[Federal Register Volume 74, Number 217 (Thursday, November 12, 2009)]
[Rules and Regulations]
[Pages 58436-58525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27161]



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Part III





Department of Education





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34 CFR Chapter II



State Fiscal Stabilization Fund Program; Final Rule

  Federal Register / Vol. 74, No. 217 / Thursday, November 12, 2009 / 
Rules and Regulations  

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DEPARTMENT OF EDUCATION

34 CFR Subtitle B, Chapter II

[Docket ID ED-2009-OESE-0007]
RIN 1810-AB04


State Fiscal Stabilization Fund Program

Catalog of Federal Domestic Assistance (CFDA) Numbers: 84.394 
(Education Stabilization Fund) and 84.397 (Government Services Fund)

AGENCY: Department of Education.

ACTION: Final requirements, definitions, and approval criteria.

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SUMMARY: The Secretary of Education (Secretary) establishes 
requirements, definitions, and approval criteria for the State Fiscal 
Stabilization Fund (Stabilization or SFSF) program. The Secretary may 
use one or more of these requirements, definitions, and approval 
criteria in awarding funds under this program in fiscal year (FY) 2010. 
These requirements, definitions, and approval criteria are based on the 
assurances regarding education reform that grantees are required to 
provide in exchange for receiving funds under the Stabilization 
program. We take this action to specify the data and information that 
grantees must collect and publicly report with respect to those 
assurances and to help ensure grantees' ability to collect and publicly 
report the required data and information.

DATES: These requirements, definitions, and approval criteria are 
effective January 11, 2010.

FOR FURTHER INFORMATION CONTACT: James Butler, State Fiscal 
Stabilization Fund Program, U.S. Department of Education, 400 Maryland 
Ave., SW., Room 3E108, Washington, DC 20202. Telephone: (202) 260-2274 
or by e-mail: [email protected].
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: The State Fiscal Stabilization Fund program 
provides approximately $48.6 billion in formula grants to States to 
help stabilize State and local budgets in order to minimize and avoid 
reductions in education and other essential services, in exchange for a 
State's commitment to advance essential education reform in key areas.
    Background: Section 14005(d) of Division A of the American Recovery 
and Reinvestment Act of 2009 (ARRA) requires a State receiving funds 
under the SFSF program to provide assurances in four key areas of 
education reform: (a) Achieving equity in teacher distribution, (b) 
improving collection and use of data, (c) standards and assessments, 
and (d) supporting struggling schools. For each area of reform, the 
ARRA prescribes specific actions that the State must assure that it 
will implement. In addition, section 14005(a) of the ARRA requires a 
State that seeks funds under the Stabilization program to submit an 
application to the Department containing such information as the 
Secretary may reasonably require. In this notice, we establish specific 
data and information requirements (the assurance indicators and 
descriptors) that a State receiving funds under the SFSF program must 
meet with respect to the statutory assurances. We also establish 
specific requirements for a plan that a State must submit (the State 
plan), as part of its application for the second phase \1\ of funding 
under the SFSF program, describing its ability to collect and publicly 
report the required data and other information. Together, these two 
sets of requirements will provide transparency on the extent to which a 
State is implementing the actions for which it has provided assurances. 
Increased access to and focus on this information will better enable 
States and other stakeholders to identify strengths and weaknesses in 
education systems and determine where concentrated reform effort is 
warranted. We also intend to use the data and information that States 
collect and publicly report in assessing whether a State is qualified 
to participate in and receive funds under other reform-oriented 
programs administered by the Department.
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    \1\ The Department is awarding SFSF program funds in two phases. 
In the first phase, the Department awarded 67 percent of a State's 
Education Stabilization Fund allocation, unless the State 
demonstrated that additional funds were required to restore FY 2009 
State support for education, in which case the Department awarded 
the State up to 90 percent of that allocation. In addition, the 
Department awarded 100 percent of each State's Government Services 
Fund allocation in Phase I. The Department will award the remainder 
of a State's Education Stabilization Fund allocation in the second 
phase. A table listing the allocations to States under the SFSF 
program is available at: http://www.ed.gov/programs/statestabilization/funding.html.
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    As discussed elsewhere in this notice, an assurance indicator or 
descriptor may relate to data or other information that States 
currently collect and report to the Department, or to data or other 
information for which the Department is itself the source. In those 
cases, we do not establish any new data or information collection 
requirements for a State; rather, the Department will provide the State 
with the relevant data or other information that the State will confirm 
and publicly report.
    The Department recognizes that requests for data and information 
should reflect an integrated and coordinated approach among the various 
programs supported with ARRA funds, particularly the SFSF, Race to the 
Top, School Improvement Grants (SIG), and Statewide Longitudinal Data 
Systems Grant programs. Accordingly, the Department has evaluated the 
requirements and definitions for this program in context with those 
other programs.
    Section 14005(d)(2) of the ARRA requires a State receiving funds 
under the SFSF program to assure that it will take actions to improve 
teacher effectiveness and comply with section 1111(b)(8)(C) of the 
Elementary and Secondary Education Act of 1965, as amended (ESEA) (20 
U.S.C. 6311(b)(8)(C)), in order to address inequities in the 
distribution of highly qualified teachers between high- and low-poverty 
schools and to ensure that low-income and minority children are not 
taught at higher rates than other children by inexperienced, 
unqualified, or out-of-field teachers. The indicators the Department 
has established will measure the extent to which a State is taking such 
actions and will provide data and other information on: (1) Student 
access to highly qualified teachers in high- and low-poverty schools, 
(2) current strategies and efforts to address inequities in the 
distribution of inexperienced, unqualified, or out-of-field teachers, 
(3) how teacher and principal performance is evaluated and how the 
results of these evaluations are used, and (4) the distribution of 
performance evaluation ratings or levels among teachers and principals.
    Section 14005(d)(3) requires each State to assure that it will 
establish a longitudinal data system that includes the 12 elements 
described in section 6401(e)(2)(D) of the America COMPETES Act. The 
Department has established an indicator that will measure the extent to 
which States have implemented statewide longitudinal data systems that 
include all of the required elements. These elements constitute the 
minimum requirements of a modern statewide longitudinal data system. 
Such a system will enable States, local educational agencies (LEAs), 
and schools to, among other things: Follow student academic progress as 
a student moves from grade to grade; identify persistently lowest-
achieving schools; and evaluate the effectiveness of specific programs.
    The Department has established additional indicators identifying

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whether a State provides teachers in grades and subjects in which it 
administers assessments with student growth data and with reports of 
individual teacher impact on student achievement. We believe that 
teachers' receipt of these data and reports should be a natural product 
of a statewide longitudinal data system that includes the required 
elements, particularly the requirements that such a system includes 
unique statewide student identifiers and a teacher identifier system 
with the ability to match teachers to students. Moreover, we believe 
that these are key examples of how reliable, high-quality data from a 
State's system can drive education reform in general and improvements 
in instructional programs in particular.
    The ARRA also requires a State receiving funds under the SFSF 
program to assure that it will: (A) Enhance the quality of the academic 
assessments it administers pursuant to section 1111(b)(3) of the ESEA 
(20 U.S.C. 6311(b)(3)) through activities such as those described in 
section 6112(a) of the ESEA (20 U.S.C. 7301a(a)); (B) comply with the 
requirements of paragraphs (3)(C)(ix) and (6) of section 1111(b) of the 
ESEA (20 U.S.C. 6311(b)) and section 612(a)(16) of the Individuals with 
Disabilities Education Act (20 U.S.C. 1412(a)(16)) related to the 
inclusion of children with disabilities and limited English proficient 
students \2\ in State assessments, the development of valid and 
reliable assessments for those students, and the provision of 
accommodations that enable their participation in State assessments; 
and (C) take steps to improve State academic content standards and 
student academic achievement standards for secondary schools consistent 
with section 6401(e)(1)(A)(ii) of the America COMPETES Act (20 U.S.C. 
9871(e)(1)(A)(ii)). To assess the extent to which a State is taking 
these actions, we are requiring that the State collect and publicly 
report data and other information regarding State assessment systems, 
including on the assessment of students with disabilities and limited 
English proficient students; State National Assessment of Educational 
Progress (NAEP) data; and data on the number of students who graduate 
from high school using a four-year adjusted cohort graduation rate, 
enroll in an institution of higher education (IHE) within 16 months of 
receiving a regular high school diploma, and complete at least one year 
of college credit (towards a degree) within two years of enrollment.
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    \2\ The Department recognizes that stakeholders often use terms 
such as ``English language learners'' rather than ``limited English 
proficient students'' when referring to students who are acquiring 
basic English proficiency and developing academic English skills. 
However, because the ESEA defines the term ``limited English 
proficient,'' and both the statute and the implementing regulations 
use this term, as well as the phrase ``students with limited English 
proficiency,'' we will continue to use the latter terms in this 
notice.
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    As many States prepare to significantly improve the rigor and 
effectiveness of their standards and assessment systems, we believe 
this information will provide stakeholders with vital transparency on 
the current status of those systems and inform efforts that are 
currently underway to improve them. The Department continues to 
encourage States to work together to develop and implement common 
internationally benchmarked standards and assessments aligned to those 
standards in order to ensure that students are college- and career-
ready. However, until those standards and assessments are complete, 
States need to continue to ensure both the quality of their current 
standards and assessments, and that students are provided 
accommodations as necessary.
    Section 14005(d)(5) of the ARRA requires a State receiving funds 
under the SFSF program to provide an assurance that it will comply with 
the requirements of section 1116(b)(7)(C)(iv) and section 1116(b)(8)(B) 
of the ESEA (20 U.S.C. 6316(b)(7)(C)(iv) and 6316(b)(8)(B)) with 
respect to Title I schools identified for corrective action and 
restructuring. In order to provide indicators of the extent to which a 
State is implementing this statutory assurance, we are requiring that 
the State provide data on the extent to which dramatic reforms to 
improve student academic achievement are implemented in Title I schools 
in improvement under section 1116(b)(1)(A) of the ESEA,\3\ in 
corrective action, or in restructuring and secondary schools that are 
eligible for, but not receiving, Title I funds. Additionally, a State 
must provide data on the operation and performance of its charter 
schools. SFSF definitions and requirements for these indicators and 
descriptors will, where appropriate, be consistent with those in the 
Department's Race to the Top Fund and SIG notices to encourage and 
enable States to plan effectively and use diverse funding sources to 
accomplish consistent goals.
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    \3\ Although the statutory assurance concerns only Title I 
schools in corrective action and restructuring, we are requiring 
that States include Title I schools in improvement as well when 
providing data on the extent to which dramatic reforms to improve 
student academic achievement are being implemented. Making this 
addition would be consistent with the school reform strategies that 
States are implementing using funds available under section 1003(g) 
of the ESEA (20 U.S.C. 6303(g)) (School Improvement Grants), which 
are intended to be applied to schools in improvement as well as to 
schools in corrective action or restructuring.
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    In addition to the specific data and information requirements 
relating to the four ARRA education reform assurances, we also 
establish requirements for a plan that a State must submit to the 
Department. In general, the State plan must describe the State's 
current ability to collect the data or other information needed for the 
assurance indicators and descriptors as well as the State's current 
ability to make the data or information easily available to the public. 
If the State is currently able to fully collect and publicly report the 
required data or other information at least annually, the State must 
provide the most recent data or information with its plan. If a State 
is not currently able to collect or publicly report the data or other 
information at least annually, the plan must describe the State's 
process and timeline for developing and implementing the means to do so 
as soon as possible but no later than September 30, 2011, the date by 
which States must obligate funds received under the SFSF program 
consistent with section 421 of the General Education Provisions Act 
(GEPA) (20 U.S.C. 1225(b)). The State plan must describe the State's 
collection and public reporting abilities with respect to each 
individual indicator or descriptor.
    As discussed previously, the data or information needed for an 
assurance indicator or descriptor is in some cases already reported to 
the Department by the State, or is provided by the Department. In those 
cases, it is understood that the State is currently able to collect the 
data or information; accordingly, the State's plan need only address 
the State's ability to publicly report the data or information, and the 
State need not include the data or information with its plan.
    The State plan requirements apply generally across the education 
reform areas discussed above with the exception of education reform 
area (b) (improving collection and use of data) and new Indicators 
(c)(10) and (c)(11) (proposed Indicators (c)(11) and (c)(12)), for 
which we establish slightly different plan requirements. For example, 
for Indicator (b)(1) we require that a State describe in its plan 
whether the State's data system includes the required elements of a 
statewide longitudinal data system and, if the data system does not, 
the State's process and timeline for developing and implementing a 
system

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that meets all requirements as soon as possible but no later than 
September 30, 2011. As this indicator relates to a State's ability to 
collect and publicly report data, however, these requirements do not in 
effect differ substantially from the generally applicable State plan 
requirements (i.e., the requirements that the State describe its 
abilities to collect and publicly report data or other information for 
a given indicator or descriptor). Moreover, the development and 
implementation of such a statewide longitudinal data system is 
intrinsic to a State's ability to collect and publicly report the data 
required by certain other indicators (e.g., the indicators on student 
enrollment and credit completion in IHEs after graduation from high 
school).
    In the case of new Indicators (c)(11) and (c)(12), regarding the 
data States will collect from IHEs on student enrollment and credit 
completion, the State is required to, at a minimum, possess the ability 
to collect and publicly report the data by September 30, 2011. As a 
result, a State plan need only address the development of capacity, and 
not implementation and public reporting for these indicators.
    In addition to requirements relating to a State's ability to 
collect and publicly report data or other information for the 
respective assurance indicators and descriptors, we establish other 
general requirements for the State plan relating to the State's 
institutional infrastructure and capacity, the nature of any technical 
assistance or other support provided, the budget for implementing the 
plan, and the processes the State employs to ensure data and 
information quality and student privacy.
    For the purposes of this program, the data and information are 
largely intended for public use, rather than for Federal reporting. 
Individual States and communities have the greatest power to hold their 
LEAs and schools accountable for the reforms that are in the best 
interest of their students. Rather than the Department collecting and 
warehousing this information, it is our intention that States and LEAs 
will make the information available to the public in a manner that is 
useful for stakeholders in understanding key information about 
education in each State and community. The Department believes that the 
most effective and expeditious way for States to share information with 
the public is via the Internet. Accordingly, any State that receives 
SFSF funding in Phase II must maintain a public Web site that provides 
the data and information that are responsive to the indicator and 
descriptor requirements. If a State does not currently provide the 
required data and information, it must provide on this Web site its 
plan with respect to the indicator or descriptor and its reports on its 
progress in implementing that plan.
    In developing a plan as required in this notice, the State is 
encouraged to consult with key stakeholders, such as superintendents, 
educators, content experts, and parents as well as teachers' union, 
business, community, and civil rights leaders. Such consultation would 
ensure that these stakeholders are aware of the State's current ability 
to meet the requirements, can provide input on the means the State will 
develop to comply with the requirements, and can prepare to assist the 
State in implementing those means.

    Program Authority: American Recovery and Reinvestment Act of 
2009, Division A, Title XIV--State Fiscal Stabilization Fund, Public 
Law No. 111-5.

    We published a notice of proposed requirements, definitions, and 
approval criteria (NPR) for this program in the Federal Register on 
July 29, 2009 (74 FR 37837-37872). That notice contained background 
information and our reasons for proposing the particular requirements, 
definitions, and approval criteria. In addition to some minor editorial 
changes, there are several substantive differences between the NPR and 
this notice of final requirements, definitions, and approval criteria 
(NFR). These changes are summarized in the next section and described 
in greater detail in the Analysis of Comments and Changes section 
elsewhere in this notice.

Major Changes in the Final Requirements, Definitions, and Approved 
Criteria

    The following is a summary of the major substantive changes in 
these final requirements from the requirements proposed in the NPR. 
(The rationale for each of these changes is discussed in the Analysis 
of Comments and Changes section elsewhere in this preamble.)
     The NFR makes several changes to the requirements for 
Achieving equity in teacher distribution. The specific changes are:

--The Department is adding a new Indicator (a)(2) that requires each 
State to confirm whether the State's Teacher Equity Plan (part of the 
State's Highly Qualified Teacher Plan) fully reflects the steps the 
State is currently taking to ensure that students from low-income 
families and minority students are not taught at higher rates than 
other students by inexperienced, unqualified, or out-of-field teachers 
(as required in section 1111(b)(8)(C) of the ESEA).
--Descriptors (a)(1) and (a)(2) have been revised to require States 
also to describe the use of results from teacher and principal 
evaluation systems in decisions regarding teacher and principal 
development, compensation, promotion, retention, and removal.
--New Indicator (a)(3) (proposed Indicator (a)(2)) and new Indicator 
(a)(5) (proposed Indicator (a)(4)) have been revised to have States 
indicate whether the systems used to evaluate the performance of 
teachers include student achievement outcomes or student growth data as 
an evaluation criterion.

     The NFR makes the following changes to the requirements 
for Improving collection and use of data:

--New Indicator (b)(2) requires that each State indicate whether it 
provides student growth data on their current students and the students 
they taught in the previous year to, at a minimum, teachers of reading/
language arts and mathematics in the grades in which the State 
administers assessments in those subjects, in a manner that is timely 
and informs instructional programs.
--New Indicator (b)(3) (proposed Indicator (b)(2)) has been revised to 
require each State to indicate whether it provides teachers of reading/
language arts and mathematics in grades in which the State administers 
assessments in those subjects with reports of individual teacher impact 
on student achievement on those assessments. Under proposed Indicator 
(b)(2), a State would have been required to indicate whether it 
provides such teachers with data on the performance of their students 
on those assessments that include estimates of individual teacher 
impact on student achievement, in a manner that is timely and informs 
instruction.

     The final requirements make several changes to the 
indicators for Standards and assessments. The specific changes are:

--Proposed Indicator (c)(2), which required each State to indicate 
whether it was engaged in activities to enhance the quality of its 
assessments, and Proposed Descriptor (c)(1), which required States to 
describe those activities, have been removed from the final 
requirements.
--New Indicator (c)(11) (proposed Indicator (c)(12)) has been modified 
to require a State to provide data on student enrollment for students 
who enroll in an IHE within 16 months of

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receiving a regular high school diploma. Proposed Indicator (c)(12) did 
not include a timeframe for this data element.
--New Indicator (c)(12) (proposed Indicator (c)(13)) now requires that 
a State collect data on progress toward a postsecondary degree only for 
students who attend a public IHE in the State. Under proposed Indicator 
(c)(13), a State would have provided these data for students who 
attended public IHEs both in State and out of State.

     The NFR makes several changes to the requirements for 
Supporting struggling schools. The specific changes are:

--Indicator (d)(1) and Indicator (d)(2) now require that a State also 
publicly report on average statewide school gains in the ``all 
students'' category and for each student subgroup (as defined under 
section 1111(b)(2)(C)(v) of the ESEA).
--New Descriptor (d)(1) requires each State to provide its definition 
of persistently lowest-achieving schools.
--Indicator (d)(3) now requires a State to provide the number and 
identity of Title I schools in improvement, corrective action, or 
restructuring that are persistently lowest-achieving schools.
--Indicator (d)(4) now requires a State to provide, of the persistently 
lowest-achieving Title I schools in improvement, corrective action, or 
restructuring, the number and identity of schools that have been turned 
around, restarted, closed, or transformed in the last year.
--Indicator (d)(5) now requires a State to provide the number and 
identity of secondary schools that are eligible for, but do not 
receive, Title I funds that are persistently lowest-achieving schools.
--Indicator (d)(6) now requires a State to provide, of the persistently 
lowest-achieving secondary schools that are eligible for, but do not 
receive, Title I funds, the number and identity of schools that have 
been turned around, restarted, closed, or transformed in the last year.
--New Indicator (d)(9) requires a State to provide the number and 
percentage of charter schools that have made progress on State 
assessments in reading/language arts in the last year.
--New Indicator (d)(10) requires a State to provide the number and 
percentage of charter schools that have made progress on State 
assessments in mathematics in the last year.
--New Indicators (d)(11) and (d)(12) (proposed Indicators (d)(8) and 
(d)(9)) require States to provide data and information on charter 
schools that have been closed within each of the last five years 
instead of over the last five years.

     The NFR makes several changes to the requirements under 
State Plans. The specific changes are:

--The NFR adds requirements regarding new Indicator (b)(2). For new 
Indicator (b)(2), the State must provide student growth data on their 
current students and students they taught in the previous year to, at a 
minimum, teachers of reading/language arts and mathematics in grades in 
which the State administers assessments in those subjects, in a manner 
that is timely and informs instructional programs. A State must 
indicate whether the State provides teachers with such data; if the 
State does not provide teachers with such data, it must submit a plan 
for developing and implementing, as soon as possible but no later than 
September 30, 2011, the means to provide teachers with such data.
--The NFR revises the requirements for new Indicator (b)(3) (proposed 
Indicator (b)(2)). For new Indicator (b)(3) (proposed Indicator 
(b)(2)), a State must indicate whether it provides teachers of reading/
language arts and mathematics in grades in which the State administers 
assessments in those subjects with reports of individual teacher impact 
on student achievement on those assessments. If the State does not 
provide those teachers with such reports, it must submit a plan for how 
it will develop and implement the means to do so. Under the NPR, the 
State would have been required to provide those teachers with such 
reports (consistent with the indicator); if the State did not provide 
those teachers with such reports, it would have been required to submit 
a plan for how it would develop and implement the means to do so as 
soon as possible but no later than September 30, 2011.
--The NFR revises the requirements for new Indicators (c)(11) and 
(c)(12). For new Indicators (c)(11) and (c)(12) (proposed Indicators 
(c)(12) and (c)(13)), if a State will develop but not implement the 
means to collect and publicly report the data by September 30, 2011, it 
must submit a plan for how it will develop the means to collect and 
publicly report the data and provide evidence, by September 30, 2011, 
to demonstrate that it has developed the means to collect and publicly 
report that data. If a State will develop and implement those means 
(i.e., the State will collect and publicly report those data) by 
September 30, 2011, the State must submit a plan for how it will 
collect and publicly report the data by the established deadline.

     The NFR includes definitions for publicly report, student 
growth, persistently lowest-achieving schools, turnaround model, 
restart model, school closure, transformation model, and increased 
learning time.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPR, 60 parties 
submitted comments on the proposed requirements, definitions, and 
approval criteria. An analysis of the comments and changes to the 
requirements, definitions, and approval criteria since publication of 
the NPR follows.
    We discuss substantive issues under the sections of the 
requirements to which they pertain. Generally, we do not address 
technical or minor changes, or suggested changes that we are not 
authorized to make under applicable law.

Indicator and Descriptor Requirements in General

    Comment: A few commenters asserted that the proposed data and 
information requirements do not reflect Congressional intent that the 
SFSF program relieve the economic crisis in schools and districts 
nationwide. Commenters stated that SFSF funds are intended to help 
maintain support for education, not to support new programs or 
initiatives. One commenter noted that requirements for new programs or 
initiatives may be appropriate for competitive programs such as the 
Race to the Top Fund, but not for the SFSF program. In contrast, 
another commenter asserted that States should use SFSF funds for more 
than simply maintaining support for current education programs.
    Discussion: The Department believes that SFSF funds should be used 
both to help restore support for education and to advance education 
reform. When States received funds under Phase I of the SFSF program, 
they provided assurances that they would take steps to address the key 
reform areas required under the ARRA. The data collected will provide 
information on the status of States' efforts to comply with these 
assurances.
    Changes: None.
    Comment: A number of commenters supported the Department's emphasis 
on the four reform areas and noted that focus on those four areas will 
improve

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educational outcomes for students. Several commenters also expressed 
support specifically for the focus on data systems and improving 
teacher quality. One commenter supported linking student data to 
teachers. Some commenters stated that the requirements outlined in the 
notice were well-aligned with the reform areas of ARRA. Another 
commenter believed that the Department should have worked to ensure 
greater alignment among the four reform areas. A few commenters 
believed the proposed requirements went beyond the intention of the 
ARRA, and a few commenters stated that they did not believe the ARRA 
provided the Department with the statutory authority to require States 
to collect and publicly report the data and information as proposed in 
the NPR. One commenter stated that the proposed requirements would be 
an intrusion by the Federal Government into State and local control of 
education.
    Discussion: In its application for initial funding under the SFSF 
program, each State was required, consistent with the statute, to 
provide an assurance that it would take steps to advance reforms in 
achieving equity in teacher distribution, enhancing standards and 
assessments, and supporting struggling schools. Each State also 
provided an assurance that it would establish a statewide longitudinal 
data system. The Department believes the requirements as proposed in 
the NPR and established in final in this notice are consistent with the 
statutory intent and requirements of the ARRA and will provide 
comprehensive information on a State's progress in the four assurance 
areas. The data and information that States will publicly report under 
the indicators and descriptors will inform State and local reform 
efforts and enable the Department to verify that a State is fulfilling 
the commitments it made in order to receive ARRA funds.
    Changes: None.
    Comment: Many commenters supported the Department's emphasis on 
making the data and information collected under the SFSF program 
publicly available. Commenters also noted that increased access to the 
data and information would help inform decision-making and increase 
transparency around education reform.
    Discussion: The Department appreciates the commenters' support and 
agrees that the indicator and descriptor requirements will provide the 
public with valuable information on the status of education reform in 
their State.
    Changes: None.
    Comment: Several commenters requested that the Department provide 
States with a template for publicly reporting the data and information 
collected under the SFSF program. One commenter asserted that the 
Department must provide guidance to ensure that States fully understand 
the public reporting requirements. As an example, the commenter 
questioned what constitutes making the data ``easily accessible'' for 
parents and the general public. Another commenter questioned whether 
the lack of specific guidance from the Department on how to publicly 
report the information collected meant that we would allow States to 
use a variety of methods to meet their reporting obligation. The 
commenter encouraged the Department to provide States with flexibility 
in meeting these requirements. One commenter noted that the Department 
would need to consider the unique demographics of States when 
evaluating applications.
    Discussion: The Department agrees that it is important to have 
clear guidance on the public reporting that is required under this 
notice. Accordingly, we have added a definition of publicly report to 
provide additional specificity and direction. We will also provide 
guidance on how States may meet the public reporting requirements for 
this program, and will be available to provide technical assistance to 
States throughout the application and reporting process.
    Changes: The Department has added a definition of publicly report, 
which provides that the data or information required for an indicator 
or descriptor are made available to anyone with access to an Internet 
connection without having to submit a request to the entity that 
maintains the data and information in order to access that data and 
information. Under this definition, States are required to maintain a 
public Web site that provides the data and information that are 
responsive to the indicator and descriptor requirements. If a State 
does not currently provide the required data or information, it must 
provide on this Web site its plan with respect to the indicator or 
descriptor and its reports on its progress in implementing that plan.
    In light of our addition of the definition of publicly report, we 
have modified the indicators, descriptors, plan requirements, 
definitions, and approval criteria, as appropriate, to substitute the 
term ``publicly report'' for ``report.''
    Comment: Some commenters supported our intent to ensure consistency 
in collection and reporting requirements across the various programs 
funded under the ARRA. One commenter requested that the Department 
review the reporting requirements across all ARRA programs and use 
single data-element definitions for all programs in order to reduce 
redundant reporting and maintain transparency. A few commenters 
expressed concern that applications submitted for programs under the 
ARRA will be duplicative.
    Discussion: The Department is coordinating the implementation of 
the programs under the ARRA in order to support a comprehensive 
approach to education reform and to minimize the burden on States to 
the extent possible. To that end, where appropriate, the Department is 
developing consistent requirements and definitions for SFSF, the Race 
to the Top Fund, SIG, the Investing in Innovation Fund, the Teacher 
Incentive Fund, and other ARRA programs; those changes are discussed 
later in this notice. The Department will evaluate applications based 
on the specific approval criteria we have announced for each program, 
and recognizes that, in certain instances, States will provide similar 
information across applications.
    Changes: None.
    Comment: One commenter stated that the Department did not propose 
requirements that comprehensively address the four education reform 
areas. Specifically, the commenter believed more indicators are needed 
in areas addressing the closing of achievement gaps, improving overall 
student performance, and achieving equity between high- and low-
performing schools.
    Discussion: While we agree that additional information in the four 
reform areas could be valuable to the public, educators, and policy-
makers, we believe that adding the suggested indicators would be overly 
burdensome to States and LEAs. We believe the indicators and 
descriptors established in this notice generally provide sufficient 
data and information to measure State progress in the four reform areas 
for the purposes of the SFSF program. Additionally, the Department 
believes that meeting the requirement for each State to include all 12 
elements described in the America COMPETES Act in its statewide 
longitudinal data system will provide a State with the capability to 
collect, analyze, and report meaningful information on the 
effectiveness of its programs in closing the achievement gap and 
improving student outcomes.
    Changes: None.
    Comment: One commenter stated that the Department is missing a 
major

[[Page 58441]]

opportunity to learn more about the role of professional development in 
school reform. The commenter encouraged the Department to collect data 
on how States are using and improving professional development to 
increase the performance levels of educators and their students.
    Discussion: The Department agrees that professional development is 
an important factor in developing and supporting educators in improving 
their practices and encourages States and LEAs to collect and share 
data on professional development, but we do not believe that we should 
add an indicator requiring a State to report on professional 
development. However, we note that we have added a new indicator 
requiring States to make publicly available their Teacher Equity Plans, 
which include information on teacher professional development, and 
indicate if they have updated those plans. In addition, we have revised 
Descriptors (a)(1) and (a)(2) to require States to describe the use of 
results from teacher and principal evaluation systems in decisions 
regarding, among other things, professional development.
    Changes: The Department has added new Indicator (a)(2) and has also 
revised Descriptors (a)(1) and (a)(2); these changes are described in 
more detail in the section of this notice entitled Education Reform 
Area (a)--Achieving Equity in Teacher Distribution.
    Comment: One commenter stated that the Department should require 
each State to indicate whether the information it publicly reports 
includes information from charter schools and, if such information is 
not currently available, require the State to provide information in 
its State plan on the steps it will take to collect information on 
charter schools.
    Discussion: Under the requirements as established in this notice, 
States will publicly report information on charter schools that are 
LEAs in the same manner that they provide information on any LEA. 
Further, information on public charter schools that are not LEAs will 
be provided in the same manner as for other public elementary and 
secondary schools.
    Additionally, as proposed in the NPR and as established in this 
notice, the Department is requiring States to collect and publicly 
report information on the number of charter schools that are permitted 
to operate and that are actually operating in the State and each LEA 
(new Indicators (d)(7) and (d)(8) (proposed Indicators (d)(6) and 
(d)(7))). Moreover, and as discussed in greater detail later in this 
notice, the Department agrees that it is important to collect 
information on the academic achievement of students who attend charter 
schools and has added new Indicators (d)(9) and (d)(10), which measure 
the performance of charter school students on State assessments in 
reading/language arts and mathematics.
    Changes: The Department has added new Indicators (d)(9) and (d)(10) 
to education reform area (d). These changes are described in greater 
detail in the section of this notice entitled Education Reform Area 
(d)--Supporting Struggling Schools.
    Comment: A few commenters suggested that the Department create a 
sequence of reform requirements instead of asking States to implement 
simultaneous reforms in all areas. They specifically suggested the 
Department include goals, targets, or benchmarks for improving 
performance on the indicators and descriptors in order to move States 
closer to the goal of college and career readiness for all students.
    Discussion: Section 14005(d) of the ARRA requires States to take 
action in each of the education reform areas and the Department 
envisions that in order to achieve the reform goals States will address 
each reform area simultaneously. We do not believe it is necessary to 
establish goals, targets, or benchmarks for improving performance 
because the purpose of the indicator and descriptor requirements is to 
provide transparency on the extent to which a State is implementing the 
actions for which it provided an assurance in its application for 
initial SFSF funding.
    Changes: None.

