set of consistent decision rules for
implementing AMAOs for consortia within each State. States should be
prepared to demonstrate, with data, that the method used to calculate
AMAOs for consortia will yield AMAO determinations for all subgrantees
and hold all consortia members accountable for ensuring that Title III-
served LEP students acquire English language skills and for making AYP.
If a State intends to, among other things, combine assessment or
other data, apply a minimum group size, create a ``consortium AYP''
calculation, or treat individual LEAs separately for the purposes of
calculating AMAOs, the State must 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 will require the State to submit, for approval, an amendment
to its Consolidated State Plan, required under section 3113 of the
ESEA.
Changes: We have revised the interpretation to emphasize that a
State with consortia must include, in its Title III State plan, the
decision rules for how it makes AMAO determinations for consortia. We
also have added language to require States to ensure that these
decision rules maximize accountability under Title III.
Final Interpretation: The Secretary requires States to hold
consortia, like any other eligible subgrantee, accountable for meeting
AMAOs. However, the Secretary interprets Title III to allow States
discretion about whether to treat subgrantees that consist of more than
one LEA/subgrantee as a single entity or as separate entities for the
purpose of calculating the three AMAOs required under Title III. States
will, 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. States also have discretion
in determining how they separate or combine data for calculating each
AMAO. States must develop decision rules for making AMAO determinations
for consortia that maximize accountability for consortia; these
decision rules must be included in their Title III State Plans.
10. Implementation of Corrective Actions under Title III.
Background. Section 3122(b) of the ESEA describes the actions that
a State and its subgrantee must take if a 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.
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 the proposed interpretation was to make absolutely 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.
In the notice of proposed interpretations, the Secretary reinforced
the proper implementation of the accountability provisions of Title
III, which require that all States make determinations for each of
three AMAOs--making progress in English
[[Page 61844]]
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. The Secretary also proposed to clarify
States' responsibilities to communicate with parents and subgrantees
about AMAO results.
Analysis of Comments and Changes
Comments: One commenter stated that it was unfair for the
Department to conclude that a subgrantee has not made its AMAOs if it
misses only one of the three AMAO targets. The commenter questioned
whether this was a statutory requirement.
Discussion: Section 3122(a)(3)(A) of the ESEA states that AMAOs
must provide for, at a minimum, increases in AMAO 1 and AMAO 2, and
making AYP for the LEP subgroup (AMAO 3). Section 3122(b)(1) requires
States to hold LEAs accountable for meeting AMAOs, and to require an
LEA to adopt an improvement plan if the LEA fails to meet those AMAOs
for two consecutive years. This statutory language supports the
Secretary's interpretation that, each year, all of the AMAOs must be
met. Furthermore, increases in proficiency, without increases in
students attaining proficiency or subgrantees meeting AYP, would not be
sufficient to achieve the goals of Title III.
Changes: None.
Comments: One commenter expressed concern that States would be
required to retroactively apply the final interpretations to districts.
The commenter argued that Title III subgrantees should have the
opportunity to change the way they make AMAO determinations to be
consistent with the final interpretations before a State takes
enforcement action. Some commenters argued that the starting point or
``year 1'' for Title III accountability determinations and requisite
sanctions should start when the final interpretations are issued
because it would be unfair to apply the new interpretations
retroactively.
Discussion: This interpretation was included in the notice of
proposed interpretations because, in the Department's monitoring of
States, we found that many States (23) had not made any or all AMAO
determinations since NCLB was implemented in 2003. In addition, several
States made AMAO determinations, but did not provide information about
the determinations to LEAs/subgrantees or parents, as required in
section 3302(b) of the ESEA. The Department has made clear to States
that did not correctly make AMAO determinations in the past that they
must ensure that LEAs/subgrantees and parents are informed that the
State did not make AMAO determinations or did not make accurate AMAO
determinations; make AMAO determinations for every year using at least
AMAO 3; and make complete AMAO determinations moving forward.\14\ That
said, we are not requiring States to retroactively implement these
interpretations. For example, States are not expected to recalculate
AMAOs for past years; nor would we require States to change existing
AMAO determinations based on the final interpretations. The
interpretations simply reiterate what Title III already requires
regarding implementation of Title III accountability provisions and
what we are requiring of States and subgrantees going forward.
---------------------------------------------------------------------------
\14\ See: http://www.ed.gov/about/offices/list/oela/funding.html
for an explanation of conditions placed on State Title III, Part A
grants regarding a State's failure to make AMAO determinations or
making incomplete AMAO determinations for school years 2002-2003,
2003-2004, 2004-2005, and 2005-2006 and the Department's
expectations for State corrective actions to ensure that all AMAO
determinations are made and that all States are in compliance with
the accountability requirements of Title III moving forward.
---------------------------------------------------------------------------
Changes: None.
Final Interpretation. Through this notice, the Secretary reinforces
the proper implementation of the requirements in section 3122(b) of the
ESEA. The Secretary interprets section 3122(b) to require that all
States comply with Title III requirements and make determinations for
each of the three AMAOs--making progress in English proficiency (AMAO
1), attaining English proficiency (AMAO 2), and making 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 Secretary also
interprets 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.
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 the
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 solicited public comment
on these interpretations in order to consider public input, and is
providing additional details and clarifications in this 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.
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: October 14, 2008.
Margaret Spellings,
Secretary of Education.
[FR Doc. E8-24702 Filed 10-16-08; 8:45 am]
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