Burden and Costs

    Comment: Many commenters expressed concern that States and LEAs do 
not have the financial resources necessary to collect and publicly 
report the data and information that the Department proposed to require 
of States. One commenter noted that in order to comply with the 
collection and public reporting requirements, LEAs would need to take 
staff away from other essential functions. Another commenter stated 
that the requirements should reflect the fact that the SFSF program 
will not provide an ongoing source of funding for States.
    Discussion: The Department acknowledges that there are costs 
associated with the data collection and public reporting requirements 
and encourages States to consider available sources of Federal funds to 
support this reporting. For example, a State may use SFSF Government 
Services funds to meet the Phase II application requirements. The 
Department has also raised the statutory caps on State administration 
under Title I, part A of the ESEA and part B, section 611 of the 
Individuals with Disabilities Education Act (IDEA) with respect to 
funds available for those programs under the ARRA in order to make it 
easier for States to meet ARRA reporting requirements.
    Further, in response to comments, the Department is reducing the 
burden on States. For example, the Department is not requiring States 
to provide estimates of teacher impact on student achievement (new 
Indicator (b)(3) (proposed Indicator (b)(2)) but is now requiring that 
States provide student growth data to teachers (new Indicator 
(b)(2)).\4\ In the NPR, the Department estimated that the total cost to 
States, LEAs, and IHEs of meeting the proposed requirements was 
approximately $61.7 million. Of that amount, approximately $30 million 
was associated with the costs of providing estimates of teacher impact 
on student achievement. The Department believes that providing teachers 
of reading/language arts and mathematics in grades in which the State 
administers assessments with student growth data will be much less 
costly.
---------------------------------------------------------------------------

    \4\ States are still required, however, to indicate whether they 
provide reports of individual teacher impact on student achievement 
through new Indicator (b)(3) (proposed Indicator (b)(2)) and, if 
they do not, to provide a plan for doing so.
---------------------------------------------------------------------------

    Furthermore, the Department believes that the potential benefits 
from collecting and publicly reporting this information (e.g., greater 
accountability, implementation of a statewide longitudinal data system 
to inform instruction, and more effective teacher and principal 
evaluation systems) outweigh the costs associated with the data 
requirements. The estimated costs and benefits of these requirements 
are described in greater detail in the Summary of Costs and Benefits 
section of this notice.
    Changes: The Department has revised the State Plan requirements for 
new Indicator (b)(3) (proposed Indicator (b)(2)) to remove the 
requirement that States provide estimates of teacher impact on student 
achievement.
    Comment: A few commenters claimed that the reporting requirements 
may lead to unnecessary costs for States and LEAs that have already 
invested time and effort in creating data systems or in implementing 
school reform programs that are not directly aligned with the assurance 
areas.
    Discussion: The Department does not believe States will need to 
significantly reconfigure current State data systems in order to meet 
the ARRA requirement to establish a statewide longitudinal

[[Page 58442]]

data system that includes the 12 elements identified in the America 
COMPETES Act (although a State may need to expand its data system in 
order to include all 12 data elements). The America COMPETES Act 
predates enactment of the ARRA, and States are already designing data 
systems that incorporate the America COMPETES Act elements. We note 
that the elements have also been incorporated into the application 
requirements and guidance for the Department's Statewide Longitudinal 
Data Systems Grant program.
    As part of the SFSF program, the Department is not requiring States 
to implement new school reform programs, but to publicly report on the 
current status of their programs and if they have implemented certain 
reform models in their persistently lowest-achieving schools.
    Changes: None.
    Comment: Several commenters supported our proposal to use data that 
the Department currently collects from States through EDFacts to meet 
the public reporting requirements of the program. Commenters noted that 
the use of these data would minimize some of the burden associated with 
the reporting requirements for this program.
    Discussion: The Department agrees with the comments and has 
attempted to reduce the reporting burden by using data from EDFacts and 
other readily available data whenever possible.
    Changes: None.

State Plan Requirements

    Comment: One commenter suggested that the Department require States 
to obtain the support of key stakeholders for the plan the State will 
develop to meet the SFSF requirements. Another commenter suggested that 
the Department require States to collaborate with youth-serving 
organizations in their planning efforts so as to ensure the success of 
every young person; the commenter recommended adding workforce 
organizations, child welfare and juvenile/criminal justice agencies, 
and child and youth-serving community-based organizations to the list 
of stakeholders with whom a State must consult when developing the 
State plan.
    Discussion: The Department recognizes the importance of 
collaboration and cooperation among educational agencies, community 
stakeholders, policy-makers, and youth-serving organizations. While the 
Department encourages States to consult with key stakeholders when 
developing the State plan, we do not believe it is necessary to require 
States to consult with stakeholders generally or with any specific 
group because there will be great variation across States as to the 
groups with whom it would be appropriate to consult.
    Changes: None.
    Comment: Many commenters indicated that it is unrealistic to 
require States to implement their plans by September 30, 2011. One 
commenter characterized the deadline as arbitrary. Another commenter 
noted that the deadline will not allow States to collect data 
reflecting the potentially positive impact of SFSF funds on student 
achievement. Commenters recommended reconsideration of this timeline. 
One commenter suggested that the Department grant individual States 
extensions of the deadline without requiring States to justify such 
extensions.
    Discussion: The Department believes that the requirements of the 
State plan provide critical information that is more useful to 
stakeholders if it is presented in a timely manner. Further, the 
Department believes that two years is an appropriate amount of time to 
implement a plan to collect and publicly report the required 
information. However, in recognition of existing State work in 
transitioning to the adjusted four-year cohort graduation rate, the 
Department has modified the plan requirements applicable to new 
Indicators (c)(11) and (c)(12) (proposed Indicators (c)(12) and 
(c)(13)) so that a State is required only to provide evidence that it 
has developed the means to collect and publicly report the data by the 
deadline.
    As discussed in more detail later in this notice, we are also 
revising the State plan requirements for new Indicator (b)(3) (proposed 
Indicator (b)(2)). For new Indicator (b)(3) (proposed Indicator 
(b)(2)), a State must indicate whether it provides teachers of reading/
language arts and mathematics in grades in which the State administers 
assessments in those subjects with reports of individual teacher impact 
on student achievement on those assessments. If the State does not 
provide those teachers with such reports, it must submit a plan for how 
it will develop and implement the means to do so. Under the NPR, the 
State would have been required to provide those teachers with such 
reports (consistent with the indicator); if the State did not provide 
those teachers with such reports, it would have been required to submit 
a plan for how it would develop and implement the means to do so as 
soon as possible but no later than September 30, 2011.
    Changes: The Department has revised the State plan requirements for 
new Indicator (b)(3) (proposed Indicator (b)(2)), new Indicator (c)(11) 
(proposed Indicator (c)(12)), and new Indicator (c)(12) (proposed 
Indicator (c)(13)). These revisions are discussed in greater detail 
later in this notice.

Applications and Approval Criteria

    Comment: Three commenters expressed concern regarding the timeline 
for submission of the SFSF Phase II application, given the extensive 
information the application requires. One commenter elaborated that the 
SFSF Phase II application timeline could negatively affect a State's 
ability to meet the Race to the Top application deadline because, in a 
July 29, 2009 Federal Register notice, the Department proposed that 
States must have an approved SFSF Phase II application to be eligible 
for Race to the Top funds. One of these commenters emphasized that SFSF 
Phase II funds are critical to preventing more serious school aid 
reductions than those currently under consideration in the State.
    Discussion: The Department will review Phase II applications 
submitted by the deadline, which we will publish in a separate notice 
in the Federal Register, on a timely basis to ensure that States will 
meet any Race to the Top eligibility requirements related to SFSF 
application approval and to provide additional resources expeditiously 
to support elementary, secondary, and postsecondary education.
    Changes: None.
    Comment: One commenter proposed that the Department include an 
additional approval criterion requiring States to demonstrate that they 
have expended their SFSF funds consistent with program requirements.
    Discussion: We do not believe that the suggested approval criterion 
is necessary. States will provide information on the uses of funds in 
the quarterly reports that they submit pursuant to section 1512 of the 
ARRA; these reports will be publicly available at http://www.recovery.gov. In addition, the Department will collect information 
on uses of SFSF funds through the annual performance reports States are 
required to submit under section 14008 of the ARRA. The annual 
performance reports will be made available to the public on the 
Department's Web site at http://www.ed.gov. Furthermore, during its 
monitoring of State implementation of the SFSF program, the Department 
will review State and local uses of program funds to ensure compliance 
with applicable requirements.
    Changes: None.

[[Page 58443]]

Indicator and Descriptor Requirements Education Reform Area (a)--
Achieving Equity in Teacher Distribution

Teacher Qualifications: Indicator (a)(1)

    Comment: Several commenters expressed support for our proposal to 
use existing data on teacher qualifications from the Department's 
EDFacts system for proposed Indicator (a)(1). These commenters believed 
that leveraging existing data in EDFacts would minimize collection and 
reporting burden on States and LEAs while still ensuring that high-
quality information is provided to the public. However, one commenter 
requested clarification as to the State's responsibilities for 
confirming the data in EDFacts.
    Discussion: In general, we have sought to ensure that existing data 
from the Department's EDFacts system (or other data for which the 
Department is itself the source) are used to populate the indicators 
for this program wherever possible so as to minimize the burden on 
States and LEAs. In this case, we believe that existing data in EDFacts 
on courses taught by highly qualified teachers is appropriate as a 
measure of States' compliance with the statutory assurance.
    As stated in the NPR, a State will not be required to perform any 
additional analysis or verification in confirming indicator data that 
are in EDFacts. We believe there are sufficient safeguards in place to 
ensure the completeness and accuracy of data submitted by States in 
EDFacts and do not expect or require a State to reexamine or refresh 
the data. Rather, the confirmation a State will provide is meant to be 
limited to an acknowledgment that the data provided by the Department 
are the same data submitted by the State.
    Changes: None.
    Comment: One commenter requested that the Department clarify how 
stakeholders should use the data reported for proposed Indicator (a)(1) 
to identify inequities in the distribution of highly qualified teachers 
across LEAs. Specifically, the commenter requested clarification on 
whether stakeholders should identify inequities by comparing the data 
generally for all LEAs across the State, or for subsets of LEAs in the 
State based on shared characteristics such as size or location.
    Discussion: The Department is requiring States to make publicly 
available data on the distribution of highly qualified teachers across 
LEAs so that educators, policymakers, and other stakeholders may 
address inequities in the distribution of teachers between high- and 
low-poverty schools. Decisions on how best to use the specific data 
should be made at the State and local levels.
    Changes: None.
    Comment: A few commenters recommended that the definitions of 
highest-poverty school and lowest-poverty school applicable to proposed 
Indicator (a)(1) be revised to require States to identify these schools 
specifically using data on student eligibility for free- or reduced-
price lunches under the Richard B. Russell National School Lunch Act 
(NSLA), rather than using the poverty measure chosen by the State. One 
of these commenters asserted that these terms should be given the same 
meaning across States to prevent inconsistencies in reporting and to 
ensure that the data reported by States can be aggregated at the 
national level.
    Discussion: The Department permits States to use a poverty measure 
of their choice when reporting data on courses taught by highly 
qualified teachers in the highest- and lowest-poverty schools in their 
Consolidated State Performance Reports and in the annual State Report 
Cards required under section 1111(h)(1) of the ESEA. While States may 
and frequently do use student eligibility for free- or reduced-price 
lunches under the NSLA as the poverty measure for reporting these data, 
this is not always the case. While the Department appreciates the 
concern for comparability of data for this indicator, we believe that 
requiring the use of student eligibility for free- or reduced-price 
lunches under the NSLA as the poverty measure for this indicator would 
introduce unnecessary confusion for States that use other poverty 
measures when reporting data on the poverty level of students in their 
schools.
    Changes: None.
    Comment: One commenter recommended that the Department include 
additional metrics relating to the equitable distribution of teachers 
that would require States to describe their plans for ensuring, 
consistent with the statutory assurance, that students from low-income 
families and minority students are not taught at higher rates than 
other children by inexperienced, unqualified, or out-of-field teachers, 
and to describe the measures States would use to evaluate and report on 
the implementation of those plans.
    Discussion: We agree with the commenter on the importance of 
States' developing plans to ensure equity in the qualifications of 
teachers serving disadvantaged students and their peers and evaluating 
the impact of those plans. We note, however, that, to assess States' 
compliance with the requirements of the ESEA referenced in the 
statutory assurance in this reform area (i.e., the requirements of 
section 1111(b)(8)(C)), the Department has previously required States 
to develop Highly Qualified Teachers State Plans. Included in these 
plans is a component (known as a ``Teacher Equity Plan'') in which the 
State describes the steps being taken to ensure that students from low-
income families and minority students are not taught at higher rates 
than other children by inexperienced, unqualified, or out-of-field 
teachers.\5\ Rather than include indicators that would collect 
information on this topic that is additional to or duplicative of the 
information already provided by States in their Teacher Equity Plans, 
we have added an indicator that requires States to indicate whether 
they have updated and publicly reported these plans.
---------------------------------------------------------------------------

    \5\ These plans are available at http://www.ed.gov/programs/teacherqual/hqtplans/index.html.
---------------------------------------------------------------------------

    Changes: We have revised the indicators in this education reform 
area to include a new Indicator (a)(2), which requires a State to 
confirm whether the State's Teacher Equity Plan (as part of the State's 
Highly Qualified Teacher Plan) fully reflects the steps the State is 
currently taking to ensure that students from low-income families and 
minority students are not taught at higher rates than other students by 
inexperienced, unqualified, or out-of-field teachers (as required in 
section 1111(b)(8)(C) of the ESEA). With the addition of these 
Indicators, we have renumbered the remaining Indicators and Descriptors 
in this Education Reform Area.
    Comment: A number of commenters expressed concern that, while 
proposed Indicator (a)(1) would require States to provide data on the 
distribution of highly qualified teachers between highest- and lowest-
poverty schools, it would not provide similar data with respect to 
teachers of minority students. These commenters typically recommended 
that an indicator be added in this education reform area requiring 
States to provide data on the distribution of highly qualified teachers 
between highest- and lowest-minority schools; one of these commenters 
further recommended that the Department include in the final 
requirements definitions of ``highest-minority school'' and ``lowest-
minority school.''
    Discussion: As discussed previously, we have revised the indicators 
in this education reform area to include an indicator requiring a State 
to confirm that its Teacher Equity Plan accurately and fully reflects 
the steps the State is

[[Page 58444]]

taking to ensure that students from low-income families and minority 
students are not taught at higher rates than other students by 
inexperienced, unqualified, or out-of-field teachers. These plans 
include data related to whether minority student populations are served 
by highly qualified teachers (in addition to data related to whether 
such teachers serve students from low-income families). We expect that, 
in confirming or providing their current plans, States will provide up-
to-date data on this indicator as well as on the distribution of highly 
qualified teachers between highest- and lowest-minority schools. For 
this reason, we do not believe it is necessary to include the 
additional indicators recommended by the commenters.
    Changes: None.
    Comment: Several commenters asserted that proposed Indicator (a)(1) 
would not furnish data on whether students from low-income families or 
minority students are taught at higher rates than other students by 
out-of-field or inexperienced teachers. These commenters typically 
recommended that indicators be added in this education reform area to 
provide data on the distribution of in-field and experienced teachers 
between highest- and lowest-poverty schools, as well as between 
highest- and lowest-minority schools.
    Discussion: Inasmuch as we have revised the requirements in this 
education reform area, as discussed previously, to include an indicator 
regarding States' Teacher Equity Plans (in which States describe the 
steps being taken to ensure that students from low-income families and 
minority students are not taught at higher rates than other students by 
inexperienced, unqualified, or out-of-field teachers), we do not 
believe it is necessary to include additional indicators that would 
provide data specifically on the distribution of in-field or 
experienced teachers. (We note also that section 9101(23) of the ESEA 
requires that a highly qualified teacher demonstrate subject knowledge 
or competence in the subjects the teacher teaches in addition to 
possessing a State teaching credential; consideration of whether a 
teacher is teaching in or out of field is, thus, incorporated in the 
definition of ``highly qualified teacher'' used in Indicator (a)(1).)
    Changes: None.
    Comment: Several commenters made general statements that the 
definition of ``highly qualified teacher'' is flawed or does not 
identify high-quality teachers, though some acknowledged the ``interim 
utility'' of the term as other, more accurate or more effective 
measures of teacher quality are considered.
    Discussion: While the Department believes that data on highly 
qualified teachers do have value, we recognize that these data are 
limited by their sole focus on teacher qualifications. As reflected in 
the other indicators in this education reform area (discussed in 
further detail later in this notice), the Department believes that 
other measures, such as measures of teacher effectiveness, are needed 
if efforts to identify high-quality teachers are to be successful.
    Changes: None.

Teacher and Principal Effectiveness: General

    Comment: Several commenters expressed support for including in this 
education reform area the proposed metrics relating to teacher and 
principal effectiveness, in particular the indicators on performance 
ratings from teacher and principal performance evaluation systems 
(proposed Indicators (a)(2) through (a)(6)). However, several 
commenters questioned whether the Department had sufficient 
justification for including these metrics. One commenter asserted that 
requiring States to collect and publicly report data and information 
for these metrics is not statutorily relevant, and another asserted 
that the metrics exceed the requirements of the statute. Another 
commenter believed that these indicators, as they concern evaluation 
systems that are typically developed and implemented locally, represent 
an unwarranted intrusion by the Federal Government into local matters. 
Another commenter asserted that the ARRA does not provide the 
Department with the authority to require States to collect and publicly 
report data and information on principals.
    Discussion: We disagree with the commenters that the Department has 
insufficient justification for establishing these requirements. Section 
14005(a) of the ARRA authorizes the Secretary to require States to 
submit an application for funds under this program containing such 
information as the Secretary may reasonably require. In addition to 
requiring States to take actions to address inequities in the 
distribution of highly qualified teachers, the statutory assurance in 
this education reform area (section 14005(d)(2)) requires States to 
``take actions to improve teacher effectiveness'' and, thus, clearly 
provides a basis on which to establish requirements for the collection 
and public reporting of data and information related to teacher 
effectiveness. As stated in the NPR (74 FR 37838), we believe that 
local evaluation systems play a principal role in determining teacher 
effectiveness. Accordingly, we believe that requiring States to collect 
and publicly report data and information on teacher evaluation systems 
is reasonable and justified.
    With respect to principal evaluation systems, as stated in the NPR 
(74 FR 37838), effective school administration is a key factor in 
effective teaching and learning. We likewise believe that local 
evaluation systems play a primary role in determining the effectiveness 
of school principals. Accordingly, we believe that requiring States to 
collect and publicly report data and information on principal 
evaluation systems is also reasonable and justified.
    Changes: None.
    Comment: A few commenters stated that, with the proposed metrics, 
the Department incorrectly or improperly equated the terms ``highly 
qualified teacher'' and ``effective teacher.''
    Discussion: As discussed earlier, the statutory assurance in this 
reform area provides a basis on which to collect data and information 
related both to teacher effectiveness and to teacher qualifications. In 
collecting data and information on both of these items, it is not the 
intention of the Department to conflate the two; on the contrary, the 
intent is precisely to acknowledge a difference in these concepts. 
Historically, in assessing the quality of our nation's teachers, the 
Department has focused, through ``highly qualified teacher'' measures, 
on the qualifications of teachers to the exclusion of other factors. By 
including considerations of teacher effectiveness in the statutory 
assurance, we believe the Congress has now signaled that this focus is 
unnecessarily narrow and that additional measures of teacher quality 
are needed--and, in particular, measures that are associated more 
closely with the outcomes of teaching and learning than with inputs 
such as qualifications. The metrics related to teacher effectiveness 
are accordingly intended to provide new information on teacher quality, 
separate and apart from information currently available on States' 
compliance with the highly qualified teacher requirements of the ESEA.
    Changes: None.
    Comment: One commenter objected to the proposed metrics relating to 
teacher and principal effectiveness on the grounds that, in estimating 
the burden associated with these requirements, the Department stated 
that it does not possess definitive information on the extent to which 
teacher and principal

[[Page 58445]]

evaluations are officially implemented in LEAs.
    Discussion: We disagree with the commenter's assertion that a lack 
of information on whether teacher and principal evaluations are 
officially implemented in LEAs casts doubt on the justification for 
these metrics and believe, moreover, that the metrics will help to fill 
the information gaps that caused the Department's burden estimates to 
be speculative.
    Changes: None.
    Comment: Numerous commenters expressed concerns about the utility 
or purpose of the proposed metrics relating to teacher and principal 
effectiveness. A few commenters asserted that the data and information 
collected and publicly reported for these metrics would not enable 
stakeholders to identify effective teachers or principals or to improve 
student achievement; to this point, many commenters asserted that, due 
to variation in the design and implementation of local evaluation 
systems, the data and information collected and publicly reported for 
these metrics would not be comparable across LEAs (or States), while 
another commenter asserted that local evaluation systems are generally 
of poor quality. In light of concerns about comparability, one 
commenter suggested that the Department provide a model for reporting 
the data and information for these proposed metrics, while another 
commenter recommended that, in lieu of these metrics, the Department 
instead direct States to develop plans for working with their LEAs to 
improve evaluation systems and the distribution of effective teachers 
and principals across LEAs and schools.
    Discussion: While we appreciate the questions raised by these 
commenters regarding the purpose of the data and information that 
States will collect and publicly report under these metrics, we believe 
that the metrics will serve a very important purpose, namely, providing 
new, crucially valuable information on teacher and principal quality. 
As discussed earlier, information available on teacher and principal 
quality has historically been limited, at both the State and Federal 
levels, to information on the qualifications or years of service of 
teachers. By requiring States to comply with these metrics, the 
Department intends that new and more comprehensive information will be 
available for stakeholders and that this availability will, in turn, 
shift the focus of teacher quality debates toward the effectiveness of 
educators.
    Although variations in the design and implementation of evaluation 
systems may mean that the data on teacher and principal effectiveness 
ratings (as required under proposed Indicators (a)(2) through (a)(6)) 
are not comparable across those systems (i.e., in States that do not 
require the implementation of uniform evaluation systems across LEAs), 
such data will nonetheless provide information on teacher and principal 
effectiveness that is informative for stakeholders, most importantly 
parents. Although variations in the quality of those evaluation systems 
may also mean that these ratings data are not reliable in all cases, 
requiring the reporting of these data for all LEAs will nonetheless 
shine a light on the limitations of current evaluation systems where 
they exist and can drive efforts to improve those systems where such 
improvements are needed. Because the methods for evaluating teachers 
vary greatly across States and LEAs, the Department does not believe 
that establishing a national model for reporting these data is 
appropriate.
    Changes: None.
    Comment: Several commenters cautioned that the proposed metrics 
would force standardization upon local evaluation systems (which in 
some cases would be prohibited by State laws providing for local 
control over education) and would reduce opportunities for local 
innovation; related to this point, one commenter requested 
clarification about whether the proposed metrics would effectively 
require that all LEAs in a State employ a single, uniform system for 
evaluating teachers and for evaluating principals and that LEAs 
aggregate and report results from that system.
    Discussion: Although the Department hopes that the metrics in this 
area will help promote the effective design and use of evaluation 
systems generally across LEAs and States, we are not requiring with 
these metrics that States and LEAs implement uniform teacher and 
principal evaluation practices.
    Changes: None.
    Comment: Several commenters asserted that the proposed metrics 
relating to teacher and principal effectiveness would be unduly 
burdensome on States and LEAs, particularly on small States and States 
with many small LEAs. A few of these commenters requested that the 
Department provide States with the flexibility in meeting these 
requirements, such as by collecting the data and information for a 
representative sample rather than for all of the LEAs in the State.
    Discussion: We recognize that the proposed requirements for this 
program place some burden on States and LEAs and have sought to reduce 
that burden significantly, as reflected in the changes to the proposed 
requirements discussed elsewhere in this notice. With respect to these 
indicators, however, we continue to believe that the benefits of 
collecting and reporting the data and information for all LEAs outweigh 
the costs of doing so.
    Further, we do not believe that it would be sufficient to report 
data for only a sample of LEAs. The Department believes that the State 
should make this information publicly available for all LEAs so that 
each LEA can make any necessary reforms.
    Changes: None.
    Comment: A few commenters recommended that the Department review 
data collections currently in the EDFacts system to ascertain whether 
data for the proposed metrics on teacher and principal effectiveness 
are already available or potentially available through modifications to 
other data. Related to this point, one commenter noted that new data 
collection requirements may not be the most immediately effective means 
for measuring a State's compliance with the statutory assurance, given 
the amount of time and effort initially needed to meet the 
requirements.
    Discussion: The Department appreciates these comments and, as 
noted, has sought to use data and information from existing Department 
collections in the metrics for this program to the extent possible. 
However, the Department does not currently collect data related to 
teacher and principal effectiveness from States through the EDFacts 
system or other systems so it is necessary for us to establish a new 
requirement for the collection of those data.
    Changes: None.
    Comment: One commenter requested clarification as to whether the 
collection and reporting of data and information for the proposed 
metrics relating to teacher and principal effectiveness must occur 
regularly or one time only.
    Discussion: Consistent with the final State Plan requirements 
established in this notice, a State must collect and publicly report 
the data and information required for these metrics at least annually 
and must be able to complete its first collection and reporting of the 
data and information as soon as possible but no later than September 
30, 2011. The Department will determine at a later date whether the 
collection and public reporting of these data and information will 
continue after September 30, 2011.
    Changes: None.

[[Page 58446]]

    Comment: A few commenters recommended that the Department or States 
take a more proactive approach toward improving teacher and principal 
evaluation systems and developing effective school personnel than what 
is reflected in the proposed metrics in this area. These commenters' 
recommendations include the following: the Department should promote 
the development of evaluation systems that are specifically designed 
for that purpose, incorporate student achievement and evidence-based 
instructional practices as evaluation criteria, and use a range of 
ratings beyond simple bimodal ratings (e.g., ``meets expectations'' 
versus ``does not meet expectations''); the Department should define 
``teacher effectiveness'' and provide guidance to States and LEAs on 
how to align evaluation systems with that definition; the Department 
should provide guidance to States and LEAs on standards for principal 
evaluation; and States should work toward developing systems for 
licensing teachers based on effectiveness.
    Discussion: We appreciate these recommendations and agree in large 
part that the Department should play a role in supporting the 
development of effective teachers and principals and the systems used 
to evaluate their performance. In fact, the Department has sought and 
continues to seek to promote the implementation by States and LEAs of 
evaluation systems that produce meaningful and actionable information 
on teacher and principal effectiveness through its competitive grant 
programs, including the Teacher Incentive Fund. While we will take 
these recommendations into consideration for those programs and in 
future policymaking (including in the reauthorization of the ESEA), we 
do not believe it would be appropriate to incorporate them formally 
into the requirements for this program.
    Changes: None.
    Comment: Several commenters recommended that the Department include 
additional metrics related to effective teaching and learning, 
including: Indicators about State efforts to improve teacher 
preparation, recruitment, and compensation; indicators about factors 
likely to attract high-quality teachers to struggling schools, such as 
teaching and learning conditions, leadership, safety, autonomy, and 
flexibility; indicators about other factors likely to affect student 
achievement, such as class size, attendance, and student migration; 
indicators relating to specific educational actions and practices in 
schools that lead to dramatic gains in student achievement; indicators 
on the teaching of Advanced Placement, International Baccalaureate, and 
other advanced courses in secondary schools; and an indicator on 
teacher attendance, particularly in high-poverty schools.
    Discussion: Although the Department believes that there is value in 
establishing indicators such as those mentioned by the commenters in 
the requirements for this program, we are mindful of ensuring that we 
minimize to the extent possible the burden on States and LEAs in 
meeting these requirements and, in this instance, do not wish to create 
additional burden in the form of additional requirements.
    Changes: None.

Teacher and Principal Effectiveness: Descriptors (a)(1) and (a)(2)--
Evaluation System Descriptions

    Comment: One commenter requested clarification as to the purpose of 
the proposed requirements to describe the systems used to evaluate the 
performance of teachers and principals in LEAs (Descriptors (a)(1) and 
(a)(2)). The commenter intimated that the proposed descriptors were 
unnecessary and that indicators alone should be sufficient to provide 
information on teacher and principal effectiveness.
    Discussion: As reflected in the NPR and discussed previously in 
this notice, we believe that descriptions of teacher and principal 
evaluation systems will provide stakeholders with much-needed (and, 
often, otherwise unavailable) information on the design and usage of 
these systems in LEAs and States. Moreover, we believe that these 
descriptions will provide necessary context for the data and 
information collected and reported for the indicators on ratings 
received by teachers and principals from these systems (new Indicators 
(a)(3) through (a)(7) (proposed Indicators (a)(2) through (a)(6)); 
without information on the design and usage of evaluation systems, data 
on these ratings may be too open to interpretation by stakeholders and 
may ultimately not be useful.
    Changes: None.
    Comment: Several commenters requested that the Department provide 
more information or greater prescription on the proposed requirements 
to describe the systems used to evaluate the performance of teachers 
and principals in LEAs. Several commenters recommended that the 
Department further specify the information that should be included in 
providing these descriptions, and a few commenters inquired as to 
whether the Department would provide a sample or rubric for the 
descriptions. A few other commenters recommended or intimated that 
States be required to describe specific components or aspects of 
evaluation systems used in LEAs, such as purpose, methodology, 
participants, frequency of implementation, feedback protocols, and 
procedures for review and appeals. In contrast, one commenter 
recommended that States be provided flexibility in the types of 
information or level of detail to be included in these descriptions.
    Discussion: We agree that more information on how States may meet 
the requirements to describe teacher and principal evaluations is 
necessary and will address this issue in guidance for this program. In 
recognition, however, of the limited availability of information on a 
``typical'' evaluation system and the potential for wide variation in 
these systems across LEAs and States, and also of the additional burden 
that may be conferred upon States and LEAs in responding to additional 
requirements, we do not believe it would be appropriate to include 
additional requirements in this area.
    Changes: None.

Teacher and Principal Effectiveness: New Indicators (a)(3) and (a)(6) 
(Proposed Indicators (a)(2) and (a)(5))--Whether Systems Include 
Student Achievement Outcomes as Evaluation Criterion

    Comment: One commenter expressed support for proposed Indicators 
(a)(2) and (a)(5), which ask whether the systems used by LEAs to 
evaluate the performance of teachers and principals include student 
achievement outcomes as an evaluation criterion, and encouraged the 
Department to promote the use of such outcomes in performance 
evaluations. A number of other commenters expressed concern about these 
proposed indicators. These commenters asserted that fair and effective 
teacher and principal evaluation systems include multiple evaluation 
criteria and/or employ comprehensive evaluation frameworks and that, 
through the proposed indicators, the Department was placing undue 
weight or focus on the inclusion of student achievement outcomes to the 
detriment of other factors important to evaluation. One commenter 
asserted that using student achievement outcomes in evaluating teachers 
and principals is inappropriate.
    In light of concerns such as these, a few commenters recommended 
that the Department ask for data or information on specific criteria 
used to evaluate teacher and principal performance other than student 
achievement outcomes,

[[Page 58447]]

such as preparation, planning, teaching practices, leadership skills, 
cultural competence, extracurricular roles and assignments, working 
conditions, and staff turnover rates.
    Discussion: The Department agrees that teacher and principal 
evaluation systems generally should include, in addition to criteria 
relating to student achievement outcomes, other criteria such as those 
noted by the commenters. In providing the descriptions of teacher and 
principal evaluation systems under Descriptors (a)(1) and (a)(2), we 
encourage States to include discussion of those criteria. (As noted 
previously, the Department plans to provide guidance for this program 
that will provide more information to States on describing their 
teacher and principal evaluation systems; among other topics, this 
guidance will address the information a State may want to include in 
these descriptions with respect to evaluation criteria.)
    However, we also believe that student achievement outcomes are a 
central factor in evaluation systems that yield fair and reliable 
assessments of performance (as stated in the NPR (74 FR 37838)). 
Therefore, we believe that requiring States to report on the inclusion 
of student achievement outcomes as a specific criterion in evaluation 
systems is warranted.
    Changes: None.
    Comment: Several commenters recommended that we include indicators 
to address whether teacher and principal evaluation systems incorporate 
opportunities for feedback and professional development and the nature 
or types of those opportunities.
    Discussion: The Department agrees that strong teacher and principal 
evaluation systems will include mechanisms for providing teachers and 
principals with feedback about their performance and for identifying 
professional development and other support needs and opportunities 
based on those results. We encourage States to discuss the inclusion of 
these elements in their descriptions of teacher and principal 
evaluation systems under Descriptors (a)(1) and (a)(2), but are not 
requiring States to collect and report information separately and 
specifically on these elements as part of the requirements for this 
program.
    Changes: None.
    Comment: Several commenters objected to the Department's proposal 
to require the use of student achievement outcomes in teacher and 
principal evaluations on the grounds that to do so exceeds the 
requirements of the statute or is not supported by research.
    Discussion: These commenters appear to misunderstand the 
requirements proposed by the Department. Although (as discussed 
previously) we believe that student achievement outcomes are a central 
factor in effective teacher and principal evaluations, we are not 
requiring, through new Indicators (a)(3) and (a)(6) (proposed 
Indicators (a)(2) and (a)(5)), the use of student achievement outcomes 
as an evaluation criterion; rather, we are requiring merely that States 
indicate whether such outcomes are used in local teacher and principal 
evaluation systems.
    Changes: None.
    Comment: Several commenters asserted that student assessment 
results should not be the sole or central student achievement outcome 
used in teacher and principal evaluations and that multiple other 
outcomes should be considered, such as grades; portfolios; and results 
of written work, group work, presentations, and ``capstone'' projects. 
In contrast, one commenter recommended that the definition of student 
achievement outcomes include only summative and interim assessments, 
and another commenter suggested that, in the evaluation of principals, 
student growth should be the only student achievement outcome 
specified.
    Discussion: We agree with the commenters that student assessment 
results should not be the sole achievement outcome used in evaluating 
teachers and principals. The definition of student achievement outcomes 
applicable to new Indicators (a)(3) and (a)(6) (proposed Indicators 
(a)(2) and (a)(5)) includes, in addition to student assessment results, 
student grades and rates at which students are on track to graduate 
from high school and does not prohibit the consideration of additional 
outcomes in teacher and principal evaluations, provided at least one of 
these outcomes is used. Further, we note that the purpose of the 
definition of student achievement outcomes is, again, not to require 
the use of any specific student achievement outcome in teacher and 
principal evaluations, but rather to specify the types of student 
achievement outcomes that a State would include when responding to the 
indicators. Although (as reflected in the discussions earlier in this 
notice) the Department believes that such outcomes should be included 
in local evaluation systems, a State and its LEAs remain permitted to 
use these or other achievement outcomes or no such outcomes at all.
    Changes: None.
    Comment: A number of commenters expressed concern about the 
specific use of results from academic assessments administered by the 
State for accountability purposes as a student achievement outcome in 
teacher and principal evaluations. One commenter noted that using such 
results to evaluate teachers and principals is prohibited by law in the 
commenter's State. Several other commenters cautioned against using 
State assessment results to evaluate teacher and principal performance 
as such assessments, they believe, are not designed specifically for 
this purpose. In contrast, one commenter recommended that the 
definition of ``student achievement outcomes'' applicable to proposed 
Indicators (a)(2) and (a)(5) include State academic assessments only or 
primarily, so as to prevent inconsistencies in reporting and the 
uncoupling of instruction from State standards.
    Discussion: As discussed previously, new Indicators (a)(3) and 
(a)(6) (proposed Indicators (a)(2) and (a)(5)) do not require the use 
of any specific student achievement outcome (including results from 
student assessments such as the State's assessments) in teacher and 
principal evaluations. If an LEA or State were to use student 
assessment results as an evaluation criterion, it would be free to use 
results from assessments other than the State assessments if it finds 
those assessments to be appropriate or effective (and permissible) in 
the teacher or principal evaluation context.
    Changes: None.
    Comment: One commenter suggested that using student assessment 
results may be problematic in cases where teachers and principals are 
not evaluated on an annual basis.
    Discussion: As stated previously, the Department is not requiring 
the use of student assessment results in teacher and principal 
evaluations as part of the requirements for this program. In general, 
however, the Department does not believe that considerations of the 
frequency of teacher and principal evaluations should negatively affect 
decisions to include results from student assessments in those 
evaluations. In the Department's view, there is nothing to prevent LEAs 
from using student assessment results over multiple years in 
evaluations of teachers and principals if such evaluations occur less 
than annually.
    Changes: None.
    Comment: One commenter requested clarification of the phrase 
``rates at which students are on track to graduate from high school,'' 
which is included among the outcomes identified in the Department's 
definition of student achievement outcomes applicable to

[[Page 58448]]

proposed Indicators (a)(2) and (a)(5). The commenter asserted that this 
phrase is ambiguous as written.
    Discussion: Although we are uncertain of the ambiguity to which the 
commenter is referring, we will further clarify this phrase in guidance 
for this program.
    Changes: None.
    Comment: One commenter requested clarification as to the 
relationship between proposed Indicators (a)(2) and (a)(5) and the 
proposed selection criterion for the Department's Race to the Top Fund 
regarding the extent to which an applying State, in collaboration with 
its LEAs, has a plan to increase the use of student growth as a 
significant factor in the evaluation of teachers and principals.
    Discussion: In the July 29, 2009 notice of proposed priorities, 
requirements, definitions, and selection criteria for the Race to the 
Top Fund, the Department proposed a definition of ``student growth,'' 
which defined that term as the change in achievement data for an 
individual student between two points in time. We agree that, to the 
extent possible, there should be consistency in definitions across 
programs.
    Changes: The Department has revised proposed Indicators (a)(2) and 
(a)(5) so that States will now report on the extent to which systems 
used to evaluate the performance of teachers and principals include 
student achievement outcomes or student growth data as an evaluation 
criterion. These Indicators have been renumbered as Indicators (a)(3) 
and (a)(6) respectively.
    The Department has also added a new definition of student growth, 
which is defined as the change in achievement for an individual student 
between two or more points in time. The definition further provides 
that for grades in which the State administers summative assessments in 
reading/language arts and mathematics, student growth data must be 
based on a student's score on the State's assessment under section 
1111(b)(3) of the ESEA. A State may also include other measures that 
are rigorous and comparable across classrooms.

Teacher and Principal Effectiveness: New Indicators (a)(3) Through 
(a)(7) (Proposed Indicators (a)(2) Through (a)(6))

    Comment: A few commenters expressed support for proposed Indicators 
(a)(2) through (a)(6) pursuant to which States would be required to 
provide data and information on the performance ratings of teachers and 
principals. These commenters further recommended that additional 
information be collected and reported on the teachers and principals 
receiving the lowest ratings from evaluations, including whether those 
teachers and principals continue teaching or remain employed by the 
LEA.
    Discussion: We appreciate the commenters' support for these 
indicators and agree that information such as that suggested by the 
commenters would be valuable to collect. We are mindful here, however, 
of local restrictions on reporting data on the outcomes of teacher and 
principal evaluations in terms of retention or removal, and thus 
believe it would be more appropriate to collect information on policies 
for the use of evaluation results, rather than actual outcomes. In 
addition, we believe that it is important to collect information on the 
use of evaluation results not just with respect to teacher and 
principal retention and removal, but for other employment decisions as 
well, such as development, compensation, and promotion.
    Changes: We are revising Descriptors (a)(1) and (a)(2) to require 
States also to describe the use of results from teacher and principal 
evaluation systems in decisions regarding teacher and principal 
development, compensation, promotion, retention, and removal.
    Comment: A few commenters requested clarification as to how these 
requirements could be met in the case of an LEA whose evaluation system 
does not provide ratings or levels. One of these commenters questioned 
whether reporting would be required for an LEA that uses its evaluation 
system to determine whether teachers or principals meet or do not meet 
expectations but does not otherwise implement a rating scale.
    Discussion: The Department will provide guidance to States on how 
to publicly report indicator data for LEAs whose evaluations systems do 
not produce ratings or levels for teacher or principals. We note here, 
however, that we would consider binary classifications of effectiveness 
(e.g., ``meets expectations'' versus ``does not meet expectations'') as 
effectiveness ratings and that States should include LEAs using such 
classifications when publicly reporting data on these indicators.
    Changes: None.
    Comment: A number of commenters expressed concerns about ensuring 
that teacher and principal privacy is protected in publicly reporting 
data and information for these proposed indicators. In general, these 
commenters asserted that information that is personally identifiable 
must be protected and not made publicly available. In support of this 
assertion, one commenter stated that reporting personally identifiable 
information may violate employment laws, and another stated that 
reporting such information is prohibited by a court ruling in the 
commenter's State. Other commenters asserted or suggested that 
reporting personally identifiable information unfairly affects teachers 
and principals in small and rural LEAs.
    Discussion: We agree that teacher and principal privacy must be 
protected and will provide guidance to States on publicly reporting 
data and information for these indicators in a manner that achieves the 
twin goals of optimized reporting and protection of personally 
identifiable information.
    Changes: None.
    Comment: One commenter requested clarification as to whether and 
how the requirements of the Family Educational Rights and Privacy Act 
(FERPA) apply to the public reporting of data and information for the 
proposed indicators.
    Discussion: The requirements of FERPA apply to the disclosure of 
information from education records of students. They do not address 
disclosure of information in records relating to the employment of 
teachers and principals and, thus, do not apply to the collection and 
public reporting of data and information for new Indicators (a)(3) 
through (a)(7) (proposed Indicators (a)(2) through (a)(6)).
    Changes: None.
    Comment: One commenter noted that teacher evaluations are typically 
performed by principals and claimed that collecting and publicly 
reporting the data and information for proposed Indicators (a)(3) and 
(a)(4) would have the unintended consequence of principals providing 
all teachers with the same rating out of fear of public scrutiny.
    Discussion: We believe that concern over this potential consequence 
is outweighed by the value to stakeholders and other interested parties 
of making the data and information for these indicators publicly 
available. In addition, we question whether this concern is warranted, 
as a public observer would typically expect to see variation in ratings 
according to performance and, accordingly, would be struck by a 
decision to provide all teachers with a uniform rating.
    Changes: None.
    Comment: One commenter requested clarification as to whether the 
collection and public reporting of data for the proposed indicators on 
the ratings of teachers (proposed Indicators (a)(3) and (a)(4)) would 
apply only with respect to teachers who meet the definition of ``highly 
qualified teacher.''

[[Page 58449]]

    Discussion: The collection and public reporting of data for these 
indicators applies with respect to all teachers who receive ratings 
from the evaluation systems, not just to those who are highly 
qualified.
    Changes: None.
    Comment: One commenter requested clarification as to how full-time 
equivalent teachers should be calculated for purposes of reporting data 
on the proposed indicators on the ratings of teachers.
    Discussion: In reporting data for these indicators, teacher ``head 
counts'' should be used rather than full-time equivalent counts. In 
other words, data should be reported for each teacher who receives a 
rating from the evaluation system regardless of the full-time or part-
time status of that teacher.
    Changes: None.
    Comment: Regarding the indicator on whether the number and 
percentage of teachers rated at each performance rating or level are 
available for each school in the LEA in a manner easily accessible and 
a format easily understandable by the public (proposed Indicator 
(a)(4)), one commenter requested clarification on the meaning of ``in a 
manner easily accessible and a format easily understandable by the 
public.'' Specifically, the commenter sought clarification as to 
whether this phrase meant that, to respond affirmatively to this 
indicator, the data for an LEA must be made available in multiple 
languages.
    Discussion: The Department did not intend by the referenced phrase 
to require the reporting of data in multiple languages. To clarify the 
Department's intent, we are revising new Indicator (a)(5) (proposed 
Indicator (a)(4)) to require States to indicate, for each LEA, whether 
teacher performance data are publicly reported for each school in the 
LEA, consistent with the definition of publicly report that we have 
established in this notice. Accordingly, this indicator concerns 
whether such data are made available to anyone with access to an 
Internet connection without having to submit a request to the entity 
that maintains the data and information in order to access that data 
and information.
    Changes: We are revising new Indicator (a)(5) (proposed Indicator 
(a)(4)) to require States to indicate, for each LEA, whether teacher 
performance data are publicly reported for each school in the LEA, 
consistent with the definition of publicly report that we have 
established in this notice.

Education Reform Area (b)--Improving the Collection and Use of Data

Indicator (b)(1)

    General
    Comment: Numerous commenters opposed the proposed requirement that 
States have in place, as soon as possible but no later than September 
30, 2011, a statewide longitudinal data system (SLDS) that contains all 
of the elements described in section 6401(e)(2)(D) of the America 
COMPETES Act (COMPETES Act). They described the deadline as arbitrary 
and unrealistic, and indicated that it would not allow States 
sufficient time to plan, develop, and implement a system that includes 
valid and reliable data.
    The commenters presented various arguments why States would not be 
able to meet this deadline. One commenter indicated that States would 
need more time to build teacher knowledge, support, and trust around 
the implementation of an SLDS. Another commenter emphasized that the 
Department should consider that it takes time to collaborate and build 
trust among the various stakeholders involved with such systems. 
Another argued that States would be unable to meet the deadline because 
Federal law does not currently authorize the sharing of data between K-
12 and postsecondary systems. Finally, several commenters indicated 
that States would not have the financial resources necessary to develop 
and implement an SLDS by the September 30, 2011 deadline.
    Some commenters suggested alternative deadlines for the 
establishment of an SLDS. A few of these commenters argued that the 
Department should establish deadlines on a State-by-State basis, taking 
into consideration a State's current progress in developing such a 
system. Others argued that States that have received an award under the 
Department's SLDS grant program should be permitted to abide by the 
implementation timeline under that program. One commenter recommended 
accelerating the deadline to September 30, 2010 to ensure that States 
comply with the requirement before the September 30, 2011 deadline for 
obligating SFSF funds. One commenter argued that data collected as 
early as 2011 will not reflect the potentially positive impact of SFSF 
funds on student achievement.
    Discussion: The ARRA requires every State receiving SFSF funds to 
implement an SLDS that contains all of the elements specified in 
section 6401(e)(2)(D) of the COMPETES Act. While the ARRA does not 
establish a specific deadline for States to implement such a system, 
the Department believes that the ability of States to collect and 
analyze data is vital to advancing essential education reforms. As a 
result, the Department is encouraging States to implement an SLDS as 
soon as possible and is requiring that they do so no later than 
September 30, 2011. The Department believes that two years is 
sufficient time for each State to implement fully an SLDS, including to 
consult with key stakeholders, regardless of how many of the required 
elements it currently has in place. We do not agree that the timeline 
should be shortened, recognizing that the full development and 
implementation of these systems, in many cases, could not be 
accomplished in less than a year.
    To meet the costs of developing and implementing an SLDS, States 
have available a number of resources. States may use the Government 
Services funds they have received under SFSF and funds awarded under 
the Department's SLDS Grant program. States may also use funds they 
receive under the Race to the Top Fund to develop and implement an 
SLDS.
    Federal law does not prohibit the sharing and use of data between 
K-12 and postsecondary systems, provided that certain Federal 
requirements are met, so there is no reason to extend the deadline on 
that basis. Elsewhere in this section, we provide a fuller discussion 
of issues relating to data sharing and student privacy.
    Changes: None.
    Comment: One commenter suggested that the Department consider using 
the Data Quality Campaign's (DQC) collection efforts on statewide 
longitudinal data systems in order to minimize the State reporting 
burden and consider pre-populating the SFSF reporting tool with the 
information reported to DQC.
    Discussion: The Department appreciates DQC's role in collecting and 
analyzing information on States' efforts in developing statewide 
longitudinal data systems. The information States voluntarily collect 
and provide to the DQC is valuable in measuring States' progress on 
SLDS development and should facilitate States' ability to report the 
requirements in the SFSF. The Department, however, is not using the 
data provided by States through the annual DQC survey for several 
reasons. First, DQC's survey does not fully align with the elements 
specified in the COMPETES Act. Second, we do not believe it is 
appropriate to rely on data collected by a third party to confirm 
States' efforts with respect to the

[[Page 58450]]

development and implementation of an SLDS that includes all of the 
elements specified in the COMPETES Act. Finally, we note that if States 
are collecting and providing this information to the DQC, it should not 
pose much additional burden on States to provide similar information to 
the Department.
    Changes: None.
    Comment: Some commenters urged the Department to focus on both 
governance and implementation of an SLDS to ensure meaningful data may 
be accessed by teachers and administrators to inform decisions and 
instruction. One commenter noted that access and use by teachers and 
administrators are key elements in the development of an SLDS. A few 
commenters requested that the Department provide guidance on how, in 
establishing an SLDS, a State should address such issues as governance, 
professional development, security, identity management, process 
controls, operations, and sustainability.
    Discussion: When developing their plan for developing and 
implementing an SLDS, we encourage States to consider not only the 
technical requirements, but also governance issues, administrative 
needs, and access and use by practitioners. The Department agrees that 
successful management is important in establishing an SLDS that will be 
used effectively. The Department encourages each State to describe in 
its plan how it will address governance and management issues in the 
development and implementation of its SLDS.
    To assist in system design and development, the National Center for 
Education Statistics (NCES) has posted standards and guidelines at the 
following Web site: http://nces.ed.gov/Programs/SLDS/standardsguidelines.asp. The NCES handbooks available at this Web site 
include schemas of the Schools Interoperability Framework Association 
and the Postsecondary Electronic Standards Council, the National 
Education Data Model of the National Forum on Education Statistics, the 
data glossary of NCES' Integrated Postsecondary Education Data System, 
and others. Work is currently underway to create comprehensive 
standards and guidelines for use by States to promote data quality and 
interoperability of data systems both within States and across States. 
The NCES site will be modified, as appropriate, to include up-to-date 
resources.
    Changes: None.
    Comment: A few commenters expressed concern that the notice did not 
address the role of professional development as a key component of 
implementing an SLDS and recommended that the Department require States 
to address the provision of professional development in their plans. 
Commenters also noted that addressing professional development needs in 
order to ensure that an SLDS is used effectively by teachers will 
result in additional financial burden on the States.
    Discussion: The Department agrees that professional development 
plays a key role in ensuring that teachers and administrators are 
prepared to use the SLDS effectively to improve teaching and learning. 
The Department encourages a State to consider the professional 
development needs of educators when preparing its plan for implementing 
its SLDS. We encourage States and LEAs to use all appropriate funding 
sources, including those identified earlier, to support their efforts, 
including efforts to provide professional development.
    Changes: None.
    Comment: One commenter expressed concern that there were not 
adequate incentives for IHEs to provide the data needed for inclusion 
in an SLDS. One commenter stated that LEAs and States should coordinate 
efforts in developing an SLDS so that compatible systems are 
established and so that LEAs do not develop data systems that are 
incompatible with the SLDS.
    Discussion: A high-quality SLDS containing data on students from 
pre-K through postsecondary education should benefit IHEs as well as 
LEAs and elementary and secondary schools. In developing its SLDS, a 
State should consult with IHEs, LEAs, and other appropriate 
stakeholders to ensure that the SLDS meets the needs of these various 
entities. Inasmuch as each State's governor assured in the State's SFSF 
Phase I application that the State would develop an SLDS, the governor 
is in a unique position to bring all of these stakeholders together to 
collaborate on SLDS development and implementation.
    Changes: None.
    Comment: Some commenters suggested that the Department provide 
guidance to States on how they might work together on the development 
of an SLDS, especially with regards to reporting data on students who 
move across State lines or students from the State who attend an out-
of-State IHE or school. A few commenters also requested that the 
Department identify or develop grant opportunities that encourage 
States to work together to create compatible data systems. Another 
commenter suggested that the Department establish a uniform methodology 
and clearinghouse for data-sharing among State agencies.
    Discussion: The Department encourages States to work together and 
share best practices in creating and implementing their SLDSs, in 
particular with respect to the reporting of data for students from the 
State who attend out-of-State IHEs or schools or students who have 
moved across State lines. We note that the Department has proposed, for 
the Race to the Top Fund, to establish an invitational priority for 
States that propose to work together to adapt one State's statewide 
longitudinal data system so that it may be used, in whole or in part, 
by other State(s), rather than having each State build or continue 
building its system independently. The Department will consider issuing 
guidance to States on ways they can collaborate with each other in 
developing these systems.
    The Department does not plan to establish a uniform methodology and 
clearinghouse for data sharing among the States because the 
Department's goal is to assist States in developing individual data 
systems that can provide important data at the State, LEA, and school 
levels.
    Changes: None.
    Comment: One commenter claimed that the Department's proposal 
requires States to align all courses with a common core curriculum. 
This commenter requested that in establishing final requirements for 
the SFSF program, the Department reconsider the date by which States 
must implement an SLDS and allow States time to establish common 
standards and update their SLDS with those standards so as not to 
duplicate effort.
    Discussion: The Department is not requiring that a State align all 
courses with a common core curriculum or that a State use a common set 
of standards in its SLDS. Under the ARRA, States receiving SFSF funds 
must establish and implement an SLDS that includes all 12 elements 
required under the America COMPETES Act, but these elements do not 
include alignment with a common core curriculum. While the Department 
encourages State participation in the development of common 
internationally benchmarked standards and assessments, we believe that 
the implementation of a high-quality SLDS need not wait for those 
activities to be completed.
    Changes: None.

[[Page 58451]]

Compliance With the Family Educational Rights and Privacy Act

    Comment: Some commenters questioned whether establishing and 
implementing an SLDS in the manner proposed in the NPR would violate 
State and Federal law, including FERPA. In this regard, a number of 
commenters noted that some of the Department's past interpretations of 
FERPA may pose a barrier to States' ability to establish an SLDS that 
contains all 12 COMPETES Act elements and still comply with FERPA. One 
commenter requested that any data collection that violated FERPA or 
other Federal law be deleted from the indicators and descriptors.
    Many commenters supported the Department's commitment in the NPR to 
provide guidance regarding statewide longitudinal data systems and 
FERPA. The commenters suggested that the Department provide guidance or 
clarity on such issues as the ability to collect, report, audit, and 
share information between State agencies.
    Discussion: The establishment of a statewide longitudinal data 
system with the necessary functionality to incorporate all 12 of the 
COMPETES Act elements, by itself, does not violate FERPA. The actual 
implementation of such a system (including the disclosure and 
redisclosure of personally identifiable information from education 
records) also does not violate FERPA provided that States follow 
FERPA's specific requirements. In the following sections, in response 
to specific questions from commenters, we provide greater detail about 
how an SLDS may be established and implemented in compliance with 
FERPA. The Department is not aware of any other Federal laws that would 
prohibit or pose barriers to a State establishing an SLDS.
    To the extent that State laws present barriers to the development 
of an SLDS in compliance with the ARRA, the State will likely need to 
take specific actions to address those barriers. As part of its 
application, each State will identify any obstacles, including legal 
barriers, that may prevent it from implementing an SLDS by the 
September 30, 2011 deadline. The Department will provide further 
clarification in this area as warranted.
    Changes: None.
    Comment: Some commenters expressed concerns that the requirement to 
collect and report student data from out-of-State IHEs would violate 
FERPA. A few commenters asked the Department to provide guidance on how 
States can collect data on remedial coursework on students who attend 
out-of-State or private IHEs.
    Discussion: Proposed Indicator (c)(13) would have requested that 
States collect and report college course completion data for students 
who enroll in a public IHE, whether or not the IHE is in-State or out-
of-State. We recognize that collection of data from out-of-State IHEs 
in a FERPA-compliant manner could be burdensome on States and, 
therefore, are revising this Indicator to provide that States need only 
collect and publicly report these data from public IHEs within the 
State. We also encourage States to consult the NCES Web site for 
further assistance in developing statewide longitudinal data systems. 
This Web site can be accessed at http://nces.ed.gov/dataguidelines/.
    Changes: We have modified new Indicator (c)(12) (proposed Indicator 
(c)(13)) to require that States provide college course credit data only 
for students enrolled in public in-State IHEs.
    Comment: One commenter suggested that, because States may collect 
data only for those students who approve the release of their student 
records, the data would not be reliable.
    Discussion: As discussed in more detail later in this section, 
under various exceptions in FERPA, a State may collect and disclose 
student-level data for the purpose of evaluating education programs and 
improving instruction without prior written student or parent consent. 
Moreover, the Department is not asking States to collect data only for 
those students who approve the release of information from their 
student records.
    Changes: None.
    Comment: Several commenters recommended that the Department clarify 
whether States have the authority under FERPA to share data between 
pre-kindergarten-through-grade-12 (pre-K-12) and postsecondary data 
systems, particularly with respect to the requirements in new 
Indicators (c)(11) and (c)(12) (proposed Indicators (c)(12) and 
(c)(13)) that States collect and report student-level college 
enrollment and course completion information. One commenter 
specifically asked whether a State educational agency (SEA) may access 
postsecondary education records of former students without explicit 
student permission.
    Discussion: As stated earlier, the establishment of a statewide 
longitudinal data system with the necessary functionality to 
incorporate all 12 of the COMPETES Act elements, including the sharing 
of data between pre-K-12 and postsecondary data systems, by itself, 
does not violate FERPA. States also may implement an SLDS that includes 
the disclosure and redisclosure of personally identifiable information 
from education records in a manner that complies with FERPA.
    We first address the question of the disclosure and redisclosure of 
personally identifiable information in the pre-K context. The 
disclosure of personally identifiable information from pre-K programs 
to LEAs is not affected by FERPA with respect to pre-K programs that do 
not receive funding from the Department, as FERPA does not apply to 
those programs. With respect to pre-K programs that receive funding 
from the Department, the non-consensual disclosure of personally 
identifiable information from the students' pre-K education records to 
LEAs is permitted under the enrollment exception in the FERPA 
regulations, provided that certain notification and access requirements 
are met (20 U.S.C. 1232g(b)(1)(B); 34 CFR 99.31(a)(2) and 99.34).
    The second issue raised by commenters involves the sharing of 
information between postsecondary institutions and SEAs. Similar to the 
pre-K context, the non-consensual disclosure of personally identifiable 
information from K-12 education records to a postsecondary institution 
is permitted under the enrollment exception, provided the notification 
and access conditions are met. A postsecondary institution may disclose 
personally identifiable information to an SEA under the evaluation 
exception if the SEA has the authority to conduct an audit or 
evaluation of the postsecondary institution's education programs (20 
U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5); 34 CFR 99.31(a)(3) and 
99.35). States that have not established the requisite authority may do 
so in a number of ways, such as (1) creating an entity in the State to 
house the SLDS and endowing that entity with the authority to conduct 
evaluations of elementary, secondary, and postsecondary education 
programs, or (2) granting authority at the SEA or IHE level to conduct 
evaluations of elementary, secondary, and postsecondary education 
programs. States may grant authority through various vehicles, 
including, for example, executive orders, regulations, and legislation. 
In some States, the formation documents for SEAs, IHEs, or other 
educational entities may already grant the necessary authority.
    The Department recognizes that there is considerable variation 
among States' governance structures and laws, and that in some States 
using the evaluation exception to obtain personally identifiable 
information from

[[Page 58452]]

postsecondary institutions may be difficult. The Department is 
currently reviewing its regulations and policies in this area and will 
be in close communication with States over the next several months 
regarding these issues. Of course, the Department also is available, 
upon request, to provide States with technical assistance on how to 
implement an SLDS that meets the requirements of FERPA.
    Changes: None.
    Comment: One commenter encouraged the Department to revisit FERPA 
interpretations related to SLDSs, including on the issue of sharing 
data between SEAs and State workforce agencies.
    Discussion: Under current Department regulations, FERPA prevents 
SEAs and LEAs from non-consensually disclosing personally identifiable 
information from education records to State workforce agencies. 
However, the sharing and reporting of personally identifiable 
information from education records in de-identified form is permissible 
under FERPA (see 34 CFR 99.31(b)). Furthermore, the reporting of 
individually identifiable data by a State agency that does not maintain 
education records is not covered by FERPA inasmuch as FERPA applies 
only to the disclosure of student-level data from education records. In 
other words, because the data maintained by a workforce agency is not 
in an education record, FERPA does not apply and, accordingly, does not 
present a barrier to the disclosure of such data by State workforce 
agencies to educational agencies, to IHEs, or to the State agency that 
maintains the SLDS.
    Changes: None.
    Comment: One commenter requested that the Department clarify its 
position on the National Student Clearinghouse's ability to verify 
college enrollment and course completion data.
    Discussion: To the Department's knowledge, while the National 
Student Clearinghouse does have the capacity to verify student 
enrollment, persistence, and graduation data for the vast majority of 
IHEs, it does not collect course completion data.
    Changes: None.

America COMPETES Act Elements

    Comment: One commenter recommended that we define what it means for 
students to transition successfully from secondary school to 
postsecondary education, which is one of the elements for an SLDS 
described in the America COMPETES Act. Another commenter outlined 
challenges in tracking students after they graduate from high school, 
including difficulty in disaggregating data by subgroups in a manner 
that is statistically accurate due to the fact that most high school 
graduating classes have 100 or fewer students.
    Discussion: The Department does not have a definition of 
``successful transition'' at this time. States and LEAs may use many 
indicators to determine successful transition, which may include the 
ability to transition from secondary school to postsecondary school 
within four to six years, an analysis of trends in student 
demographics, program participation rate, courses taken or passed as 
they relate to participation in remediation programs in postsecondary 
education settings, time needed to graduate, and differences in 
retention and persistence in community colleges versus four-year 
institutions.
    As discussed previously, to assist in SLDS design and development, 
NCES has posted standards and guidelines at the following Web site: 
http://nces.ed.gov/Programs/SLDS/standardsguidelines.asp. The NCES 
handbooks available at this Web site include schemas of the Schools 
Interoperability Framework Association and the Postsecondary Electronic 
Standards Council, the National Education Data Model of the National 
Forum on Education Statistics, the data glossary of NCES' Integrated 
Postsecondary Education Data System, and others. Work is currently 
underway to create comprehensive standards and guidelines for use by 
States in promoting data quality and interoperability of data systems 
both within States and across States. The NCES site will be modified, 
as appropriate, to include up-to-date resources.
    Changes: None.
    Comment: One commenter requested that the Department provide its 
long-term expectations regarding the higher education data elements of 
an SLDS so that States may set up their systems to meet those goals and 
any future requirements. One commenter recommended that the Department 
publish criteria to judge the efficacy of SLDSs.
    Discussion: As noted previously, work is underway to create 
comprehensive standards and guidelines for use by States to promote 
data quality and interoperability of data systems that span early 
childhood through postsecondary education. The NCES site referenced 
previously will be modified, as appropriate, to include up-to-date 
resources.
    Changes: None.
    Comment: Two commenters recommended that the Department clarify 
whether the requirement in the COMPETES Act that the SLDS have the 
capacity to communicate with higher education data systems means data 
integration or two-way communications. Another commenter asked whether 
these data can be merged for program evaluation and policy analysis 
purposes.
    Discussion: The COMPETES Act specifies that an SLDS have the 
capacity to communicate with higher education data systems. Therefore, 
statewide longitudinal data systems should have the ability to link an 
individual student record from one system to another. Additionally, 
these systems should meet interoperability and portability standards, 
which will ensure that the systems provide timely and reliable 
opportunities to share data across different sectors within a State and 
across States. Timely and reliable information from across sectors will 
facilitate the evaluation of which program or combinations of programs 
is improving outcomes for students.
    Changes: None.
    Comment: One commenter expressed concern that the requirement that 
the SLDS communicate with postsecondary education data systems does not 
account for students who choose a postsecondary path other than higher 
education (i.e., military or employment credentials). Another commenter 
recommended that the Department collect data on students who enter the 
workforce or apprenticeship programs, or follow some form of career and 
technical training path after high school.
    Discussion: The Department acknowledges the importance of 
collecting data on students who enter careers or technical training 
upon graduating from high school. However, for the purposes of the SFSF 
program, the Department has chosen to focus its data collection and 
public reporting requirements on college enrollment and course 
completion. The measures included in this notice will allow parents, 
educators, and other key stakeholders to measure the efficacy of 
secondary schools in preparing their graduates for success in college. 
In addition, collecting and publicly reporting data on students 
entering employment or technical training would be extremely complex 
and burdensome on States.
    Changes: None.
    Comment: One commenter recommended that the Department require 
States to include in their SLDS an additional data element on the rate 
of out-of-school suspensions and

[[Page 58453]]

expulsions. The commenter also suggested that the Department make the 
existing data collected by the Department's Office for Civil Rights 
(OCR) publicly available.
    Discussion: We do not believe it is necessary to require States to 
include in their SLDS an additional element on suspension and expulsion 
rates. The ARRA requires only that States implement an SLDS that 
contains the elements described in the America COMPETES Act. We believe 
that requiring States to include this additional element in their 
systems would be unduly burdensome.
    The Department's Civil Rights Data Collection is publicly available 
on the Department's Web site at http://www.ed.gov/about/offices/list/ocr/data.html.
    Changes: None.
    Comment: One commenter urged the Department to clarify whether a 
student identifier must include pre-K students if a State is to meet 
the requirement that an SLDS include a unique statewide identifier that 
does not permit a student to be individually identified by users of the 
system. The commenter also requested that the Department clarify that 
use of such an identifier would only be required where information is 
being disclosed for research and analytical purposes and would not 
apply to providing student data to teachers. One commenter requested 
clarity on whether the definition of ``preschool'' included only 
publicly operated preschools, or also publicly funded preschools and 
non-publicly funded private preschools.
    Discussion: For purposes of developing an SLDS that includes the 
elements described in the America COMPETES Act, a State will need to 
provide students enrolled in Federally and State-supported early 
learning programs with a unique identifier that will follow each 
student through the pre-K-12 system. This requirement applies only to 
Federally and State-supported preschools, not private preschools.
    Changes: None.
    Comment: One commenter suggested that the requirement in the 
COMPETES Act that an SLDS contain student-level information about the 
points at which students exit, transfer in, transfer out, drop out, or 
complete pre-K-16 education programs should be expanded to include 
information on re-enrolled students.
    Discussion: The ARRA specifically requires States receiving SFSF 
funds to develop and implement statewide longitudinal data systems that 
contain the elements identified in the America COMPETES Act. 
Accordingly, the language concerning this element that we included in 
the NPR is taken directly from the America COMPETES Act. The Department 
does not wish to add SLDS requirements that are not in the COMPETES 
Act.
    Changes: None.
    Comment: One commenter recommended that the Department eliminate 
the COMPETES Act requirement that an SLDS include student-level 
transcript information, including information on courses completed and 
grades earned. The commenter said that the commenter's State does not 
have a standard grade scale and, accordingly, the data would be 
meaningless.
    Discussion: The Department does not have the authority to change 
the elements for an SLDS identified in the COMPETES Act.
    Changes: None.

New Indicator (b)(3) (Proposed Indicator (b)(2))

    Comment: A few commenters voiced concerns about the effect that 
implementation of the indicators in education reform area (b) would 
have on teacher privacy. One commenter requested that the Department 
develop guidance on teacher privacy and teacher identifier systems, 
including guidance on preventing unauthorized access to teacher 
information. The commenter recommended that teachers' identities be 
available only to their supervisors. One commenter recommended that the 
Department require States to describe how they will protect teacher 
confidentiality.
    Discussion: The Department agrees that teacher and principal 
privacy must be protected. However, teacher and principal privacy is 
governed by State law. States, LEAs, and schools should consider their 
individual State statutes and policies regarding teacher and principal 
privacy when establishing an SLDS. As discussed in the Education Reform 
Area (a)--Achieving Equity in Teacher Distribution section of this 
notice, the Department will provide guidance to States on how States 
should address teacher and principal privacy issues when publicly 
reporting performance evaluation data in response to the relevant 
indicators in education reform area (a).
    Changes: None.
    Comment: Many commenters requested that the Department clarify the 
meaning of the term ``individual teacher impact'' in new Indicator 
(b)(3) (proposed Indicator (b)(2)). Of these, several expressed 
concerns about the difficulty in producing data that could reliably 
account for the complexity of factors that affect teacher impact. One 
commenter was specifically concerned with the requirement that States 
provide estimates of individual teacher impact by the proposed deadline 
of September 30, 2011; this commenter suggested that States instead be 
required to report longitudinal statistics focusing on teacher-student 
information and develop a timeline and plan for implementing a measure 
of teacher impact on student learning. One commenter did not support 
the use of State assessments to determine teacher impact and 
recommended that the data be used to inform program evaluation and 
professional development.
    Another commenter expressed concerns about using value-added 
measures to compare schools across a State because the overall teacher 
quality in schools varies. In addition, one commenter expressed 
concerns about limitations in using value-added measures in schools 
with a highly mobile student population because class size may be too 
small to make accurate assessments of teacher impact. Another commenter 
cited challenges that States face in developing systems that provide 
estimates of teacher impact because there are only a few providers 
currently available to assist States in the development of these 
systems.
    Many commenters requested that we clarify the meaning of the term 
``student achievement'' in new Indicator (b)(3) (proposed Indicator 
(b)(2)). One commenter suggested that the Department require States to 
indicate whether they provide student performance data to teachers for 
every subject and grade level in which the State administers 
assessments.
    Discussion: The Department acknowledges that few providers are 
currently available to support States in the development of systems 
that provide estimates of teacher impact and that the use of such 
systems is an evolving field. For these and the following reasons, the 
Department is adding new Indicator (b)(2) and changing proposed 
Indicator (b)(2) (new Indicator (b)(3)) to clarify the requirement that 
a State provide estimates of teacher impact.
    The Department agrees with the commenter who suggested that a State 
report longitudinal statistics focusing on teacher-student information. 
Therefore, the Department is adding new Indicator (b)(2) requiring a 
State to indicate whether it provides student growth data on their 
current students and the students they taught in the previous year to, 
at a minimum, teachers of reading/language arts and mathematics in the 
grades in which the State

[[Page 58454]]

administers assessments in those subjects, in a manner that is timely 
and informs instructional programs.
    The Department also acknowledges financial and institutional 
challenges States face in establishing a system through which teachers 
are provided estimates of their individual impact on student 
achievement in a manner that is timely and informs instruction. 
However, the Department believes reports of individual teacher impact 
on student achievement may be a valuable tool to States, LEAs, and 
teachers. Appreciating that this is a goal that States should work 
towards in the future, the Department is revising proposed Indicator 
(b)(2) (new Indicator (b)(3)) to require a State to indicate whether it 
provides teachers of reading/language arts and mathematics in grades in 
which the State administers assessments in those subjects with reports 
of individual teacher impact on student achievement. The Department is 
also revising the State Plan requirements with respect to proposed 
Indicator (b)(2) (new Indicator (b)(3)) to require that, if a State 
does not currently provide reports of teacher impact, it is required to 
submit a plan on how it will do so in the future; we are not requiring, 
however, that a State do so by any specific date.
    The Department is also revising new Indicator (b)(3) (proposed 
Indicator (b)(2)) to clarify that, for the purpose of providing reports 
of teacher impact on student achievement, ``student achievement'' is 
measured in terms of student performance on assessments the State 
administers pursuant to section 1111(b)(3) of the ESEA. Thus, we are 
using this term in new Indicator (b)(3) (proposed Indicator (b)(2)) 
differently than our use of the term student achievement outcomes, 
which is used in the indicators relating to teacher and principal 
performance evaluation systems in education reform area (a).
    The Department will provide guidance on the use of term ``teacher 
impact.''
    Changes: New Indicator (b)(2) requires that each State indicate 
whether it provides student growth data on their current students and 
the students they taught in the previous year to, at a minimum, 
teachers of reading/language arts and mathematics in the grades in 
which the State administers assessments in those subjects, in a manner 
that is timely and informs instructional programs.
    New Indicator (b)(3) (proposed Indicator (b)(2)) has been revised 
to require each State to indicate whether it provides teachers of 
reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects with reports of individual 
teacher impact on student achievement on those assessments. In 
addition, we are revising the State Plan requirements for new Indicator 
(b)(3) (proposed Indicator (b)(2)). For new Indicator (b)(3) (proposed 
Indicator (b)(2)), a State must indicate whether it provides teachers 
of reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects with reports of individual 
teacher impact on student achievement on those assessments. If the 
State does not provide those teachers with such reports, it must submit 
a plan for how it will develop and implement the means to do so.
    Comment: One commenter noted that only 21 States currently report 
the ability to connect student and teacher data. Several individual 
States commented on their own limitations in linking teachers to 
individual students. One commenter noted that although the State can 
provide data linking student performance to teachers, LEAs would have 
to grant teachers access to the data.
    Discussion: The Department acknowledges that some States have 
several of the COMPETES elements in place and other States have only a 
few. However, in the SFSF Phase I application, each State Governor 
committed to establishing, consistent with the requirements of the 
ARRA, an SLDS with all 12 elements described in the America COMPETES 
Act, including a teacher identifier system that enables the State to 
match teachers to students.
    FERPA allows the nonconsensual disclosure of personally 
identifiable information (PII) from student records to school officials 
with a legitimate educational interest in the data. In general, this 
means that individuals in an LEA, including teachers, would need access 
to PII from a student's education records in order to perform their 
professional responsibilities. Schools should have in place criteria 
for appropriate ``school officials'' and ``legitimate educational 
interest'' and should include this information in the annual 
notification to parents of their rights under FERPA. Criteria for 
appropriate ``school officials'' and ``legitimate educational 
interest'' should reflect the need for teachers and school 
administrators to have access to PII from the SLDS to facilitate the 
continuous improvement of education outcomes for students.
    Changes: None.
    Comment: One commenter expressed the concern that States would not 
be able to provide teachers with the results of student assessments in 
time to inform instruction. Another commenter expressed concerns about 
the ability of teachers to use the data to inform instruction if they 
have no prior assessment results to serve as a basis of comparison.
    Discussion: We agree that the student growth data and teacher 
impact reports provided under new Indicator (b)(2) and new Indicator 
(b)(3) (proposed Indicator (b)(2)) are unlikely to lead to timely 
changes in day-to-day instruction. However, the Department believes 
that even if student growth data or teacher impact reports are not 
available to teachers until the end of the school year or the beginning 
of the following school year, they can still be a valuable tool for 
supporting instructional programs. For example, a teacher receiving 
student growth data at the end of the year may adjust instructional 
strategies the following year based on weak assessment results by 
students in the prior year. Concurrently, the teacher in the subsequent 
grade could use the data to identify areas of remediation to address 
with incoming students.
    As a result, the Department is adding new Indicator (b)(2) to 
require a State to indicate whether it provides student growth data on 
their current students and the students they taught in the previous 
year to, at a minimum, teachers of reading/language arts and 
mathematics in the grades in which the State administers assessments in 
those subjects, in a manner that is timely and informs instructional 
programs (rather than instruction). We are also removing the phrase 
``in a manner that is timely and informs instruction'' from new 
Indicator (b)(3) (proposed Indicator (b)(2)).
    Additionally, because States do not administer summative 
assessments in all grades or subjects, the requirements apply, at a 
minimum, to teachers in those tested grades and subjects.
    Changes: New Indicator (b)(2) requires that each State indicate 
whether it provides student growth data on their current students and 
the students they taught in the previous year to, at a minimum, 
teachers of reading/language arts and mathematics in the grades in 
which the State administers assessments in those subjects, in a manner 
that is timely and informs instructional programs.
    New Indicator (b)(3) (proposed Indicator (b)(2)) has been revised 
to require each State to indicate whether it provides teachers of 
reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects with reports of individual 
teacher impact on student achievement on those assessments.

[[Page 58455]]

    Comment: Several commenters expressed support for proposed 
Indicator (b)(2) (new Indicator (b)(3)) but recommended that the 
Department add an indicator on principals' and district administrators' 
ability to collect, manage, and analyze data to improve instruction and 
decision making.
    Discussion: While the Department encourages States to provide 
supports and strategies to district administrators and principals on 
collecting, managing, and analyzing data to improve instruction and 
decision making, the Department believes that adding additional 
indicators and requiring additional information would add unnecessary 
burden for States.
    Changes: None.
    Comment: One commenter recommended that the Department encourage 
States to provide principals with a data ``dashboard'' that includes 
information on student achievement, attendance, and credit completion, 
and other student data that can be linked to individual teachers. 
Several commenters expressed concerns about how States will measure or 
ensure teachers' use of student data, with some commenters recommending 
that the Department include an indicator requiring a State to describe 
how it will provide data to teachers and monitor teachers' use of the 
data.
    Discussion: While the Department encourages States to collect 
information beyond that required through this notice, we believe that 
the current data requirements are sufficient for the purposes of the 
SFSF program and that additional requirements would be unnecessarily 
burdensome on States.
    Changes: None.

Education Reform Area (c)--Standards and Assessments

    General
    Comment: One commenter indicated that, in light of variances in 
State accountability systems, it is difficult to compare student 
achievement levels across States. The commenter noted that comparing 
assessment data across States may give the false impression that 
students in one State are underperforming when the opposite may be 
true.
    Discussion: The Department agrees with this comment and encourages 
States to collaborate in developing common, internationally benchmarked 
standards and assessments. In the meantime, collecting information on 
student college enrollment and persistence rates (new Indicators 
(c)(11) and (c)(12)) (proposed indicators (c)(12) and (c)(13)) will 
provide meaningful data on how schools, districts, and States are 
preparing their students for postsecondary success.
    Changes: None.
    Comment: One commenter requested that the Department define what is 
meant by the term ``high-quality'' as applied to State assessments and 
indicate whether any States meet that standard. The commenter also 
requested that the Department clarify the relationship between 
individual State assessments and internationally benchmarked common 
assessments. The commenter further requested that the Department 
clarify how the requirement to enhance current State assessments is 
affected by efforts to develop common State assessments.
    Discussion: By ``high-quality assessments'' the Department means 
those assessments that have been peer reviewed and approved by the 
Department. While the Department is encouraging the development of 
common State assessments that are aligned with common, internationally 
benchmarked student achievement standards, we believe that it is 
critical for States to continue to ensure that their current 
assessments are of high quality and rigorous.
    Changes: None.

Indicator (c)(1)--Confirmation of Approval Status

    Comment: A few commenters recommended that the Department clarify, 
with respect to Indicator (c)(1), whether a State that does not have a 
fully approved system of standards and assessments and that has entered 
into a compliance agreement with the Department is eligible for SFSF 
Phase II funding.
    Discussion: Under the authority in section 457 of GEPA (20 U.S.C. 
1234f), the Department has entered into compliance agreements with 
certain States with respect to their assessment systems. These 
agreements enable States to remain eligible to receive funding under 
Part A of Title I of the ESEA while coming into full compliance with 
the Title I standards and assessment requirements. A State that is 
operating under such a compliance agreement will not be denied SFSF 
Phase II funding solely due to the existence of such a compliance 
agreement. A State in this situation must still meet the Phase II SFSF 
application requirements to receive funding. The approval status of a 
State's assessment system will not affect its eligibility for SFSF 
funding.
    Changes: None.
    Comment: One commenter recommended that the final notice clarify 
how the commenter's State could confirm the approval status of its 
State assessment system, as determined by the Department, given that it 
has submitted data to the Department on its science assessments and is 
awaiting a decision on those assessments.
    Discussion: Indicator (c)(1) requires each State to confirm the 
approval status, as determined by the Department, of its assessment 
system with respect to reading/language arts, mathematics, and science 
assessments. To comply with this indicator, a State merely confirms the 
approval status of its assessment system (i.e., ``Full Approval,'' 
``Full Approval with Recommendations,'' ``Approval Expected,'' 
``Approval Pending,'' or ``Approval Pending, Compliance Agreement''). 
The fact that a final determination has not been made concerning a 
State's science assessments would not preclude a State from confirming 
its most current approval status.
    Changes: None.

Proposed Indicator (c)(2) and Proposed Descriptor (c)(1)--Enhancing 
Assessments

    Comment: One commenter recommended that the Department remove the 
indicators in education reform area (c) related to current State 
assessment systems in light of the efforts that States are making 
toward creating and implementing common, internationally benchmarked 
standards and assessments. Other commenters supported proposed 
Indicator (c)(2) (and proposed Descriptor (c)(1)), which would require 
a State to indicate whether it is engaged in activities to enhance the 
quality of its academic assessments. These commenters urged the 
Department also to collect additional data about the alignment among 
standards, assessments, professional development, instructional 
materials, accommodations for students with disabilities, and 
accommodations for students with limited English proficiency.
    Discussion: As a condition of receiving SFSF funds, a State 
assures, among other things, that it will enhance the quality of the 
academic assessments it administers pursuant to section 1111(b)(3) of 
the ESEA. The indicators in this education reform area require States 
to be transparent on the current status of their efforts to provide 
rigorous, high-quality standards and assessments. The Department 
acknowledges that many States are working in collaboration or in 
consortia with other States or organizations to improve the quality, 
validity, and reliability of their standards and assessments. In 
recognition of States'

[[Page 58456]]

efforts to develop common standards and assessments, the Department 
does not believe it is necessary to collect additional information on 
the steps that States may be taking to enhance their current State 
assessments. The Department believes that the peer review of State 
assessments provides sufficient information on State efforts to enhance 
those assessments.
    While the Department strongly encourages States to take steps to 
align and publicly report the alignment of their standards, 
assessments, professional development, instructional materials, 
accommodations for students with disabilities, and accommodations for 
students with limited English proficiency, the Department believes that 
the current indicators are sufficient for the purposes of this program.
    Changes: The Department has removed proposed Indicator (c)(2) and 
Descriptor (c)(1). With the removal of this indicator and descriptor, 
we have renumbered the remaining indicators and descriptors in this 
education reform area.

New Indicator (c)(3) (Proposed Indicator (c)(4))--Alternate Assessments 
for Students With Disabilities

    Comment: One commenter recommended adding language on the validity 
and reliability of assessments for students with disabilities to 
proposed Indicator (c)(4), which requires States to confirm whether the 
State's alternate assessments for students with disabilities, if 
approved by the Department, are based on grade-level, modified, or 
alternate academic achievement standards.
    Discussion: Section 1111(b)(3)(A) of the ESEA requires each State 
to implement a set of high-quality student academic assessments. As 
further required in section 1111(b)(3)(C)(iv), such assessments must be 
of adequate technical quality for each purpose required under the ESEA. 
Each State has submitted to the Department for peer review and approval 
its regular and alternate assessments. This peer review includes a 
rigorous evaluation of the validity and reliability of each assessment, 
including all alternate assessments. Thus, if a State's alternate 
assessments for students with disabilities are determined to have met 
the statutory and regulatory requirements through the Department's peer 
review process, those assessments would necessarily be valid and 
reliable assessments. Accordingly, it is not necessary to add language 
to new Indicator (c)(3) (proposed Indicator (c)(4)) on the validity and 
reliability of assessments for students with disabilities.
    Changes: None.

New Indicators (c)(4) and (c)(6) (Proposed Indicators (c)(5) and 
(c)(7))-- Appropriateness and Effectiveness of Accommodations

    Comment: Several commenters recommended that the Department remove 
new Indicators (c)(4) and (c)(6) (proposed Indicators (c)(5) and 
(c)(7)), which ask each State to indicate whether it has completed, 
within the last two years, an analysis of the appropriateness and 
effectiveness of the accommodations it provides, for assessment 
purposes, to students with disabilities and students with limited 
English proficiency, respectively. These commenters noted that this 
analysis was already performed as part of the peer review process.
    Discussion: The Department believes that States should regularly 
analyze the appropriateness and effectiveness of their assessment 
accommodations to ensure that the assessments fully address the needs 
of students with disabilities and limited English proficient students. 
The Department agrees that the peer review process includes a rigorous 
analysis of the appropriateness and effectiveness of assessment 
accommodations. Thus, a State that has submitted its assessment system 
to the Department for peer review within the last two years, or that 
has engaged in an alternative rigorous analysis of its assessment 
accommodations during this timeframe, should be able to respond to 
these indicators affirmatively.
    Changes: None.
    Comment: One commenter expressed concern that proposed Indicators 
(c)(5) and (c)(7) will lead to an expectation that each State complete 
an analysis of the accommodations it provides to students with 
disabilities and students with limited English proficiency for 
assessment purposes.
    Discussion: Section 1111(b)(3)(A) of the ESEA requires each State 
to implement a set of high-quality student academic assessments. This 
requirement includes appropriate and effective accommodations for 
students with disabilities and students with limited English 
proficiency. The Department, therefore, encourages regular review of 
accommodations that are part of State assessment systems.
    Changes: None.
    Comment: A few commenters requested that the Department clarify 
whether the analysis of the appropriateness and effectiveness of the 
accommodations referenced in proposed Indicators (c)(5) and (c)(7) 
could be done by other States or organizations.
    Discussion: For purposes of these indicators, the analysis could be 
done by other States or organizations. It is not necessary for each 
State to have undergone a Departmental peer review of its assessment 
system within the past two years.
    Changes: None.
    Comment: One commenter recommended that the Department publish 
criteria that States would use to review the appropriateness and 
effectiveness of accommodations for students with disabilities.
    Discussion: Section 1111(b)(3)(A)(ix)(II) and (III) of the ESEA 
requires each State to ensure that students with disabilities and 
students with limited English proficiency, respectively, have access to 
appropriate accommodations necessary to measure the academic 
achievement of those students. Element 4.6 in the Department's peer 
review guidance provides the criteria the Department uses to determine 
whether States have complied with these requirements.\6\ States may use 
these criteria to guide any analysis of assessment accommodations that 
are conducted outside the Department's peer review process.
---------------------------------------------------------------------------

    \6\ This guidance is available at http://www.ed.gov/policy/elsec/guid/saaprguidance.pdf.
---------------------------------------------------------------------------

    Changes: None.
    Comment: A few commenters requested that the Department require 
States to describe the accommodations available to students with 
disabilities. One of these commenters recommended that the Department 
require States to submit data on the number and percentage of students 
afforded each accommodation.
    Discussion: In their assessment manuals, States include information 
on the accommodations available to students with disabilities. States 
post these manuals on their Web sites to ensure transparency and 
accountability for all students.
    With regard to reporting the number and percentage of students 
afforded each accommodation, while each student's Individualized 
Education Program lists the accommodations to be provided to that 
student, States are not required by law to aggregate and report the 
number and percentage of students afforded each accommodation. The 
regulations in 34 CFR 300.160(f) require that States report to the 
public, among other things, the following: (1) The number of students 
with disabilities who participate in the general (regular) assessments, 
(2) the number of students

[[Page 58457]]

with disabilities provided accommodations (that did not result in an 
invalid score) to participate in general assessments, and (3) the 
number of students with disabilities who participate in alternate 
assessments based on grade-level, alternate, or modified academic 
achievement standards. We do not believe that further reporting with 
respect to each type of accommodation provided is warranted for the 
purposes of the SFSF program.
    Changes: None.
    Comment: A few commenters requested that States be required to 
describe the accommodations provided to students with limited English 
proficiency for assessment purposes. One of these commenters also 
recommended that States provide data on the number and percentage of 
students afforded each accommodation.
    Discussion: Information on accommodations offered to limited 
English proficient students is already available in State assessment 
manuals, which States make publicly available. Requiring States to 
report on the number and percentage of students with limited English 
proficiency who receive each type of accommodation would impose 
significant additional burden on States and LEAs. The Department does 
not believe that the additional data sought by these commenters are 
warranted for the purposes of the SFSF program.
    Changes: None.
    Comment: One commenter inquired whether the data required under 
proposed Indicator (c)(7) are already provided by States through the 
Department's Education Data Exchange Network (EDEN). Another commenter 
requested that we clarify whether the analysis referenced in this 
indicator should be done at the State level or at the student level.
    Discussion: The data that the Department will be collecting under 
new Indicator (c)(6) (proposed Indicator (c)(7)) are not reported 
through EDEN. Under this indicator, the Department is asking each State 
whether, within the last two years, it has performed a State-level 
analysis of its assessment accommodations for limited English 
proficient students. This analysis is not required at the student 
level.
    Changes: None.

New Indicator (c)(7) (Proposed Indicator (c)(8))--Native Language 
Assessments

    Comments: Several commenters opposed this indicator, stating that 
the Department does not have the authority to require native language 
assessments or that it improperly implies that such assessments are 
required or preferred.
    Discussion: New Indicator (c)(7) (proposed Indicator (c)(8)) merely 
requires a State to confirm whether or not it is administering native 
language versions of State assessments, as approved by the Department, 
for limited English proficient students. The indicator does not suggest 
that the use of native language assessments is the best or only way of 
meeting the needs of limited English proficient students, and it is not 
intended to require States to use such assessments.
    Changes: None.
    Comment: One commenter recommended that the Department add an 
indicator or descriptor that would require States to list languages 
spoken by one percent or more of students in the State for whom 
translations of State assessments are provided or not provided.
    Discussion: Because native language versions of State assessments 
are not required under the ARRA or the ESEA, the Department does not 
agree that this additional information should be collected as part of 
the SFSF Phase II application.
    Changes: None.
    Comments: Several commenters suggested that the Department require 
States to provide additional data demonstrating that the needs of 
limited English proficient students are being met. For example, one 
commenter recommended that proposed Indicator (c)(8) be broadened to 
include other ways of gauging a student's mastery of content and 
English. Another commenter suggested that the indicator be changed to 
require States to provide data on the percentage of limited English 
proficient students using native language versions of State assessments 
and, of this group, the percentage of students who are also receiving 
content instruction in their native language. A third commenter 
recommended that States be required to provide their process for 
classifying students as limited English proficient students. This 
commenter requested that the Department modify the SFSF Phase II 
requirements to require States to identify the types of valid and 
appropriate assessments that are available for these students. This 
commenter also suggested that States be required to describe the 
instructional practices and programs that are approved for teaching 
limited English proficient students.
    Discussion: The Department agrees with these commenters about the 
importance of providing limited English proficient students with 
appropriate and effective instruction and assessment accommodations and 
supports. While the recommended modifications might provide more 
detailed information on the extent to which States are meeting the 
needs of these students, for the purposes of this program, the 
Department believes that new Indicators (c)(6), (c)(7), and (c)(8) 
(proposed Indicators (c)(7), (c)(8), and (c)(9)) will provide 
sufficient data in this area without imposing undue burden.
    Changes: None.

New Indicators (c)(10), (c)(11), and (c)(12) (Proposed Indicators 
(c)(11), (c)(12), and (c)(13))--High School Graduation Rate Data and 
Postsecondary Enrollment and Attainment

    Comments: Numerous commenters urged the Department to expand the 
reporting requirements in proposed Indicators (c)(11), (c)(12), and 
(c)(13) pertaining to high school graduation, college enrollment, and 
course completion to account for high school graduates who choose a 
path other than higher education. Several commenters argued that the 
scope of the proposed data collection is too narrow and suggested, for 
example, that the Department foster the collection of data on career 
readiness in addition to college readiness.
    Discussion: The Department recognizes the value of alternative 
career pathways separate from higher education, and seeks in no way to 
minimize the accomplishments of individuals or States with regard to 
students who pursue successful careers immediately after high school 
through military service, career and technical education programs, or 
full-time employment. However, as discussed earlier, we have a 
particular interest in collecting information on college readiness (as 
an indicator of the strength of States' secondary education standards 
and programs) and have chosen, for the purposes of this program, to 
limit the burden of our reporting requirements accordingly.
    Changes: None.
    Comment: Many commenters stated that collecting the proposed 
student enrollment and course completion data would be very burdensome, 
time-consuming, and costly for States. Some of these commenters 
suggested that the indicators are unlikely to produce meaningful data. 
Others noted that the requirements would negatively affect students by 
taking valuable resources from the classroom.
    Discussion: The Department acknowledges the challenges that the 
postsecondary data collection and

[[Page 58458]]

public reporting requirements present. However, we believe that 
collecting and publicly reporting these data will provide States, LEAs, 
and schools with information they need in order to continuously improve 
elementary and secondary education. The Department recognizes that 
tracking credits earned by students enrolled in private IHEs or in out-
of-State IHEs is particularly challenging. Given that the majority of 
high school graduates enroll in an in-State IHE, and that the majority 
of enrollment in degree-granting institutions is in public 
institutions, the Department believes that at this time States should 
be required to collect course completion data only for students who 
enroll in an in-State public IHE. These data should provide an accurate 
reflection of the strength of States' secondary education standards and 
programs.
    Changes: The Department has revised proposed Indicator (c)(13) (new 
Indicator (c)(12)) to require a State to provide, for the State, for 
each LEA in the State, for each high school in the State and, at each 
of these levels, by student subgroup (consistent with section 
1111(b)(2)(C)(v)(II) of the ESEA), of the students who graduate from 
high school consistent with 34 CFR 200.19(b)(1)(i) who enroll in a 
public IHE (as defined in section 101(a) of the HEA) in the State 
within 16 months of receiving a regular high school diploma, the number 
and percentage (including numerator and denominator) who complete at 
least one year's worth of college credit (applicable to a degree) 
within two years of enrollment in the IHE.
    Comment: In the background to the section of the NPR discussing the 
indicators and descriptors relating to standards and assessment 
requirements, the Department included references to both college 
education and technical training. The background discussion indicated 
that a State would be required to provide data on the extent to which 
students graduate from high school in four years with a regular high 
school diploma and pursue a college education or technical training. 
One commenter noted that none of the proposed indicators specifically 
referenced ``technical training'' and recommended that the Department 
delete the phrase unless the requirements of the program also reflect 
career or technical training.
    Discussion: The Department recognizes the importance of technical 
training and believes it is an important option for many students. 
However, the Department is not requiring States to provide data on 
students who enroll in training programs. The Department believes that 
this additional collection requirement would impose an undue burden on 
States due to the wide range of technical training programs from which 
data would be required. Moreover, the Department believes that the 
college readiness data required under new Indicators (c)(11) and 
(c)(12) (proposed Indicators (c)(12) and (c)(13)) are sufficient to 
provide a sound measure of the strength of secondary education 
standards and programs.
    Changes: The Department has not included references to ``technical 
training'' in the final requirements.
    Comments: One commenter asserted that States will need vendor 
services in order to track student enrollment, persistence, and 
remedial course work and suggested that States would have to rely on 
too few vendors during a short time period to provide the data under 
proposed Indicators (c)(12) and (c)(13).
    Discussion: The Department believes that obtaining data on student 
enrollment and course completion in IHEs for these indicators will 
provide stakeholders with critical information on the effectiveness of 
secondary education across States. The Department believes that States 
will be able to obtain the assistance they may need to meet the 
requirements of new Indicators (c)(11) and (c)(12) (proposed Indicators 
(c)(12) and (c)(13)) through available data sources such as the 
National Student Clearinghouse.
    Changes: None.
    Comment: Some commenters requested that the Department remove 
inconsistencies between the student subgroups identified for reporting 
in the SFSF NPR and the student subgroups identified for reporting in 
the notice of proposed priorities, requirements, definitions, and 
selection criteria for the Race to the Top Fund.
    Discussion: The proposed requirements under the Race to the Top 
Fund included a requirement to disaggregate student data according to 
the subgroups required under the National Assessment of Educational 
Progress (NAEP) for some items and the subgroups required under section 
1111(b)(2)(C)(v)(II) of the ESEA for others. For Phase II of SFSF, we 
proposed that States be required to disaggregate data by the subgroups 
in section 1111(b)(2)(C)(v)(II) of the ESEA.
    The Department is making every effort to unify requirements across 
programs, particularly across ARRA programs, whenever possible. NAEP 
presents data by a number of ``student groups,'' including gender, race 
or ethnicity, highest level of parental education, and type of school 
(public or private). Additional questionnaires also provide information 
on student course-taking, home discussions of school work, and 
television-viewing habits. By statute, the Department requires States 
to disaggregate State assessment data for adequate yearly progress 
(AYP) determinations by economically disadvantaged status, race/
ethnicity, disability, and English language proficiency (section 
1111(b)(2)(C)(v)(II)). State report cards must report assessment data 
disaggregated by gender, race/ethnicity, English language proficiency, 
migrant status, disability status, and economic advantage status, 
unless such disaggregation would reveal personally identifiable student 
information (section 1111(b)(3)(C)(xiii)). Under 34 CFR 
200.19(a)(4)(i), with respect to high school graduation rates, the 
Department requires that data be disaggregated by the subgroups in 
section 1111(b)(2)(C)(v)(II) of the ESEA. Because new Indicator (c)(10) 
(proposed Indicator (c)(11)) addresses graduation rates, the subgroups 
identified in section 1111(b)(2)(C)(v)(II) of the ESEA are the most 
appropriate.
    Changes: None.
    Comment: One commenter stated that the timeline for States to 
report graduation rate data under proposed Indicator (c)(11) using a 
four-year adjusted cohort graduation rate appears to be inconsistent 
with the timeline in the Title I regulations.
    Discussion: New Indicator (c)(10) (proposed Indicator (c)(11)) 
requires States to provide, for the State, for each LEA in the State, 
and for each high school in the State, data disaggregated by student 
subgroup on the number and percentage of students who graduate from 
high school using the four-year adjusted cohort graduation rate as 
required by the Title I regulations in 34 CFR 200.19(b). Under the 
Title I regulations, the four-year adjusted cohort graduation rate must 
be reported at the State, LEA, and high school levels, as well as 
disaggregated by each subgroup described in section 
1111(b)(2)(C)(v)(II) of the ESEA, beginning with report cards providing 
results of assessments administered in the 2010-2011 school year. The 
Department does not believe that the timeline for reporting under new 
Indicator (c)(10) (proposed Indicator (c)(11)) is inconsistent with the 
Title I regulations because those regulations do not specify a date by 
which the four-year adjusted cohort graduation rate for school year 
2010-2011 must be reported. We believe that States should have the 
capacity to publicly report these data by September 30, 2011, as 
required in this notice.
    Changes: None.

[[Page 58459]]

    Comment: Numerous commenters questioned why the Department is 
collecting data only on the basis of a four-year adjusted cohort 
graduation rate and requested that the Department amend proposed 
Indicator (c)(11) to take into consideration extended-year adjusted 
cohort graduation rates. Several of the commenters indicated that use 
of the adjusted four-year cohort graduation rate fails to take into 
account legitimate reasons a student might take more than four years to 
graduate. One commenter suggested adding a new indicator that collects 
at the State, LEA, and high school levels, as well as disaggregated by 
subgroups, data on the number and percentage of students who graduate 
from high school using an extended-year adjusted cohort graduation rate 
as approved by the Department.
    Discussion: The reporting of data using a four-year adjusted cohort 
graduation rate, which States must uniformly implement as required in 
the Title I regulations, helps ensure that there is an accurate method 
of comparing graduation rate data across States. Without such 
comparability, it is difficult to measure adequately how well schools, 
LEAs, and States are doing in addressing the educational needs of high 
school students. Thus, for the purposes of this program, the Department 
is requiring the collection and public reporting of graduation rate 
data only using the four-year adjusted cohort graduation rate.
    Changes: None.
    Comment: One commenter suggested that, in directing States to 
submit graduation rate data under proposed Indicator (c)(11), the 
Department establish an ``n size'' (minimum subgroup size) for 
reporting so that student data are not personally identifiable.
    Discussion: When presenting disaggregated data, States, LEAs, and 
schools are responsible for ensuring that they do not reveal personally 
identifiable information about individual students. As part of its 
approved Consolidated State Application Accountability Workbook 
(Accountability Workbook) under Title I, each State has identified a 
minimum number of students for reporting purposes. These established 
minimum subgroup sizes are to be used in reporting the graduation rate 
data under new Indicator (c)(10) (proposed Indicator (c)(11)).
    Changes: None.
    Comment: One commenter recommended that the Department consider 
whether there are ways to better align college admissions requirements 
with student performance expectations. The commenter asserted that such 
alignment could more accurately assess the extent to which 
postsecondary students require remediation. The commenter argued that 
the extent to which college students require remediation is largely 
within the control of IHEs because IHEs establish admissions 
requirements. Further, this commenter contended that those IHEs with no 
or low admissions requirements will likely have to provide more 
remediation.
    Discussion: The Department acknowledges that IHEs, in some 
respects, may have control over the extent to which their students 
require remediation. The Department encourages States to involve IHEs 
in the process of aligning pre-K-12 standards, curricula, and 
assessments so that students are better prepared for college.
    Changes: None.
    Comment: A few commenters encouraged the use of college entrance 
exams (such as SATs and ACTs) or NAEP data to demonstrate whether high 
school standards and assessments are appropriately aligned to 
facilitate college and career readiness. One commenter requested that 
the Department gather information on whether graduation requirements 
align with evidence of college and work readiness. This commenter 
requested that the Department also require States to report, and 
disaggregate by subgroups, the number and percentage of students who 
earn two-year and four-year degrees at IHEs in three and six years, 
respectively.
    Discussion: While we recognize the value of college entrance test 
data, the Department believes that new Indicators (c)(11) and (c)(12) 
(proposed Indicators (c)(12) and (c)(13)) will provide data that 
accurately and sufficiently reflect the strength of secondary education 
standards and programs. In addition, not all IHEs require entrance 
exams as a prerequisite for admission. With respect to using NAEP data 
to validate State assessments, the Department affirms the utility of 
comparing NAEP scores but notes that the NAEP is not administered 
annually to high school students. In addition, we recognize that data 
on the number and percentage of students who earn two-year and four-
year degrees within three and six years, respectively, would be a 
reliable measure of the strength of secondary education. However, the 
Department seeks to minimize the burden on States and believes that the 
postsecondary enrollment and course-completion indicators in new 
Indicators (c)(11) and (c)(12) (proposed Indicators (c)(12) and 
(c)(13)) will address the underlying issue the commenters raised--
namely, how well high schools are preparing students for college.
    Changes: None.
    Comments: Numerous commenters opposed proposed Indicator (c)(12), 
regarding the number of students who graduate from high school and 
enroll in an IHE, claiming that the data collection would be too 
costly, unreliable, or impractical to conduct at this time. One 
commenter had specific concerns about the costs of obtaining enrollment 
data on students who attend private or out-of-State IHEs.
    Discussion: College enrollment data will help measure the extent to 
which secondary schools have prepared their students for colleges and 
universities. While difficult to quantify, the benefits associated with 
collecting these data should outweigh the costs.
    Changes: None.
    Comment: One commenter requested that the Department clarify which 
entity in the State (elementary or secondary school or IHE) will be 
responsible for reporting on proposed Indicators (c)(12) and (c)(13).
    Discussion: States are responsible for collecting and publicly 
reporting these data and should implement the collection of these data 
in the manner that is most effective for each State.
    Changes: None.
    Comment: None.
    Discussion: In light of the number of recent high school graduates 
who engage in experiential learning or other activities during the year 
immediately following their high school graduation, the Department 
believes it is important to collect data on students who enroll in an 
IHE even if they do not do so immediately after receiving a regular 
high school diploma. Collecting data on students who enroll in an IHE 
within sixteen months of obtaining a regular high school diploma will 
more accurately reflect the effectiveness of secondary education.
    Changes: The Department has revised new Indicator (c)(11) (proposed 
Indicator (c)(12)) to require a State to provide, for the State, for 
each LEA in the State, for each high school in the State and, at each 
of these levels, by student subgroup (consistent with section 
1111(b)(2)(C)(v)(II) of the ESEA), of the students who graduate from 
high school consistent with 34 CFR 200.19(b)(1)(i), the number and 
percentage who enroll in an IHE (as defined in section 101(a) of the 
HEA) within 16 months of receiving a regular high school diploma.
    Comment: One commenter requested that, in order to measure 
students'

[[Page 58460]]

academic readiness for postsecondary-level work, the Department require 
States to collect both aggregated and disaggregated information on 
students who are placed in one or more remedial courses during their 
first year of enrollment in an IHE.
    Discussion: The Department included new Indicator (c)(12) (proposed 
Indicator (c)(13)) in order to provide a measure of students' college 
readiness. Remedial courses generally do not result in credit toward a 
degree, the type of credit measured by this indicator.
    Changes: None.
    Comment: A few commenters requested that the Department define the 
term ``one-year's worth of college credit'' in proposed Indicator 
(c)(13).
    Discussion: There is considerable variation among IHEs about what 
it means to complete at least one year's worth of college credit. As a 
result, it would not be feasible to establish a uniform definition of 
this term at this time. The Department believes that permitting each 
public IHE to define this term in a manner consistent with its own 
academic requirements will not only minimize the reporting burden on 
the IHEs and States, but will result in meaningful data on student 
progress toward a college degree.
    Changes: None.
    Comment: Several commenters suggested that proposed Indicators 
(c)(12) on college enrollment and (c)(13) on course completion raise 
potential FERPA issues and requested that the Department provide 
guidance around creating a FERPA-compliant pre-K-16 data system. The 
commenters sought additional guidance regarding the authority to share 
data between pre-K-12 and postsecondary data systems, especially where 
the systems are administered by separate State agencies.
    One commenter specifically suggested that the Department provide 
States with flexibility to set data aggregation and masking standards 
to avoid reporting of small data cells that could identify an 
individual student. The commenter suggested that the Department 
consider collecting data aggregated at a higher level.
    Discussion: As stated earlier in response to the comments on 
implementing an SLDS that is compliant with FERPA, establishment of a 
statewide longitudinal data system with the necessary functionality to 
incorporate all 12 of the COMPETES Act elements, including the sharing 
of data between pre-K-12 and postsecondary data systems does not by 
itself violate FERPA. States also may implement an SLDS that includes 
the disclosure and redisclosure of personally identifiable information 
from education records in a manner that complies with FERPA. The non-
consensual disclosure of personally identifiable information from K-12 
education records to a postsecondary institution is permitted under the 
enrollment exception, provided the notification and access conditions 
are met. Postsecondary institutions may disclose personally 
identifiable information to an SEA under the evaluation exception if 
the SEA has the authority to conduct an audit or evaluation of the 
postsecondary institution's education programs. (20 U.S.C. 
1232g(b)(1)(C), (b)(3), and (b)(5); 34 CFR 99.31(a)(3) and 99.35).
    The Department is not requiring States to report student data that 
would reveal personally identifiable information. In reporting data 
under new Indicators (c)(11) and (c)(12) (proposed Indicators (c)(12) 
and (c)(13)), States should use the minimum subgroup sizes that are 
part of their approved Accountability Workbooks under Title I.
    Changes: None.
    Comment: One commenter recommended that the Department strengthen 
the metrics regarding standards and assessments by adding an indicator 
on the number and percentage of students in each grade who are enrolled 
in and successfully complete a college- or career-ready high school 
curriculum (aligned with college- and career-ready standards), 
disaggregated by subgroup and reported at the State, district, and 
school levels.
    Discussion: The Department recognizes the value of this information 
but believes that the indicators on the adjusted four-year cohort 
graduation rate, college enrollment, and college course completion are 
sufficient to obtain data on elementary/secondary education and on 
postsecondary outcomes. Given these other indicators, the Department 
does not believe that the additional burden that would result from the 
suggested indicator is warranted.
    Changes: None.
    Comment: Several commenters requested that the Department require 
States to collect and report data on the percentage of students who 
earn college credit during their first year of college. These 
commenters indicated that such data more accurately predict degree 
completion.
    Discussion: The Department's requirement that States collect data 
on the number and percentage of high school graduates who complete at 
least one year's worth of college credit within two years of enrollment 
in the IHE will capture data on students who earn college credit during 
their first year of college. The Department acknowledges the value of 
data on college credit earned during their first year of college but 
recognizes that students may attend college part-time and prefers to 
establish a requirement that more flexibly accounts for a broader 
spectrum of situations.
    Changes: None.
    Comment: None.
    Discussion: New Indicator (c)(11) (proposed Indicator (c)(12)) 
requires States to report, for the State, and for each LEA and high 
school in the State, disaggregated data on the number and percentage of 
high school graduates who enroll in an IHE within 16 months of 
receiving a regular high school diploma. New Indicator (c)(12) 
(proposed Indicator (c)(13)) requires States to report, for the State, 
and for each LEA and high school in the State, disaggregated data on 
the number and percentage of those graduates who complete at least one 
year's worth of college credit within two years of enrollment at a 
public IHE in the State. States are required to identify graduates 
using a four-year adjusted cohort graduation rate. The Department 
recognizes that many States will be unable to report on postsecondary 
enrollment and attainment of high school graduates consistent with the 
four-year adjusted cohort rate by September 30, 2011. Therefore, the 
Department has modified the plan requirements for new Indicators 
(c)(11) and (c)(12).
    Changes: The Department has modified the plan requirements for new 
Indicators (c)(11) and (c)(12). These requirements now provide that the 
State is required to, at a minimum, possess the ability to collect and 
publicly report the data. As a result, the requirements of paragraph 
(a) of the Plan Requirements section of this notice apply to these 
indicators, at a minimum, with respect to the State's development of 
the means to collect and to publicly report the data. Accordingly--
    (1) If, for either of these indicators, a State will develop but 
not implement the means to collect and publicly report the data (i.e., 
the State will not collect and publicly report the data) by September 
30, 2011, the State--
    (i) May submit a plan with respect to the indicator that addresses 
the requirements of paragraph (a) only with respect to the State's 
development of the means to collect and to publicly report the data, 
and not the State's implementation of those means; and
    (ii) If submitting a plan in this manner, must include in its plan 
a description of the evidence it will

[[Page 58461]]

provide to the Department of Education, by September 30, 2011, to 
demonstrate that it has developed the means to collect and publicly 
report that data.
    (2) If, however, for either of these indicators, a State will 
develop and implement those means (i.e., the State will collect and 
publicly report the data) by September 30, 2011, the State must submit 
a plan with respect to the indicator that fully addresses the 
requirements of paragraph (a).

Education Reform Area (d)--Supporting Struggling Schools

Introduction

    A central purpose of ARRA funds is to increase the academic 
achievement of students in struggling schools. As a result, the NPRs 
regarding the State Fiscal Stabilization Fund, the Race to the Top 
Fund, and the School Improvement Grants each included requirements 
related to struggling schools. The most explicit requirements were 
included in the SIG NPR that was published in the Federal Register on 
August 26, 2009 (74 FR 43101), in which the Department proposed four 
rigorous school intervention models--turnaround, restart, school 
closure, and transformation--that an LEA seeking SIG funds would 
implement in the lowest-achieving Title I schools in improvement, 
corrective action, or restructuring identified by each State and could 
also implement in secondary schools that are eligible for, but do not 
receive, Title I funds. Commenters on each notice recommended that the 
Department make the identity of, and requirements for, struggling 
schools consistent among all three programs. We agree with these 
comments and, in response, have revised the four school intervention 
models and are integrating them into the criteria, definitions, and 
requirements for all three programs. In addition, we have developed a 
definition of persistently lowest-achieving schools to substitute for 
``schools in the lowest-achieving five percent'' (SFSF) and 
persistently lowest-performing schools (Race to the Top) for use in all 
three programs.
    Because both the SFSF and Race to the Top notices of final 
requirements are being published prior to the final SIG notice, we are 
publishing, in final, the requirements for the four models in SFSF, 
will append them to Race to the Top, and will incorporate them into the 
final SIG notice when it is issued. In order to clarify and fully 
explain the definition of persistently lowest-achieving schools and the 
changes that we made to the four models, we are including in this 
notice the comments and responses related to the definition and those 
models from the SIG NPR. In the following sections, we first discuss 
the comments we received on struggling schools in response to the SFSF 
NPR and our responses. We then discuss the comments we received related 
to the definition and the four intervention models as proposed in the 
SIG NPR and our responses to those comments.

Persistently Lowest-Achieving Schools

    Comment: Some commenters expressed support for our proposal in 
education reform area (d) that States identify and support schools that 
are not meeting student achievement goals, but a number of commenters 
expressed concern that the proposed indicators in this reform area 
would not result in the correct identification of those schools. Many 
commenters were specifically concerned that high schools might not be 
identified among the lowest-achieving schools. One commenter argued 
that the strategies for turning around struggling high schools may 
differ from strategies for turning around other schools and that the 
data for the proposed indicators for education reform area (d) should 
be disaggregated by school type and grade span so that high schools are 
reported separately. Several commenters recommended broadening the 
definition of lowest-achieving five percent to include both Title I and 
non-Title I secondary schools with reasonably high scores on 
assessments but low graduation rates in an effort to better identify 
struggling schools. One commenter recommended that high schools with 
graduation rates below 60 percent be added to proposed indicators 
(d)(3) through (d)(5) to better identify low-achieving high schools.
    Discussion: The Department agrees that it is important to identify 
the lowest-achieving schools in each State so that parents, policy-
makers, and other stakeholders can take appropriate action and measure 
the progress made in improving the achievement of students who attend 
those schools. We also agree that strategies and approaches to reform 
schools may vary according to school type and grade span. The 
Department agrees that the proposed definition of lowest-achieving five 
percent of schools might fail to identify some struggling secondary 
schools, including those whose students are performing adequately on 
State assessments but are failing to graduate.
    Changes: The Department has removed the definition of lowest-
achieving five percent and added a new definition for the term 
persistently lowest-achieving schools. This term is defined as follows:
    With respect to the requirements that a State collect and publicly 
report data and information on the persistently lowest-achieving 
schools that are Title I schools in improvement, corrective action, or 
restructuring or secondary schools that are eligible for, but do not 
receive, Title I funds, persistently lowest-achieving schools means, as 
determined by the State--
    (a)(1) Any Title I school in improvement, corrective action, or 
restructuring that--
    (i) Is among the lowest-achieving five percent of Title I schools 
in improvement, corrective action, or restructuring or the lowest-
achieving five Title I schools in improvement, corrective action, or 
restructuring in the State, whichever number of schools is greater; or
    (ii) Is a high school that has had a graduation rate as defined in 
34 CFR 200.19(b) that is less than 60 percent over a number of years; 
and
    (2) Any secondary school that is eligible for, but does not 
receive, Title I funds that--
    (i) Is among the lowest-achieving five percent of secondary schools 
or the lowest-achieving five secondary schools in the State that are 
eligible for, but do not receive, Title I funds, whichever number of 
schools is greater; or
    (ii) Is a high school that has had a graduation rate as defined in 
34 CFR 200.19(b) that is less than 60 percent over a number of years.
    (b) To identify the lowest-achieving schools, a State must take 
into account both--
    (i) The academic achievement of the ``all students'' group in a 
school in terms of proficiency on the State's approved assessments 
under section 1111(b)(3) of the ESEA in reading/language arts and 
mathematics combined; and
    (ii) The school's lack of progress on those assessments over a 
number of years in the ``all students'' group.
    We have added a new Descriptor (d)(1), which requires States to 
provide their definition of persistently lowest-achieving schools 
(consistent with the requirements for defining this term set forth in 
this notice) that the State uses to identify such schools.
    We also have made two additional changes to education reform area 
(d) that require States to report on reform efforts in secondary 
schools. We have revised Indicator (d)(5) to require States to provide, 
for the State, the number and identity of the schools that are 
secondary schools that are eligible for, but do not receive, Title I 
funds that are identified as persistently lowest-achieving schools. We 
have added new

[[Page 58462]]

Indicator (d)(6), which requires States to provide, for the State, of 
the persistently lowest-achieving schools that are secondary schools 
that are eligible for, but do not receive, Title I funds, the number 
and identity of those schools that have been turned around, restarted, 
closed, or transformed in the last year.
    Comment: With respect to Indicator (d)(3), one commenter questioned 
the value of requiring States to collect data on schools in improvement 
status in addition to schools identified for corrective action and 
restructuring. The commenter further questioned whether the additional 
collection of information is necessary to focus on the lowest-achieving 
five percent.
    Discussion: In order to remain consistent with school reform 
strategies that States are implementing using funds available under 
section 1003(g) of the ESEA (School Improvement Grants), the Department 
chose to collect data on schools in improvement status. It is important 
to capture information regarding all schools that are persistently 
lowest-achieving schools in the State, including those in improvement.
    Because the Department believes that States should place a priority 
on reforming the persistently lowest-achieving schools, we are 
requiring States to collect and publicly report information only on the 
intervention strategies in those schools and not on every school in 
improvement, corrective action, or restructuring.
    Changes: Indicator (d)(3) has been revised to require States to 
provide, for the State, the number and identity of Title I schools in 
improvement, corrective action, or restructuring that are identified as 
persistently lowest-achieving schools. Indicator (d)(4) has been 
revised to require the State to provide, for the State, of the 
persistently lowest-achieving Title I schools in improvement, 
corrective action, or restructuring, the number and identity of those 
schools that have been turned around, restarted, closed, or transformed 
(as defined in this notice) in the last year.
    Comment: One commenter questioned the usefulness of the 
stratification in proposed Indicators (d)(3), (d)(4), and (d)(5) and 
recommended creating a new indicator that provides the identity and 
grade levels of the schools identified for improvement, corrective 
action, or restructuring and the lowest-achieving five percent of 
schools in the State.
    Discussion: The Department agrees that identifying schools and 
providing greater disaggregation of data required on the persistently 
lowest-achieving schools provides greater transparency and more 
information that is useful to parents, educators, and other 
stakeholders.
    Changes: As noted in the previous responses, a new definition of 
persistently lowest-achieving schools has been added and Indicators 
(d)(3), (d)(4), and (d)(5) have been revised to require States to 
provide the number and identity of the schools being reported under 
these indicators. We also have removed the requirement that States 
report the percentages for these schools.
    Comment: One commenter requested that the Department provide States 
with the flexibility to determine which schools are struggling.
    Discussion: We believe that the definition of persistently lowest-
achieving schools that we have established in this notice provides 
States with flexibility in identifying these schools while setting 
forth basic parameters for States to follow in developing their 
definitions. The SFSF definition and requirements for persistently 
lowest-achieving schools and school intervention models will now be 
consistent with those in the Race to the Top notice and the upcoming 
School Improvement Grants notice; this consistency may encourage and 
enable States to use diverse funding sources to accomplish consistent 
goals. We encourage States to think comprehensively across these 
programs in order to develop plans that best target and meet the needs 
of their persistently lowest-achieving schools.
    Changes: None.
    Comment: One commenter expressed concern that State-by-State 
comparisons will not identify the lowest-achieving schools in the 
Nation.
    Discussion: The purpose of the data collection and public reporting 
requirements in education reform area (d) is not to provide a list of 
the lowest-achieving schools in the Nation. Rather, the Department 
intends that the required data collection and public reporting will 
provide transparency on the persistently lowest-achieving schools in 
each State. This will allow parents, students, and educators in each 
State to make informed decisions and implement reform strategies that 
will work best for their individual situations.
    Changes: None.

The Four Intervention Models

    Comment: Some commenters objected to our proposed definitions of 
the intervention models (turnaround, school closure, consolidation) 
used in Indicators (d)(3), (d)(4), and (d)(5). These commenters argued 
that the definitions are overly restrictive and lack a sufficient 
research base. Also, several commenters expressed a belief that the 
definition for a school that has been turned around is too restrictive. 
Many of these commenters recommended that States be given a broader 
range of options for choosing intervention models and that the data 
collection requirements be expanded to require States to report on 
other models that have been used to assist struggling schools.
    Discussion: The Department recognizes that there are reform models 
and other intervention efforts not identified in the NPR that can be 
successful in turning around struggling schools. We also understand 
that no single reform model will be effective in every State or every 
LEA. However, the intervention strategies proposed in the NPR focus on 
dramatic change, including significant changes in leadership, staffing, 
and governance, and as they are targeted to the Nation's persistently 
lowest-achieving schools, which in most cases have not responded to 
multiple earlier school improvement and turnaround efforts. Research 
indicates that fundamental, comprehensive changes in leadership, 
staffing, and governance hold the greatest promise for bringing about 
the improvements in school structure, climate, and culture that are 
required to break the cycle of chronic educational failure. We believe 
that the reform models proposed in the NPR hold great promise in their 
ability to turn around the Nation's persistently lowest-achieving 
schools and that they are flexible enough to allow States and LEAs to 
adapt them to meet their specific needs. As noted earlier, to be 
consistent with the definitions and requirements in the School 
Improvement Grants notice and to encourage and enable States to plan 
effectively across these programs, these indicators, descriptors and 
definitions, where appropriate, have been revised. Specifically, we 
have added a fourth model, the transformation model, and revised and 
clarified requirements in the turnaround, restart, and school closure 
models.
    At this time, the Department declines to require States to collect 
data on other reform models as we believe that these hold the most 
potential for turning around struggling schools.
    Changes: We have revised the definitions of the intervention models 
as detailed in the Final Definitions section of this notice.
    We have revised Indicator (d)(4), which requires States to provide, 
for the State, of the persistently lowest-achieving schools that are 
Title I schools

[[Page 58463]]

in improvement, corrective action, or restructuring, the number and 
identify of those schools that have been turned around, restarted, 
closed, or transformed in the last year.
    We have added new Indicator (d)(6), which requires States to 
provide, for the State, of the persistently lowest-achieving schools 
that are secondary schools that are eligible for, but do not receive, 
Title I funds, the number and identity of those schools that have been 
turned around, restarted, closed, or transformed in the last year. With 
the addition of new Indicator (d)(6) and the addition of several new 
indicators regarding charter schools, we have renumbered the indicators 
in this education reform area.
    Comment: A few commenters stated that the proposed models for 
intervening in struggling schools are process or structural reforms 
rather than results-based approaches focusing on gains in student 
achievement. They believe that the collection of data will provide 
information only on where reform efforts have occurred, not on the 
success of those efforts.
    Discussion: The Department believes that if the four reform models 
established in this notice are implemented effectively, they will lead 
to gains in student achievement. In addition, via EDFacts the 
Department collects data on Title I schools in improvement, corrective 
action, or restructuring and on whether those schools have improved 
student achievement outcomes to a point that they are no longer 
classified in those categories. The Department does not, therefore, 
believe it is necessary to collect such data through these 
requirements.
    Changes: None.
    Comment: A few commenters recommended that the Department add an 
indicator that would require States to report the number of Title I 
schools in restructuring in the last five years for each LEA and, for 
these schools, also report the number that have been turned around with 
new leadership and a majority of new staff, the number that have been 
turned around through conversion to charter schools, and the number 
that have been closed and the students placed in higher-performing 
schools.
    Discussion: The Department currently collects, through its EDFacts 
data system, information on the number and identity of Title I schools 
in improvement, corrective action, or restructuring in each State. 
Through the SFSF Phase II application, States will report publicly on 
the types of reforms implemented in persistently lowest-achieving 
schools, which are the schools most in need of the types of 
interventions included in this notice and the schools on which States 
and LEAs should be focusing their reform efforts. Accordingly, we do 
not think it is necessary to establish the additional reporting 
requirements suggested by the commenters.
    Changes: None.
    Comment: One commenter recommended that States report the name and 
number of all schools eligible for and receiving Title I funds by grade 
span.
    Discussion: The Department currently makes public information 
regarding the name and number of Title I-eligible schools by grade span 
in the Common Core of Data (CCD). We believe that the data available in 
the CCD, combined with the information that States will report under 
this notice, is sufficient to enable parents, educators, and other 
stakeholders to judge State and local reform efforts.
    Changes: None.
    Comment: One commenter argued that closing schools in some rural 
areas is not an option due to an already difficult time that districts 
have in recruiting and retaining highly qualified staff.
    Discussion: We agree that not all reform models are appropriate in 
all circumstances. As States and LEAs work to implement reforms in the 
persistently lowest-achieving schools, they should exercise great care 
in determining exactly which reforms actions to implement in which 
schools. This notice includes three intervention models (turnaround, 
restart, and transformation) that do not require the closing of a 
school.
    Changes: None.

Schools That Have Been Turned Around

    Comment: Some commenters expressed concern that the use of the 
phrase schools that have been turned around implies improvement in 
academic results in a formerly low-performing school. Commenters 
recommend restricting the use of the term ``turned around'' to 
circumstances in which States can demonstrate significant improvement 
in student achievement. Further, the commenters recommended defining 
this model as ``major reform actions'' or ``school that has undertaken 
a turn-around strategy.''
    Discussion: The Department appreciates the commenters' concern that 
the term schools that have been turned around implies an outcome rather 
than an input. The term ``turnaround'' has several meanings, but we 
believe that this notice clearly uses it to describe a process for 
improving student achievement in a persistently lowest-achieving 
school.
    Changes: None.
    Comment: Several commenters expressed concern regarding the 
requirement that one element of the turnaround model is the replacement 
of at least 50 percent of the existing staff. Several commenters 
indicated that the 50 percent figure is arbitrary. A few commenters 
stated that there is a lack of existing research that supports the 
assertion that a certain percentage of staff need to be replaced in 
order to successfully turn around a school. Several commenters 
recommended that the definition not include a specific percentage. One 
commenter recommended that, under this model, all teachers should be 
required to reapply for a teaching position with the new school 
leadership having the authority to rehire teachers regardless of 
seniority or tenure. Another commenter expressed concern that replacing 
a majority of staff may not be the most effective approach for every 
school; the new school leadership may determine, after an evaluation of 
existing staff, that less than a majority be replaced to support the 
turn-around effort. One commenter recommended that schools operating 
under this model should be required to retain at least 50 percent of 
current qualified staff.
    Discussion: The Department recognizes that replacing leadership and 
staff is one of the most difficult aspects of the school turnaround 
option. However, we also believe that in our lowest-performing schools, 
many of which have failed to improve despite repeated turnaround 
efforts, dramatic and wholesale changes in leadership and staffing can 
be the key to creating the new climate and culture needed to break the 
cycle of educational failure. Moreover, the required turnaround option 
leaves room to accommodate many of the flexibilities suggested by these 
commenters. For example, a principal has the option of retaining 
roughly half of existing staff who are deemed effective and who commit 
to supporting other key elements of the school's turnaround plan. With 
regard to the comment that new school leadership have the authority to 
rehire teachers regardless of seniority or tenure, the Department 
believes such issues are best resolved at the State and local levels in 
the context of existing collective bargaining agreements; however, in 
schools implementing a turnaround model, the principal must be provided 
with sufficient operational flexibility, including in making staffing

[[Page 58464]]

decisions, to implement fully a comprehensive approach to substantially 
improving student achievement outcomes. Finally, the Department would 
like to make clear that the turnaround option is only one of four 
reform models outlined in this notice. If a school determines that the 
requirements of a turnaround model are too restrictive, the LEA may 
choose to implement another reform model in the school.
    Changes: The definition of a turnaround model has been revised to 
require that the principal be given sufficient operational flexibility, 
including in selecting staff, to implement fully a comprehensive 
approach to substantially improving student achievement outcomes.
    Comment: One commenter recommended that States be encouraged to 
develop or support programs for rigorous preparation for principals who 
are hired to turn around a school.
    Discussion: We agree that principals need rigorous preparation and 
support in order to achieve results in persistently lowest-achieving 
schools. We encourage States and LEAs to work with existing, or develop 
new, principal and school leadership programs that ensure adequate 
preparation and ongoing support for principals working in persistently 
lowest-achieving schools. We decline in this notice to require such 
actions of States because the purpose of this notice is to have States 
collect and publicly report data, not to establish professional 
development policies.
    Changes: None.

Schools That Have Made Progress

    Comment: A few commenters expressed concern that the proposed 
definition of schools that have made progress will not provide 
information on whether schools are improving student achievement. The 
commenters stated that this definition assumes that, on average, rates 
in reading and mathematics are improving from year to year. Commenters 
noted that, while this is true in many States, proficiency rates in 
some States have been nearly flat or have declined from year to year. A 
few commenters recommended that the Department require States to report 
the average statewide gains used to determine whether schools meet the 
definition of making progress in reading/language arts and mathematics. 
Commenters recommended that the definition stipulate that gains in the 
``all students'' category be greater than zero and, for schools 
identified in the ``all students'' category, that the gains in the 
``all students'' category be equal to or greater than the average gains 
of schools in the State in the ``all students category.'' Additionally, 
several commenters expressed concern that underperformance by subgroups 
could go unchecked. Some commenters recommended that the definition of 
a school that has made progress require gains for the subgroup or 
subgroups that are equal to or greater than the average gains of 
schools in the State in the ``all students'' category, and that are 
greater than zero. Another commenter recommended changing the phrase 
``in the `all students' category (as under section 1111(b)(2)(C)(v)(I) 
of ESEA'' to ``in the `all students' and `subgroups' categories (as 
under section 1111(b)(2)(C)(v) of ESEA.''
    Discussion: We agree that a school that has made progress must 
demonstrate positive gains. We also agree that, in order to monitor 
progress on closing the achievement gap the data collection must 
include measures of subgroup performance and average statewide subgroup 
performance within the State. The reporting of average statewide gains 
will provide useful information regarding progress in the State.
    Changes: We have revised the definition of school that has made 
progress as follows:
    With respect to the requirements that a State collect and publicly 
report the numbers and percentages of certain groups of schools that 
have made progress on State assessments in reading/language arts and in 
mathematics in the last year, school that has made progress means a 
school whose gains on the assessment, in the ``all students'' category 
and for each student subgroup (as under section 1111(b)(2)(C)(v) of the 
ESEA), are equal to or greater than the average statewide school gain 
in the State on that assessment, in the ``all students'' category and 
for each student subgroup, except that if the average statewide school 
gains in the State on that assessment are equal to or less than zero, 
the gains of the school must be greater than zero.
    We also have revised Indicators (d)(1) and (d)(2). Indicator (d)(1) 
requires that a State provide, for the State, the average statewide 
school gain in the ``all students'' category and the average statewide 
school gain for each student subgroup (as under section 
1111(b)(2)(C)(v) of the ESEA) on the State assessments in reading/
language arts and for the State and for each LEA in the State, the 
number and percentage (including numerator and denominator) of Title I 
schools in improvement, corrective action, or restructuring that have 
made progress (as defined in this notice) on State assessments in 
reading/language arts in the last year.
    Indicator (d)(2) requires a State to provide, for the State, the 
average statewide school gain in the ``all students'' category and the 
average statewide school gain for each student subgroup (as under 
section 1111(b)(2)(C)(v) of the ESEA) on State assessments in 
mathematics and for the State and for each LEA in the State, the number 
and percentage (including numerator and denominator) of Title I schools 
in improvement, corrective action, or restructuring that have made 
progress on State assessments in mathematics in the last year.
    Comment: One commenter asserted that student achievement must be 
used in conjunction with graduation rates for high schools to ensure 
that there is no incentive for schools to have low-performing students 
leave the school prior to graduation. The commenter recommended adding 
to the definition of school that has made progress that a high school 
must also have made gains in graduating students at a rate that is 
equal to or greater than the average graduation rate gain of other 
schools in the State and that the definition of continuous and 
substantial improvement as defined by the Department in 34 CFR 
200.19(b)(1) be met.
    Discussion: The Department agrees that all high schools should work 
to ensure that all of their students are graduating with a regular high 
school diploma. As a result of our concern over graduation rates, we 
have chosen, as discussed previously, to require States to collect and 
publicly report data and information on their persistently lowest-
achieving schools . This requirement will capture secondary schools 
with graduation rates below 60 percent. The Department believes that 
the changes it has made to the definition of persistently lowest-
achieving schools sufficiently address the commenters' concern 
regarding high school graduation rates.
    Changes: None.
    Comment: A few commenters recommended that those schools in 
improvement, corrective action, or restructuring determined to be 
making progress in reading/language arts and mathematics, respectively, 
be identified by name (in addition to providing the number and 
percentage of such schools) in the reports States provide under 
education reform area (d).
    Discussion: While we encourage States to identify the schools in 
improvement, corrective action, or restructuring determined to be 
making progress in reading/language arts and

[[Page 58465]]

mathematics, we do not believe it is necessary to require States to 
provide these identifications.
    Changes: None.
    Comment: One commenter expressed concern that the number and 
percentage of schools that have made progress in reading/language arts 
and mathematics do not align with current assessment and reporting 
priorities since student assessments are conducted and reported by 
grade level. The commenter asked that the Department provide guidance 
on how States and LEAs should calculate school-level, rather than 
grade-level, improvement. Similarly, one commenter stated that guidance 
is needed on how States should calculate the student gains used to 
determine school progress; otherwise, the commenter said, there will 
not be a way to meaningfully compare data among States.
    Discussion: The Department will provide guidance to States on 
calculating school-level progress in reading/language arts and 
mathematics.
    Changes: None.
    Comment: One commenter recommended that States be required to list 
the number of schools that have emerged from improvement, corrective 
action, or restructuring and to describe what activities led to these 
results.
    Discussion: The Department agrees that it is important to make 
public the identity of schools that have emerged from improvement, 
corrective action, or restructuring. The data that States will make 
available under the requirements of this notice will over time provide 
parents, educators, and policymakers with information on the extent to 
which States and LEAs have had success in reforming the persistently 
lowest-achieving schools. Information on the type of reforms 
implemented in those schools will also be publicly available. However, 
while we encourage studies on the efficacy of particular reform 
strategies, we believe that requiring States to conduct such studies is 
beyond the scope of the SFSF program.
    Changes: None.
    Comment: One commenter recommended that the Department add an 
indicator that would provide additional information on the dollar 
amount and percentage of SFSF funds spent on secondary schools.
    Discussion: States will provide quarterly data on the uses of funds 
appropriated under the ARRA as required by section 1512 of the ARRA. In 
addition, States will provide an annual report on uses of SFSF funds. 
These reports will provide a certain amount of information on the uses 
of ARRA funds. While we believe it would be useful also to require 
States to collect and publicly report information on expenditure of 
SFSF funds at the school level, we are mindful here, as in other areas, 
of the burden of such a requirement on States and LEAs. We, therefore, 
decline to require further reporting in this area.
    Changes: None.

Charter Schools

    Comment: As described earlier in this notice, one commenter stated 
that the Department should require each State to indicate whether the 
information it reports includes information from charter schools and, 
if such information is not currently available, require the State to 
provide information in its State plan on the steps it will take to 
collect information on charter schools.
    Discussion: Under the requirements, States will report information 
on charter schools that are LEAs in the same manner that they will 
provide information on any LEA. Further, information on public charter 
schools that are not LEAs is provided in the same manner as it is for 
other public elementary and secondary schools.
    Additionally, as proposed in the NPR and established in this 
notice, the Department is requiring States to collect and publicly 
report information on the number of charter schools that are permitted 
to operate and that are actually operating in the State (new Indicators 
(d)(7) and (d)(8)). However, and as discussed in greater detail later 
in this section, the Department agrees that it is important to collect 
information on the academic achievement of students who attend charter 
schools as well and has added new Indicators (d)(9) and (10) that 
measure the performance of charter school students on State assessments 
in reading/language arts and mathematics.
    Changes: As discussed in more detail later, the Department has 
added new Indicators (d)(9) and (d)(10) to education reform area (d).
    Comment: A few commenters expressed support for proposed indicators 
(d)(6) through (d)(9). However, many commenters expressed concern over 
the Department's focus on charter schools. Several commenters objected 
to the emphasis on charter schools, noting that research suggests that 
many charter schools perform no better than regular public schools in 
raising student achievement. A number of commenters believe that these 
indicators will promote an overemphasis on charter schools while 
ignoring other alternatives. They urged the Department to focus on 
other models for turning around schools and to allow States flexibility 
in determining the best strategies.
    Discussion: The Department appreciates the comments in support of 
the goal of increasing the number of high-performing charter schools as 
a strategy for both turning around the persistently lowest-performing 
schools and for increasing the educational options for students 
attending such schools. The Department recognizes that the available 
research on the effectiveness of charter schools in raising student 
achievement is mixed. However, we believe strongly that high-performing 
charter schools can be especially valuable in communities where 
chronically low-performing traditional public schools have failed to 
improve after years of conventional turnaround efforts. In such cases, 
high-performing charter schools, whether created through the conversion 
of a traditional public school enrolling the same students or by 
establishing a new school that provides an alternative to traditional 
public schools, can offer promising and proven options for breaking the 
cycle of educational failure. Finally, while we believe in the ability 
of high-performing charter schools to turn around struggling schools, 
we do not believe that they are the only reform option. States and LEAs 
have developed alternative intervention models that have demonstrated 
success in raising student achievement in low-performing schools. In 
addition to high-quality charter schools, we encourage the use of these 
alternatives that have proven to be successful in transforming 
struggling schools.
    Changes: None.
    Comment: One commenter questioned why progress information is not 
required for charter schools when the Department has indicated that it 
wants to hold charter schools accountable. The commenter proposed a new 
indicator requiring information on charter school progress in reading 
and mathematics.
    Discussion: We agree that information should be collected on 
charter school progress in improving student achievement in reading/
language arts and mathematics. Charter schools can serve as models for 
school reform, but it is important that they be held accountable for 
their performance. Collecting data on charter school progress in 
reading/language arts and mathematics will provide valuable information 
on charter school performance.
    Changes: Two new indicators have been added to reform area (d) to 
address charter school progress in reading/language arts and 
mathematics. New Indicator (d)(9) requires each State to

[[Page 58466]]

provide, for the State and for each LEA in the State that operates 
charter schools, information on the number and percentage of charter 
schools that have made progress on State assessments in reading/
language arts in the last year. New Indicator (d)(10) establishes the 
same requirement for State assessments in mathematics.
    Comment: A number of commenters asserted that the proposed data 
collection regarding charter schools would provide only a superficial 
overview of charter school accountability and success and proposed new 
indicators to collect additional information. The proposals included 
collecting information on the charter school application process, the 
number of charter school applications received each year, and the 
number of applications approved and denied. The proposed indicators 
also included collecting data on the extent to which charter schools 
serve student populations comparable to non-charter public schools in 
the district, and if a non-charter school was converted to a charter 
school, the percentage of the former student population the charter 
school continues to serve. Commenters also suggested collecting data on 
reform strategies that have been applied to the lowest-achieving 
charter schools and requiring States that allow charter schools to show 
evidence of charter school success. Another commenter suggested that 
all data related to charter schools be disaggregated by subpopulation.
    Discussion: By requiring States to publicly report the number of 
charter schools permitted to operate under State law, the number that 
are currently operating, the number of charter schools that have closed 
and the reason for closure, this final notice will ensure parents, 
policy makers and other stakeholders have access to valuable 
information on States' charter school laws, operations, and 
accountability. To ensure greater transparency, States must report this 
information in each of the last five years instead of, as called for in 
the proposed requirements, over the last five years.
    While we encourage States to collect and publicly report data on 
the performance of charter schools beyond what is called for in this 
notice, we believe that the information we are requiring is sufficient 
for the purposes of this program.
    Changes: New Indicators (d)(11) and (d)(12) (proposed Indicators 
(d)(8) and (d)(9)) require that the information be publicly reported 
for ``each of the last five years'' as opposed to ``the last five 
years.''
    Comment: One commenter recommended that the Department prohibit 
charter schools from refusing students based on test scores, special 
needs, or any other factor.
    Discussion: The Department believes that all students should have 
access to an excellent education. However, State and local governments 
possess the authority to authorize charter schools and as such, 
requirements for charter school admissions are primarily State and 
local matters. Nonetheless, Federal civil rights laws prohibit charter 
schools (as recipients of Federal funds or as public entities) from 
discriminating in admissions on the basis of race, color, national 
origin, sex, or disability.\7\ In addition, we note that charter 
schools receiving funds under the Department's Charter Schools Program 
(CSP) may set minimum qualifications for admission only to the extent 
that such qualifications are: (a) Consistent with the statutory 
purposes of the CSP; (b) reasonably necessary to achieve the 
educational mission of the charter school; and (c) consistent with 
civil rights laws and Part B of the Individuals with Disabilities 
Education Act.\8\
---------------------------------------------------------------------------

    \7\ Additional information on the application of Federal civil 
rights laws to charter schools is available at http://www.ed.gov/offices/OCR/archives/pdf/charter.pdf.
    \8\ Additional information on the CSP is available at http://www.ed.gov/programs/charter/legislation.html.
---------------------------------------------------------------------------

    Changes: None.
    Comment: One commenter suggested adding ``mismanagement'' to the 
list of possible reasons a charter school may have closed.
    Discussion: While the reasons for charter school closure included 
in the notice are not meant to be exhaustive, the Department believes 
that requiring States to report information on the closure of charter 
schools due to academic, educational or financial reasons captures the 
vast majority of official `mismanagement' circumstances that would 
cause a charter school to close or not be renewed. The Department has 
provided an ``other'' category to allow for closures not reflected in 
the choices provided. A State could use that category for schools 
closed because of other instances of ``mismanagement''.
    Changes: None.
    Comment: One commenter asked for clarification of which entities 
would constitute a valid source of information on why a charter school 
closed.
    Discussion: SEAs are ultimately responsible for all schools in the 
State and as such will be a valid source for why a charter school has 
closed.
    Changes: None.
    Comment: One commenter suggested that the Department consider 
limiting the charter school data collection to such factors as size of 
enrollment and length of operation. The commenter also recommended that 
SEAs not be required to collect data on reasons for charter school 
closures in previous years because some States do not have this 
information and would be required to collect it retroactively.
    Discussion: The Department believes that many States will already 
have this information. States will need to collect information on 
charter schools for the purposes of State funding and reporting for 
LEAs and schools and, in doing so, will likely determine which charter 
schools have closed. It is also likely that States also collect 
information on the reasons for closure. Though some States may not 
currently collect and publicly report this information, the Department 
believes that it is important that they do so. Understanding the 
reasons for charter school closures can help States, LEAs, and other 
stakeholders determine which models of charter schools are effective 
and eliminate those that are not.
    Changes: None.
    Comment: One commenter recommended that the Department issue clear 
reporting guidelines and a standard form for reporting the reasons for 
charter school closures in order to eliminate potential problems with 
reporting such data.
    Discussion: Policies regarding authorization and closure of charter 
schools vary greatly from State to State. The Department cannot provide 
a standard reporting form that would address all of the different 
issues in each State. We leave the establishment of such guidelines and 
reporting forms to each State.
    Changes: None.
    Comment: One commenter asked for clarification regarding our intent 
when we ask for information regarding ``the number of charter schools 
currently permitted to operate.''
    Discussion: In this section, the Department intends to require 
States to collect and publicly report information on the number of 
charter schools currently permitted to operate under State law.
    Changes: We have revised new Indicator (d)(7) so that the indicator 
now reads: Provide for the State and, if applicable, for each LEA in 
the State, the number of charter schools that are currently permitted 
to operate under State law.

[[Page 58467]]

Comments and Responses on the SIG NPR

    As noted earlier, the following discussion summarizes the comments 
we received, and our responses, on the ``Tier I'' and ``Tier II'' 
schools proposed in the SIG NPR that are now included in the definition 
of persistently lowest-achieving schools. The discussion also 
summarizes the comments and our responses on the four school 
intervention models proposed in the SIG NPR.

Definition of Persistently Lowest-Achieving Schools

    Comment: A number of commenters recommended alternatives to the 
process proposed in the SIG NPR for determining the lowest-achieving 
five percent of all Title I schools in improvement, corrective action, 
or restructuring in the State--that is, ``Tier I'' schools. As proposed 
in the SIG NPR, a Tier I school is a school in the lowest-achieving 
five percent of all Title I schools in improvement, corrective action, 
or restructuring in the State, or one of the five lowest-achieving 
Title I schools in improvement, corrective action, or restructuring in 
the State, whichever number of schools is greater. Under the SIG NPR, 
to determine this ``bottom five percent,'' a State would have had to 
consider both the absolute performance of a school on the State's 
assessments in reading/language arts and mathematics and whether its 
gains on those assessments for the ``all students'' group over a number 
of years were less than the average gains of schools in the State for 
the ``all students'' group.
    Several commenters said this proposed process was too prescriptive 
and recommended that States have more flexibility in determining the 
lowest-achieving five percent. The commenters specifically suggested 
permitting States to restrict Tier I schools to schools in 
restructuring if this group constitutes more than five percent of a 
State's identified schools; to apply a State's growth model; or to 
consider such other factors as measures of individual student growth, 
writing samples, grades, and portfolios. One commenter suggested that 
the Department determine the lowest-achieving five percent of schools 
in the Nation rather than have each State determine its own lowest-
achieving five percent. Other commenters recommended changes that 
include taking into account the length of time a school has been 
designated for restructuring, measuring gains related to English 
language proficiency, and including newly designated Title I schools 
(especially secondary schools) that do not yet have an improvement 
status.
    Several commenters also suggested changing the method for 
determining ``lack of progress,'' including using subgroups rather than 
the ``all students'' group, measuring progress in meeting adequate 
yearly progress targets, and narrowing achievement gaps. Another 
commenter recommended clarifying that, even if a school shows gains 
greater than the State average, it should not be considered to be 
making progress if those gains are not greater than zero.
    Finally, several commenters suggested that graduation rates be 
taken into account in determining the lowest-achieving Title I high 
schools. One of these commenters suggested including in Tier I all 
Title I high schools in improvement, corrective action, or 
restructuring with a graduation rate below 60 percent as well as their 
feeder middle and junior high schools.
    Discussion: In developing our proposed definition of the lowest-
achieving five percent of schools for each State as defined in the SIG 
NPR, we considered several alternatives, including the use of the 
existing ESEA improvement categories and the possibility of using a 
measure that would identify the lowest-achieving five percent of 
schools in the Nation rather than on a State-by-State basis. The goal 
was to identify a uniform measure that could be applied easily by all 
States using existing assessment data. We started with Title I schools 
in improvement, corrective action, or restructuring as the initial 
universe from which to select the lowest-achieving schools because 
those are the schools eligible to receive SIG funds. ESEA improvement 
categories were deemed too dependent on variations in individual 
subgroup performance, rather than the overall performance of an entire 
school, to reliably identify our worst schools. A nationwide measure, 
although appealing from the perspective of national education policy, 
would likely have identified many schools in a handful of States and 
few or none in the majority of States, making it an inappropriate guide 
for the most effective use of State formula grant funds.
    In general, we believe that the changes and alternatives suggested 
by commenters would add complexity to the method for determining the 
lowest-achieving five percent of schools without meaningfully improving 
the outcome. With the changes noted subsequently, we believe the 
definition proposed in the SIG NPR is straightforward, can be easily 
applied using data available in all States, and can produce easily 
understood results in the form of a list of State's lowest-achieving 
schools that have not improved in a number of years.
    Regarding the determination of whether a school is making progress 
in improving its scores on State assessments, the commenters 
highlighted the complexity and potential unreliability of measuring 
year-to-year gains on such assessments. In response, we are simplifying 
this aspect of the definition to give SEAs greater flexibility in 
determining a school's lack of progress on State assessments over a 
number of years.
    We also agree that it is important to include Title I high schools 
in improvement, corrective action, or restructuring that have low 
graduation rates in the definition. The Secretary has made addressing 
our Nation's unacceptably high drop-out rates--an estimated 1 million 
students leave school annually, many never to return--a national 
priority. In recognition of this priority, and in response to 
recommendations from commenters, we are including in the definition any 
Title I high school in improvement, corrective action, or restructuring 
that has had a graduation rate that is less than 60 percent over a 
number of years.
    Accordingly, we have made these changes and incorporated the 
process for determining the lowest-achieving five percent of Title I 
schools in improvement, corrective action, or restructuring--also known 
as Tier I schools for purposes of SIG funds--into a new definition of 
persistently lowest-achieving schools in this notice.
    Changes: The Department has added a definition of persistently 
lowest-achieving schools to this notice that incorporates the process 
described in the SIG NPR for determining the lowest-achieving five 
percent of Title I schools in improvement, corrective action, or 
restructuring (or the lowest-achieving five such schools, whichever 
number of schools is greater) (``Tier I'' schools for purposes of SIG). 
This new definition also includes any Title I high school in 
improvement, corrective action, or restructuring that has had a 
graduation rate of less than 60 percent over a number of years (as will 
the ``Tier I'' definition for SIG purposes). We have removed language 
in proposed section I.A.1.a(ii) of the SIG NPR defining ``a school that 
has not made progress.''
    Comment: Numerous commenters expressed support for including 
chronically low-achieving secondary schools that are eligible for, but 
not receiving Title I funds as Tier II schools, as proposed in section 
I.A.1.b in the SIG

[[Page 58468]]

NPR, including one commenter who suggested that LEAs be required to 
fund Tier II schools. Other commenters, however, opposed the use of 
Title I funds in non-Title I schools and recommended that other funding 
be identified to serve those schools or stated that the inclusion of 
those schools is more appropriately addressed in the Title I 
reauthorization. One commenter suggested that it would not be 
appropriate to provide Title I funds to such schools when the SIG NPR 
would restrict the number of Title I schools that can be served in Tier 
I.
    Discussion: We believe that low-achieving secondary schools often 
present unique resource, logistical, and pedagogical challenges that 
require rigorous interventions to address. Yet, many such schools that 
are eligible to receive Title I funds are not served because of 
competing needs for Title I funds within an LEA. The large amounts of 
ARRA funds--available through Stabilization, Race to the Top, and SIG--
present an opportunity to address the needs of these low-achieving 
secondary schools. Accordingly, we have continued in this notice to 
include secondary schools that are eligible for, but do not receive, 
Title I funds in the definition of the persistently lowest-achieving 
schools in a State.
    As proposed in the SIG NPR, such secondary schools would have been 
eligible if they were equally as low-achieving as a Tier I school. We 
realized that this standard was too vague, particularly in light of the 
rigorous interventions that would be required if an SEA identified, and 
an LEA decided to serve, such a school. As a result, we have changed 
the definition to include secondary schools that are eligible for, but 
do not receive, Title I funds and that are among the lowest-achieving 
five percent of such schools in a State (or the lowest five such 
schools, whichever number of schools is greater). An SEA must identify 
these schools using the same criteria as it uses to identify the 
lowest-achieving Title I schools in improvement, corrective action, and 
restructuring.
    For the reasons noted earlier in this notice, we have also included 
in the definition any high school that is eligible for, but does not 
receive, Title I funds and that has had a graduation rate that is less 
than 60 percent over a number of years.
    Changes: The Department has added a definition of persistently 
lowest-achieving schools to this notice that incorporates the lowest-
achieving five percent of secondary schools in a State that are 
eligible for, but do not receive, Title I funds (or the lowest-
achieving five such schools, whichever number of schools is greater) 
(``Tier II'' schools for purposes of SIG). This new definition also 
includes any high school that is eligible for, but does not receive, 
Title I funds that has had a graduation rate of less than 60 percent 
over a number of years (as will the ``Tier II'' definition for SIG 
purposes). We have removed language in proposed section I.A.1.b of the 
SIG NPR that required a comparison of the achievement of secondary 
schools to Tier I schools.

General Comments on the Four Intervention Models

    Comment: One commenter supported the Secretary's intent in 
proposing the four interventions in the SIG NPR. The commenter noted 
that the majority of SIG funds are intended to target the very lowest-
achieving schools in the Nation--schools that have not just missed 
their accountability targets by narrow margins or in a single subgroup. 
Rather, they are schools that have ``profoundly fail[ed]'' their 
students ``for some time.'' Accordingly, the commenter acknowledged 
that the four interventions are appropriately designed to engage these 
schools in bold, dramatic changes or else to close their doors.
    Conversely, several commenters suggested that the four 
interventions are too prescriptive and do not leave room for State 
innovation and discretion to fashion similarly rigorous interventions 
that may be more workable in a particular State. The commenters noted 
that for some school districts, particularly the most rural districts, 
none of the interventions may be feasible solutions. In addition, 
several commenters rejected the idea that there should be any Federal 
requirements governing struggling schools. The commenters suggested 
that schools in need of improvement be permitted to engage in self-
improvement strategies tailored to each individual school's needs as 
determined at the local level based on local data, rather than being 
mandated to adopt specific models by the Federal Government.
    Discussion: We disagree that the four models limit State 
innovation. Each model provides flexibility and permits LEAs to develop 
approaches that are tailored to the needs of their schools within the 
broad context created by each model's requirements. We do not believe 
that any one model is appropriate for all schools; rather, it is the 
Department's intention that LEAs select the model that is appropriate 
for each particular school.
    Changes: None.
    Comment: Several commenters suggested adding a fifth intervention 
option. One commenter, for example, suggested permitting States to 
propose an alternative, but rigorous, intervention model for approval 
through a peer review process. The commenter noted that whatever 
accountability measure is adopted in the SIG notice of final 
requirements should serve to ensure that the model is held accountable 
for results. Another commenter suggested a ``scale up'' model, in which 
an LEA could use SIG funds to expand interventions with documented 
success in producing rapid improvement in student achievement within 
that LEA or in another LEA with similar demographics and challenges. 
Yet another commenter suggested adding a ``supported transformation'' 
model to accommodate, in particular, the needs of children in low-
achieving schools in small, rural communities that lack the capacity to 
transform their schools. The commenter identified the need for an SEA 
to build the capacity of struggling LEAs by working to develop models 
for intervention, to identify specific evidence-based intervention 
strategies, and to provide ongoing, intensive technical, pedagogical, 
and practical assistance so as to increase LEAs' capacity to assist 
their low-achieving schools.
    Discussion: We included the four school intervention models in the 
SIG NPR after an extensive examination of available research and 
literature on school turnaround strategies and after outreach to 
practitioners. Our goal, which we believe was achieved, was to identify 
fundamental, disruptive changes that LEAs could make in order to 
finally break the long cycle of educational failure--including the 
failure of previous reforms--in the Nation's persistently lowest-
achieving schools. We also believe that these models, despite their 
limited number, potentially encompass a wide range of specific reform 
approaches, thus negating the need for a ``fifth model.'' We 
understand, for example, that school closure may not work in some LEAs, 
but that leaves the turnaround, restart, or transformation models as 
possible options for them. We also know that not all States have a 
charter school law, limiting the restart options available to LEAs in 
such States. However, even where charter schools are not an option, an 
LEA could work with an Education Management Organization (EMO) to 
restart a failed school or could pursue one of the other three 
intervention models. And we understand that some rural areas may face 
unique challenges

[[Page 58469]]

in turning around low-achieving schools, but note that the significant 
amount of funding available to implement the four models will help to 
overcome the many resource limitations that previously have hindered 
successful rural school reform in many areas.
    The four school intervention models described in the SIG NPR also 
are internally flexible, permitting LEAs to develop their own 
approaches in the broad context created by the models' requirements. 
For example, the turnaround and restart models focus on governance and 
leadership changes, leaving substantial flexibility and autonomy for 
new leadership teams to develop and implement their own comprehensive 
improvement plans. Even the transformation model includes a wide 
variety of permissible activities from which LEAs may choose to 
supplement required elements, which are primarily focused on creating 
the conditions to support effective school turnarounds rather than the 
specific methods and activities targeting the academic needs of the 
students in the school.
    We also note that over the course of the past eight years, States 
and LEAs have had considerable time, and have been able to tap new 
resources, to identify and implement effective school turnaround 
strategies. Yet they have demonstrated little success in doing so, 
particularly in the Nation's persistently lowest-achieving schools, 
including an estimated 2,000 ``dropout factories.'' Under the ESEA, 
States have been required to set up statewide systems of support for 
LEA and school improvement; to identify low-achieving schools for a 
range of improvement, corrective action, and restructuring activities; 
and to use the school improvement reservation under section 1003(a) of 
the ESEA to fund such improvement activities. However, the overall 
number of schools identified for improvement, corrective action, and 
restructuring continues to grow; in particular, the number of 
chronically low-achieving Title I schools identified for restructuring 
has roughly tripled over the past three years to more than 5,000 
schools. SEAs have thus far helped no more than a handful of these 
schools to successfully restructure and exit improvement status, in 
large part, we believe, because of an unwillingness to undertake the 
kind of radical, fundamental reforms necessary to improve the 
persistently lowest-achieving schools.
    Finally, although we believe this recent history of failed school 
improvement efforts justifies using ARRA SIG funds to leverage the 
adoption of the more far-reaching reforms required by the four school 
intervention models, we note that Part A of Title I of the ESEA 
continues to make available nearly $15 billion annually, as well as an 
additional $10 billion in fiscal year 2009 through the ARRA, that SEAs 
and LEAs may use to develop and implement virtually any reform strategy 
that they believe will significantly improve student achievement and 
other important educational outcomes in Title I schools. In particular, 
we would applaud State and local efforts to use existing Title I funds 
to scale up successful interventions or to build State and local 
capacity to develop and implement other promising school intervention 
models. For all of these reasons, we decline to add a fifth school 
intervention model to this notice.
    Changes: None.

Turnaround Model

Principal and Staff Replacement

    Comment: Many commenters opposed replacing principals and staff as 
part of the turnaround model. Although several commenters acknowledged 
that poor leadership and ineffective staff contribute to a school's low 
performance, a majority claimed that staff replacement has not been 
established as an effective reform strategy, others stated that such a 
strategy is not a realistic option in many communities that already 
face teacher and principal shortages, and one commenter suggested that 
replacement requirements associated with turnaround plans would 
discourage teachers and principals from working in struggling schools.
    In addition, many commenters opposed sanctioning principals and 
staff, partly because, as one commenter claimed, the turnaround model 
assumes that most problems in a school are attributable to these 
individuals. One stated that principals face ``trying'' circumstances 
and another stated that the proposed requirements ignore the ``vital 
role'' that principals play in high-need schools. These commenters 
stated that other factors--such as poverty, lack of proper support, and 
tenure and collective bargaining laws--should be addressed before 
decisions are made to replace principals and staff. One commenter 
claimed that principals and teachers in low-achieving schools could 
perform their jobs if they are given adequate training and support and 
working conditions are improved. Another opposed the replacement 
requirement because the commenter believed a stable and consistent 
staff is a key factor in school improvement.
    Discussion: We understand that replacing leadership and staff is 
one of the most difficult aspects of the four models; however, we also 
know that many of our lowest-achieving schools have failed to improve 
despite the repeated use of many of the strategies suggested by the 
commenters. The emphasis of the ARRA on turning around struggling 
schools also reflects, in part, an acknowledgement by the Congress that 
past efforts have had limited or no success in breaking the cycle of 
chronic educational failure in the Nation's persistently lowest-
achieving schools.
    Accordingly, the Department believes that dramatic and wholesale 
changes in leadership, staffing, and governance--such as those required 
by the turnaround model--are an appropriate intervention option for 
creating an entirely new school culture that breaks a system of 
institutionalized failure. Although we acknowledge the possibility that 
the turnaround model could discourage some principals and teachers from 
working in the lowest-achieving schools, others will likely be 
attracted by the opportunity to participate in a school turnaround with 
other committed staff. In addition, other Federal programs, such as the 
Teacher Incentive Fund and Race to the Top programs, are helping to 
create incentives and provide resources that can be used to attract and 
reward effective teachers and principals and improve strategies for 
recruitment, retention, and professional development.
    Changes: None.
    Comment: A number of commenters recommended changes to the 
principal and staff replacement requirements. One commenter proposed a 
detailed ``fifth model'' that focused upon providing additional support 
to teachers by improving working conditions, such as reducing class 
size and providing professional development opportunities. Others 
recommended (1) providing a principal with the autonomy to make his or 
her own firing and hiring decisions instead of requiring the 
replacement of 50 percent of the staff; (2) allowing staff to reapply 
for their positions; (3) retaining principals who were recently hired; 
(4) providing principals with a ``window'' of opportunity to improve 
their schools before being replaced; (5) suggesting that the 
replacement requirement extend to superintendents and boards of 
education; (6) retaining at least 50 percent of current staff who 
reapply and meet all of the requirements of the

[[Page 58470]]

redesigned school; and (7) focusing on staff qualifications and putting 
in place effective staff rather than on a particular target level of 
replacements.
    Discussion: We agree with some of the changes to the turnaround 
model suggested by commenters. For example, new language in paragraph 
(a)(1)(i) of the turnaround model recognizes the vital role played by 
the principal and acknowledges that new principals need authority to 
make key changes required to turn around a failing school. Under this 
new language, the new principal of a turnaround school would have 
``sufficient operational flexibility (including in staffing, calendars/
time, and budgeting) to implement fully a comprehensive approach to 
substantially improve student achievement outcomes and increase high 
school graduation rates.''
    We also recognize that the staff selected for a turnaround school 
must have the skill and expertise to be effective in this context. We 
are adding language clarifying that all personnel must be screened and 
selected based on locally adopted competencies to measure their 
effectiveness in a turnaround environment.
    In addition, while the SIG NPR would have required an LEA to 
replace at least 50 percent of the staff of a turnaround school, new 
paragraph (a)(1)(ii)(A) of the turnaround model requires an LEA, after 
screening all staff using locally adopted competencies, to rehire no 
more than 50 percent of the school's staff. Further, some commenters 
appear to have overlooked proposed section I.B.1 in the SIG NPR, which 
would give LEAs flexibility to continue implementing interventions 
begun within the last two years that meet, in whole or in part, the 
requirements of the turnaround, restart, or transformation models and, 
thus, would in many cases allow an LEA to retain a recently hired 
principal in a turnaround school. We are retaining this flexibility 
provision in this notice.
    Finally, the turnaround model includes significant provisions aimed 
at supporting teachers. For example, the SIG NPR called for ``ongoing, 
high-quality, job-embedded professional development to staff,'' as well 
as increased time for collaboration and professional development for 
staff. These supports for teachers and other staff are retained in this 
final notice.
    Changes: We have modified the provisions in the turnaround model in 
paragraph (a)(1)(i) to give the new principal of a turnaround school 
``sufficient operational flexibility (including in staffing, calendars/
time, and budgeting) to implement fully a comprehensive approach in 
order to substantially improve student achievement outcomes and 
increase high school graduation rates.'' As described earlier, we have 
also revised paragraph (a)(1)(ii) to require that an LEA use locally 
adopted competencies to measure the effectiveness of staff who can work 
within the turnaround environment to meet the needs of students. In 
addition, instead of the requirement that an LEA replace ``at least 50 
percent of the staff'' in a turnaround school, paragraph (a)(1)(ii)(A) 
of the definition requires an LEA to screen and rehire ``no more than 
50 percent'' of the existing staff.
    Comment: Numerous commenters expressed concerns that a national 
shortage of principals and teachers would prevent successful 
implementation of the turnaround model. Two commenters stated that, in 
order to replace half of the staff as required by the turnaround model, 
an LEA would likely be forced to hire less experienced teachers and 
rely on emergency credentials or licensure to fully staff a turnaround 
school. One commenter claimed that research shows that large pools of 
available applicants are essential for successful replacement of 
principals and teachers. Another commenter stated that there is a 
``national shortage of transformational leaders'' who can lead 
turnaround schools. Further, many commenters claimed that replacing 
half of a school's staff would be difficult or even impossible in rural 
schools and small communities. One commenter asserted that the shortage 
of teachers in rural areas would disqualify these LEAs from applying 
for school improvement funds. Another stated that even with recruitment 
incentives it would be difficult to fill staff vacancies. One commenter 
urged the Secretary to take such shortages into account before 
requiring ``blanket firings'' of teachers. In addition, several 
commenters observed that chronically low-performing schools already 
suffer from a number of vacancies due to high staff turnover rates. In 
fact, one commenter believed replacing 50 percent of the staff was not 
a ``tough'' consequence because these schools already experience high 
turnover.
    These concerns led several commenters to recommend flexibility 
regarding the staff replacement requirement of the turnaround model, 
including the opportunity to request a waiver if an LEA could 
demonstrate an inability to fill vacancies, and a required evaluation 
before principals and staff can be replaced. Other commenters opposed 
the replacement of principals without consideration of such factors as 
years of experience and district-level support, recommended a three-
year window in which to make replacement decisions based upon multiple 
measures, and suggested the provision of high-quality professional 
development before replacing any staff.
    Discussion: We recognize that the replacement requirement will 
present challenges for LEAs, particularly in rural areas, where highly 
effective principals and teachers capable of leading educational 
transformation may be in short supply; however, the difficulty of 
identifying new qualified teachers and school leaders for a turnaround 
school must be measured against the enormous human and economic cost of 
accepting the status quo for the Nation's persistently lowest-achieving 
schools. We simply cannot afford to continue graduating hundreds of 
thousands of students annually who are unprepared for either further 
education or the workforce, or to permit roughly one million students 
to drop out of high school each year, many of them never to return to 
school. Instead, States and LEAs must work together to recruit, place, 
and retain the effective principals and staff needed to implement the 
turnaround model. The Department is supporting these efforts through 
Federal grant programs that can provide resources for improving 
strategies used to recruit effective principals and teachers, such as 
the Teacher Incentive Fund program, which helps increase the number of 
effective teachers teaching poor, minority, and disadvantaged students 
in hard-to-staff subjects and schools.
    Finally, we wish to clarify that the requirements for the 
turnaround model do not require ``blanket firings'' of staff. The 
Department agrees that staff should be carefully evaluated before any 
replacement decisions are made and has added new language requiring 
LEAs to use ``locally adopted competencies to measure the effectiveness 
of staff who can work within the turnaround environment to meet the 
needs of students.'' If required by State laws or union contracts, 
principals and staff may have to be reassigned to other schools as 
necessary.
    Changes: As described earlier, we have revised paragraph (a)(1)(ii) 
to require that an LEA use locally adopted competencies to measure the 
effectiveness of staff who can work within the turnaround environment 
to meet the needs of students. The LEA must then screen all existing 
staff before rehiring no more than 50 percent of them.

[[Page 58471]]

    Comment: Numerous commenters claimed that there is little research 
supporting the replacement of leadership and staff in school turnaround 
efforts. One commenter cited a 2008 Institute of Education Sciences 
(IES) report, ``Turning Around Chronically Low-Performing Schools,'' 
that, according to the commenter, recommends that decisions to remove 
staff should be made on an individual basis. Several others also 
asserted that the proposed requirement to replace at least 50 percent 
of staff was arbitrary, with two commenters recommending instead that 
the Department ``empower the turnaround principal with the autonomy to 
hire, based on merit, for every position in the school.''
    Discussion: We are not claiming that merely replacing a principal 
and 50 percent of a school's staff is sufficient to turn around a low-
achieving school. Although principal and staff replacement are key 
features of the turnaround model proposed in the SIG NPR, they are not 
the only features. The strength of the turnaround model lies in its 
comprehensive combination of significant staffing and governance 
changes, an improved instructional program, ongoing high-quality 
professional development, the use of data to drive continuous 
improvement, increased time for learning and for staff collaboration, 
and appropriate supports for students. The staffing and governance 
changes are intended primarily to create the conditions within a 
school, including school climate and culture, that will permit 
effective implementation of the other elements of the turnaround model. 
Dramatic changes in leadership, staff, and governance structure help 
lay the groundwork to create the conditions for autonomy and 
flexibility that are associated with successful turnaround efforts. 
Accordingly, we decline to remove the requirement for replacing staff 
in a turnaround model.
    Changes: None.
    Comment: Many commenters claimed that teacher tenure, State 
collective bargaining laws, and union contracts prevent school 
administrators from replacing staff as required by the turnaround 
model. Several commenters stated that union contracts would force 
school administrators to reassign dismissed teaching staff to other 
schools, and the turnaround model would not solve the problem of 
removing ineffective teachers from the classroom. One commenter asked 
if an LEA would have to negotiate staff replacement with the union or 
if the Federal grant requirements supersede State due process laws. One 
commenter noted that the Department would have to provide ``involuntary 
transfer authority'' to LEAs in order for them to implement the 
turnaround model in collective bargaining States.
    Several commenters called for the Department to foster 
collaboration with teacher unions as well as the larger community. One 
of these commenters claimed that collaboration ``increases leadership 
and builds professionalism'' and recommended that evidence of 
collaboration be documented. Another asserted the involvement of 
school-based personnel in decision-making is key to the successful 
implementation of school interventions. Another recommended that an LEA 
seek ``feedback'' from all stakeholders, including students, parents, 
and unions, as to whether an intervention is ``feasible or warranted.''
    Discussion: We recognize that collective bargaining agreements and 
union contracts may present barriers to implementation of the 
turnaround model; however, we do not believe these barriers are 
insurmountable. In particular, drawing upon pockets of success in 
cities and States across the country, the Secretary believes LEAs and 
unions can work together to bring about dramatic, positive changes in 
our persistently lowest-achieving schools. Accordingly, the Department 
encourages collaborations and partnerships between LEAs and teacher 
unions and teacher membership associations to resolve issues created by 
school intervention models in the context of existing collective 
bargaining agreements. We also encourage LEAs to collaborate with 
stakeholders in schools and in the larger community as they implement 
school interventions.
    Changes: None.
    Comment: Many commenters stated that the term ``staff'' was not 
clearly defined. One commenter presumed it excluded maintenance, food 
services, and other support staff. Another stated that the Department 
should allow LEAs to develop their own definition of ``staff,'' and 
permit LEAs to determine whether non-instructional staff should be 
included in the replacement calculus. Two commenters also requested 
greater clarity regarding the meaning of ``new governance.''
    Discussion: We believe that, in high-achieving schools facing the 
most challenging of circumstances, every adult in the school 
contributes to the school's success, including the principal, teachers, 
non-certificated staff, custodians, security guards, food service 
staff, and others working in the school. Conversely, in a persistently 
lowest-achieving school, we believe that no single group of adults in 
the school is responsible for a culture of persistent failure. For this 
reason, our general guidance is that an LEA should define ``staff'' 
broadly in developing and implementing a turnaround model. The 
Department declines to define the term ``staff'' in this notice, but 
plans to issue guidance that will clarify this and other issues related 
to the turnaround model. As for the term ``governance,'' the language 
in paragraph (a)(1)(v) suggests a number of possible governance 
alternatives that may be adopted in the context of a turnaround model. 
The Department declines to provide a more specific definition in order 
to permit LEAs the flexibility needed to adopt a turnaround governance 
structure that meets their local needs and circumstances.
    Changes: None.
    Comment: Several commenters asked that the Department consider the 
possible negative consequences of replacing staff on a school and 
community, with one commenter suggesting that replacing half of the 
staff could result in more damage ``to a fragile school than no change 
at all.'' Another commenter stated that maintaining a consistent staff 
is a key to school success.
    Discussion: The Secretary disagrees that implementing a turnaround 
model would be worse than ``no change at all.'' The schools that would 
implement a turnaround model have, by definition, persistently failed 
our children for years, and dramatic and fundamental change is 
warranted. In addition, as stated elsewhere in this notice, the 
commenters overlook the fact that the other options--the 
transformation, school closure, and restart models--do not require 
replacement of 50 percent of a school's staff. If an LEA believes that 
it cannot successfully meet the requirements of the turnaround model, 
we recommend that it consider one of the other three options.
    Changes: None.
    Comment: Numerous commenters stated that decisions regarding school 
restructuring are best decided on the local, rather than the Federal, 
level. One commenter opposed the requirements for the turnaround model 
as being too prescriptive, and another recommended that the local 
school board be provided with the discretion to determine how best to 
implement the turnaround model. One commenter agreed that ``ineffective 
staff and leadership should be replaced in order for school improvement 
to work,'' but stated that the turnaround model's ``one-size-fits-all 
formula may not be the best approach for all schools.'' Two

[[Page 58472]]

commenters specifically stated that the decision to remove a principal 
and staff should be determined by a local school board. Similarly, 
another commenter noted that decisions to replace a principal and staff 
should be based upon ``local data'' rather than Federal requirements 
that are not tailored to an individual school's needs. One of these 
commenters stated that local decision-making is particularly important 
if a school has been underperforming for a period longer than the 
``principal's tenure or if the principal has begun a transformative 
process that could be harmed by a leadership change.''
    Discussion: An LEA is free to exercise local control and use local 
data and leadership to determine which of the four school intervention 
models to follow in turning around a persistently lowest-achieving 
school. However, after nearly a decade of broad State and local 
discretion in implementing, with little success, the school improvement 
provisions of the ESEA, the Department believes, for the purpose of 
this program, it is appropriate and necessary to limit that discretion 
and require the use of a carefully developed set of school intervention 
models in the Nation's lowest-achieving schools. In particular, the 
turnaround and transformation models include a combination of staffing, 
governance, and structural changes with specific comprehensive 
instructional reforms that the Department believes hold great promise 
for effective investment of the $3 billion provided for the SIG program 
by the ARRA.
    Changes: None.

Relationship Between Turnaround and Transformation Models

    Comment: Several commenters believed the turnaround model lacked 
sufficient detail and did not provide adequate direction to LEAs 
attempting to implement the model. In contrast, several commenters 
appreciated the level of detail contained in the transformation model 
and suggested that the turnaround model provide a similar level of 
detail. Some of these commenters recommended that the turnaround model 
incorporate some of the specific provisions contained in the 
transformation model. For example, one commenter suggested that the 
turnaround model include the transformation model's provisions 
regarding implementation of instructional changes. Another commenter 
specifically recommended that the turnaround model incorporate the 
transformation model's criteria for teacher effectiveness.
    Discussion: We agree that the turnaround model in the SIG NPR 
lacked clarity and potentially created confusion about whether 
applicants could draw upon permissible activities described in the 
transformation model. The Department did not intend to limit LEA 
discretion in adapting elements of the transformation model to the 
turnaround model. Accordingly, we are adding new language in paragraph 
(a)(2)(i) to clarify that an LEA implementing the turnaround model may 
implement any of the required and permissible activities under the 
transformation model.
    Changes: We have clarified in paragraph (a)(2)(i) that an LEA 
implementing a turnaround model may also implement other strategies 
such as ``[a]ny of the required and permissible activities under the 
transformation model.'' In addition, we have made changes in the 
turnaround model that correspond to changes we made in response to 
comments on the transformation model. The specific changes are noted 
subsequently in this notice in our discussion of comments on the 
transformation model.

Restart Model

    Comment: Many commenters opposed the restart model described in the 
SIG NPR because, they claimed, charter schools generally do not perform 
better than regular public schools. In particular, these commenters 
cited recent research from the Center for Research on Education 
Outcomes (CREDO) at Stanford University showing that fewer than one-
fifth of charter schools demonstrated gains in student achievement that 
exceeded those of traditional public schools. One commenter also 
mentioned a RAND study highlighting the low performance of charter 
schools in Texas and a study by researchers at Johns Hopkins University 
showing that most EMO-operated schools were outperformed by traditional 
public schools. Most of these commenters proposed broadening or 
strengthening the restart option, but one commenter recommended 
removing it from the list of permitted school intervention models. One 
commenter claimed that, where charter schools had raised student 
achievement, in most cases it was attributable to high student 
attrition rates brought about by demanding school schedules and 
behavioral rules that did not work for all students. A few commenters 
noted either that some States do not allow charter schools or that the 
restart model would be unlikely to work in rural areas. Several 
commenters also opposed the restart model because it might displace 
students and disrupt existing efforts to build community schools; 
another commenter recommended that any planning and reorganization for 
a restart model take place during the school year, while students 
remain in the school, so that there would be no disruption in services 
if the school were closed and then reopened as a restart school.
    Discussion: We acknowledge that the available research on the 
effectiveness of charter schools in raising student achievement is 
mixed, that some State laws significantly limit the creation or 
expansion of charter schools, and that smaller communities, 
particularly in rural areas, may not have sufficient access to 
providers or teachers to support the creation of charter schools. 
However, there are many examples of high-quality charter schools, and 
the Secretary believes very strongly that high-achieving charter 
schools can be a significant educational resource in communities with 
chronically low-achieving regular public schools that have failed to 
improve after years of conventional turnaround efforts. Although they 
are not a ``silver bullet'' for failing schools or communities, a more 
balanced view of the results produced by charter schools suggests that 
they offer promising and proven options for breaking the cycle of 
educational failure and fully merit inclusion in the restart model.
    The Department also recognizes the concerns expressed by commenters 
about the potential disruption to students, parents, and communities 
that may be connected with a restart plan that involves closing and 
then reopening a school. To help address this concern, we are adding 
language to this notice allowing a school conversion--and not just 
closing and reopening a school--to qualify as an acceptable restart 
model.
    At the same time, the Department emphasizes that just as the 
restart model is one of four school intervention models supported by 
this notice, charter schools are just one option under the restart 
model. Contracting with an EMO is another restart option that may 
provide sufficient flexibility in States without charter school laws or 
in rural areas where few charter schools operate. An EMO also may be 
able to develop and implement a plan that permits students to stay in 
their school while undergoing a restart. For example, some EMOs hired 
to turn around a low-achieving school may begin planning for the 
turnaround in late winter or early spring, hire and train staff in late 
spring and early summer, reconfigure and re-equip the school--including 
the

[[Page 58473]]

acquisition of curricular materials and technology--during the summer, 
and then reopen promptly in the fall, resulting in minimal, if any, 
disruption to students and parents.
    Changes: We have changed the language in paragraph (b) to define a 
restart model as one in which an LEA converts a school or closes and 
reopens a school under a charter school operator, a charter management 
organization (CMO), or an EMO that has been selected through a rigorous 
review process.

Defining Rigorous Review

    Comment: Several commenters supported the requirement in the SIG 
NPR that LEAs select a charter school operator, a CMO, or an EMO 
through a ``rigorous review process.'' In general, these commenters 
viewed this requirement as essential to ensuring the quality of a 
restart model. Commenters also asked for clarification of how such a 
review would be conducted, including guidance for SEAs and LEAs and 
opportunities for parent and community involvement in reviewing and 
selecting a restart school operator. One commenter raised a concern 
about how it would be possible to review rigorously a new charter 
school operator, CMO, or EMO.
    Discussion: We believe that SEAs and LEAs should have flexibility 
to develop their own review processes for charter school operators, 
CMOs, and EMOs, based both on local circumstances and on their 
experiences in authorizing charter schools. We will provide guidance 
and technical assistance in this area, but will leave final decisions 
on review requirements to SEAs and LEAs. We believe flexibility in 
defining ``rigorous review'' is warranted because of the wide variation 
in local need and community context as well as in the size, structure, 
and experience of charter school operators, CMOs, and EMOs.
    Changes: None.

Clarifying Restart Operator Definitions

    Comment: One commenter recommended that the Department provide a 
definition of CMO and EMO, while other commenters suggested changes or 
requested clarification of the definitions of CMO and EMO provided in 
the SIG NPR. One commenter recommended defining a CMO as an 
organization that ``operates or manages a school or schools'' rather 
than, as in the SIG NPR, ``operates charter schools.'' This commenter 
also urged the Department to define ``whole school operations'' as 
applied to the definition of EMO. Another commenter recommended that 
the Department include charter schools operated or managed by an LEA in 
the definition of CMO. One commenter also urged the Department to 
establish reporting requirements for CMOs and EMOs, including data on 
student achievement, the impact of reforms on student achievement, 
information on how CMOs and EMOs serve students with disabilities, and 
other accountability data. Finally, two commenters also suggested that 
the Department award funding directly to CMOs and EMOs to pay for 
planning, outreach, and training staff for a restart effort.
    Discussion: We included definitions of CMO and EMO in the preamble 
of the SIG NPR and are adding these definitions in the definition of 
restart model for clarification purposes. We agree that the definition 
of CMO should include organizations that operate or manage charter 
schools and have made this change to the CMO definition in this notice 
accordingly. Although a charter school may exist as part of an LEA, it 
is unlikely that the LEA would be responsible for operating or managing 
the charter school. Therefore, we have not expressly included LEAs in 
the definition of CMO. We are retaining the EMO definition from the SIG 
NPR, and believe the emphasis on ``whole-school operation'' is 
sufficient to distinguish EMOs from other providers that may help with 
certain specific aspects of school operation and management, but that 
do not assume full responsibility for the entire school, as is required 
by the restart model.
    The Department does not believe it is necessary to add new or 
additional reporting requirements for EMOs and CMOs, as their 
performance will be captured by the reporting metrics established in 
the final SIG notice. More specifically, SEAs and LEAs already must 
report on the intervention model used for each persistently lowest-
achieving school, as well as outcome data for those schools, including 
outcome data disaggregated by student subgroups. As for providing SIG 
funding directly to CMOs and EMOs, the SIG program is a State formula 
grant program, and the Department must allocate funds to States in 
accordance with the requirements of section 1003(g) of the ESEA. 
Moreover, the only eligible SIG subgrantees are LEAs.
    Changes: We have included the definitions of CMO and EMO in the 
definition of restart model. We have also modified the definition of 
CMO slightly to reflect the fact that a CMO may either operate or 
manage charter schools.

Flexibility Under the Restart Model

    Comment: Several commenters recommended greater flexibility for 
LEAs implementing the restart model, including options to create magnet 
schools or ``themed'' schools. Another commenter, claiming that few 
charter school operators, CMOs, or EMOs have experience in ``whole 
school takeover,'' recommended permitting a phase-in approach to 
charter schools that would allow a charter school operator to start 
with two or three early grades and gradually ``take over'' an entire 
school.
    Discussion: We believe that considerable flexibility regarding the 
type of school program offered is inherent in the restart model, which 
focuses on management and not on academic or curricular requirements. 
For example, restart operators would be free to create ``themed'' 
schools, so long as those schools permit enrollment, within the grades 
they serve, of any former student who wishes to attend. Additionally, 
LEAs have the flexibility to work with providers to develop the 
appropriate sequence and timetable for a restart partnership. Whether 
through ``phase-in'' models or complete conversions, the Department 
encourages SEAs and LEAs to take into account local context and need in 
making these decisions.
    Changes: None.
    Comment: Many commenters asked for clarification regarding various 
aspects of the restart model, including whether it includes conversion 
of existing schools, who would have authority over the operator of 
restart schools (e.g., LEA, SEA, independent governing board, or a 
State or local authorizer), and whether a group of individuals (e.g., 
teachers) could manage a restart school.
    Discussion: We have changed the definition of restart model to 
clarify that it includes conversion of an existing school and not just 
strategies involving closing and reopening a school. In particular, we 
believe that conversion approaches may permit implementation of a 
restart model with minimal disruption for students, parents, and 
communities. In general, an LEA would be responsible for authorizing or 
contracting with charter school operators, CMOs, or EMOs for 
implementation of a restart model. The precise form of this contract or 
agreement would be up to State or local authorities and could include 
each of the alternatives mentioned by the commenters. However, 
regardless of the lines of authority, autonomy and freedom to operate 
independently from the State or LEA are essential elements

[[Page 58474]]

of the restart model. A group of individuals, including teachers, would 
be eligible to manage a restart school so long as they met the local 
requirements of the rigorous review process included in the restart 
model.
    Changes: We have revised the first sentence of the definition of 
restart model to read as follows: ``A restart model is one in which an 
LEA converts a school or closes and reopens a school under a charter 
school operator, a charter management organization (CMO), or an 
education management organization (EMO) that has been selected through 
a rigorous review process.''
    Comment: Several commenters recommended that the Department include 
specific elements of the turnaround and transformation models in the 
restart model, including improved curricula and instruction, student 
supports, extended learning time, community involvement, and partnering 
with community-based organizations. Similarly, one commenter noted that 
a restart model might permit a school to reopen as a charter school 
while changing little inside the school and urged the Department to 
require restart schools to use a model of reform that has been proven 
effective or that includes evidence-based strategies. Another commenter 
urged the Department to encourage use of the restart model to better 
serve high-risk students and help dropouts reconnect to school.
    Discussion: We note that restart models could include nearly all of 
the specific reform elements identified under the turnaround and 
transformation models, but decline to require the use of any particular 
element or strategy. The restart model is specifically intended to give 
operators flexibility and freedom to implement their own reform plans 
and strategies. The required rigorous review process permits an LEA to 
examine those plans and strategies--and helps prevent an operator from 
assuming control of a school without a meaningful plan for turning it 
around--but should not involve mandating or otherwise requiring 
specific reform activities. However, the review process may require 
operators to demonstrate that their strategies are informed by research 
and other evidence of past success.
    Changes: None.
    Comment: One commenter recommended requiring the review process for 
CMOs and EMOs to include curriculum and staffing plans for meeting the 
needs of subgroups of students, including students with disabilities 
and limited English proficient students. Another commenter suggested 
that the review process include examining the extent to which a restart 
operator sought to ensure that restart schools would serve all former 
students by requiring States to collect data on the number of students 
from low-income families, students with disabilities, and limited 
English proficient students served by a restart school compared with 
the number of those students served by the school it replaced.
    Discussion: Restart operators, by definition, have almost complete 
freedom to develop and implement their own curricula and staffing 
plans, and the Department declines to place limits in this area in 
recognition of the core emphasis of the restart model on outcomes 
rather than inputs. The requirement to enroll any former student who 
wishes to attend the school will help to ensure that charter school 
operators, CMOs, and EMOs include serving all existing groups of 
students in their restart plans. Moreover, the effectiveness of these 
curricula and staff changes in meeting the needs of subgroups of 
students, including students with disabilities and limited English 
proficient students, will be measured by the metrics in the final SIG 
notice, which will include disaggregated achievement data by student 
subgroup. We encourage SEAs and LEAs to analyze these data to ensure 
that subgroups of students are properly included in restart schools and 
that their needs are addressed.
    Changes: None.
    Comment: A few commenters expressed concern that charter schools 
are not subject to the same oversight, regulation, or accountability as 
are regular public schools. Other commenters emphasized the importance, 
particularly in the case of charter school conversions, of ensuring 
autonomy, flexibility, and freedom from district rules and collective 
bargaining agreements, so that charter schools can implement their own 
cultures and practices.
    Discussion: The restart model is specifically intended to give 
providers freedom from the rules and regulations governing regular 
public schools, in recognition of the fact that, while such rules and 
regulations may be effective in requiring certain kinds of inputs, such 
as teacher qualification requirements or a uniform length of the school 
day or year, they have not been demonstrated to have a significant 
impact on educational outcomes. Moreover, many successful charter 
schools have achieved outstanding results by changing these inputs, 
such as by hiring non-traditional but skilled teachers and by extending 
the length of the school day. The Department believes that the outcome 
metrics established in the final SIG notice will ensure accountability 
for the performance of restart schools.
    Changes: None.
    Comment: One commenter expressed concern that LEAs could use the 
restart model to close an existing charter school that, while 
successful in raising student achievement, remained in school 
improvement status under section 1116 of the ESEA.
    Discussion: An existing charter school that is raising student 
achievement would be unlikely, under the requirements for identifying a 
State's persistently lowest-achieving schools, to be identified for 
school intervention, because those requirements include not only low 
levels of achievement, but also making little or no progress on 
improving those low levels of achievement in recent years. Moreover, 
this notice, as did the SIG NPR, provides flexibility for a school, 
such as a recently converted charter school that meets the requirements 
of the restart model, to use SIG funds to continue or complete reforms 
it began within the prior two years. On the other hand, it is possible, 
and in some cases appropriate, for an LEA to close a charter school 
that is not serving its students well and implement a new intervention 
model in the school.
    Changes: None.

School Closure

    Comment: A number of commenters expressed their general views 
regarding whether closing schools is an appropriate intervention for 
raising student achievement. Although no commenter advocated extensive 
use of this intervention, several acknowledged that school closure is 
sometimes necessary, particularly for schools with a long history of 
very low achievement, and noted that some States and LEAs have used 
this strategy successfully. Other commenters, however, expressed a 
number of logistical concerns with this intervention. Some noted that 
closing schools is often not feasible in rural areas in which the 
distance between schools is too great to make practical enrolling 
students from a closed school in higher-achieving schools. Others noted 
that many LEAs do not have multiple schools at the same grade level in 
which to enroll students from a closed school. Still others noted 
capacity issues that would prevent schools from accommodating 
additional students or the lack of high-achieving schools in which to 
enroll students from a closed school. One

[[Page 58475]]

commenter noted that this intervention would not be feasible on a large 
scale in large, urban LEAs with limited resources and substantial 
numbers of low-achieving students. Another commenter recommended that 
this intervention be limited to those LEAs with the capacity to enroll 
affected students in other, higher-achieving schools.
    Discussion: School closure is just one of four school intervention 
models from which an LEA may choose to turn around or close its 
persistently lowest-achieving schools, and the Department recognizes 
that it may not be appropriate or workable in all circumstances. To 
clarify this, we have revised the definition of school closure in this 
notice to clarify that this option is viable when there are re-
enrollment options in higher-achieving schools in the LEA that are 
within reasonable proximity to the closed school that can accommodate 
the students from the closed school. To make this option more viable, 
we have changed ``high-achieving schools'' to ``higher-achieving 
schools.''
    Changes: We have included the following clarifying language in the 
definition of school closure: ``School closure occurs when an LEA 
closes a school and enrolls the students who attended that school in 
other schools in the LEA that are higher achieving. These other schools 
should be within reasonable proximity to the closed school and may 
include, but are not limited to, charter schools or new schools for 
which achievement data are not yet available.''
    Comment: A number of commenters expressed the opinion that a school 
should never be closed if that option displaces students and disrupts 
communities. The commenters noted the importance of having a 
neighborhood school that serves as the cornerstone of a community. One 
commenter noted that, when students are moved to a school in a new 
neighborhood, parents often find it more difficult to feel a sense of 
belonging at the school or ownership of their child's education. 
Another commenter noted that school closings often anger parents, 
exacerbate overcrowding, increase safety and security concerns in 
neighboring schools, and place students who need specific supports in 
schools that may not be able to provide those supports. One commenter 
expressed concern that closing a school may not address the educational 
needs of specific students, which may be masked within a higher-
achieving school. Another commenter suggested the need for an 
``educational impact statement'' before a school is closed, and one 
suggested that an LEA have a detailed plan demonstrating how support 
would be provided to students and their families transitioning to 
different schools. Several commenters suggested that the final 
requirements provide for parent and community input before a school is 
closed.
    Discussion: The Department recognizes and understands that school 
closures, by definition, displace students and disrupt communities and 
are among the most difficult decisions faced by local authorities. 
However, each of the four school intervention models is predicated on 
the potentially positive impact of ``disruptive change'' on student 
educational opportunities, achievement, and other related outcomes. 
Schools targeted for closure under this notice will likely have served 
their communities poorly for many years, if not decades, as measured by 
such factors as student achievement, graduation rates, and college 
enrollment rates. Moreover, such schools also will likely have proven 
impervious to positive change despite years of identification for 
improvement, corrective action, or restructuring under the ESEA as well 
as other previous reform efforts. The Department believes that, when 
such schools prove unwilling or unable to change, closure must be 
considered. Many communities have experience in closing, consolidating, 
or otherwise changing the structure of their existing schools and have 
their own processes and procedures for obtaining public input and 
approval for such changes, including assessment of the impact on 
students, families, neighborhoods, other schools, and transportation 
requirements, as well as for developing plans to facilitate smooth 
transitions for everyone involved. Although the Department encourages 
LEAs and SEAs to involve students, parents, educators, the community, 
and other stakeholders in the process, we decline to add any additional 
requirements in this area of appropriate local discretion.
    To address the disruptiveness school closure may cause to a 
community, we have modified the definition of school closure, as noted 
in response to the prior comment, to clarify that closure should entail 
re-enrolling students from the closed school in other schools in the 
LEA that are within reasonable proximity to the closed school. Finally, 
we note that school closure is just one of the four school intervention 
models available under the terms of this notice. LEAs and communities 
that wish to preserve a neighborhood school may do so by implementing a 
turnaround, restart, or transformation model.
    Changes: None.
    Comment: Several commenters recommended that a school not be closed 
unless an LEA opens a new school in its place. One commenter 
specifically suggested closing a school in phases and reopening it as a 
new school. Under this concept, an LEA would permit both students and 
staff who choose to do so to remain in the school but the school would 
enroll no new students. At the same time, according to the commenter, 
other schools would be better prepared to absorb students who wish to 
transfer, logistical and facility issues would be minimized, and the 
new school would have adequate time to recruit and train high-quality 
staff and develop its instructional program.
    Discussion: The Department has revised the language in the 
definition of school closure to recognize the need to have available 
options for accommodating the educational needs of the students in a 
closed school, but does not believe it is necessary to require an LEA 
to open a new school in place of the closed school. Many LEAs 
participating in the SIG program have under-utilized or under-enrolled 
schools that may readily accommodate students from a closed school; 
requiring such LEAs to open new schools simply does not make sense. 
However, an LEA that chooses to reopen a new school would be free to do 
so, either on its own or as part of a turnaround or restart model.
    Changes: None.
    Comment: One commenter suggested that the Department provide 
incentives for the development of successful charter schools in the 
areas in which schools are closed. Specifically, the commenter 
recommended that the Department require that an LEA that partners with 
a CMO in order to serve the area in which the LEA is closing schools 
receive a priority for SIG funds.
    Discussion: SIG funds are intended to provide support to LEAs for 
school improvement efforts targeted primarily at the persistently 
lowest-achieving schools in a State, and not at providing incentives 
for the creation of new schools, charter or otherwise, that serve the 
same general attendance area. However, the restart model (as defined in 
this notice) may be used by LEAs in situations where the goal is to 
replace a persistently lowest-achieving school with a charter school.
    Changes: None.
    Comment: One commenter suggested that, in highlighting which 
schools may be available to enroll students from a

[[Page 58476]]

closed school, the Department specifically mention magnet schools along 
with charter schools.
    Discussion: Decisions about the schools to which students from 
closed schools may transfer are best left to the LEAs selecting the 
school closure option. The language in the definition of school 
closure, as in the SIG NPR, specifically mentions charter schools only 
because not all available charter schools might be operated by the LEA 
that is closing a neighborhood public school and, thus, might not be 
initially included in an LEA's plan for transferring students from the 
closed school. This is not a concern for magnet schools and, thus, the 
Department declines to make the requested change.
    Changes: None.
    Comment: One commenter recommended that the Department require 
that, before an LEA may enroll students from a closed school in another 
school, the LEA require a prospective receiving school, including a 
charter school, to demonstrate a record of effectiveness in educating 
its existing students and the capacity to integrate and educate new 
students from closed schools. The commenter emphasized the importance 
of this latter point, noting that merely because a school is high-
achieving does not mean that it is equipped to help additional students 
from the lowest-achieving schools succeed while maintaining the quality 
of its current educational program.
    Discussion: The Department believes that the requirement to enroll 
students from a closed school in a higher-achieving school responds to 
the concerns of this commenter. The Department believes that such 
higher-achieving schools are likely in nearly all circumstances, to 
provide a better education for any new students than was available in 
the closed school.
    Changes: We have added language to the definition of school closure 
clarifying that school closure entails re-enrolling students from the 
closed school in other schools in the LEA that are higher achieving. We 
have also added clarifying language that such schools may be new 
schools for which achievement data are not available.
    Comment: Several commenters questioned how SIG funds may be used in 
closing a school. One commenter noted the importance of gaining 
community input and that the costs for closing a school may include 
costs associated with conducting parent and community meetings. Another 
commenter recommended that allowable costs include academic supports 
for struggling students who are enrolled in new schools.
    Discussion: LEAs may use SIG funds to pay reasonable and necessary 
costs related to closing a persistently lowest-achieving school, 
including the costs associated with parent and community outreach. 
However, SIG funds may not be used to serve students, struggling or 
otherwise, in the schools to which they transfer, unless those schools 
are Title I schools. The Department will include additional examples of 
permissible uses of SIG funds in closing a school in guidance 
accompanying the application package for SIG funds.
    Changes: None.

Transformation Model

General Comments

    Comment: Many commenters expressed strong support for the 
transformation model. One commenter, for example, described it as ``a 
balanced, comprehensive approach,'' and another described it as ``a 
supportive and constructive approach.'' Still another commenter stated 
that it ``provides the greatest hope for promoting genuine school 
improvement.'' Several commenters noted that the transformation model 
would be, in reality, the only choice among the four proposed 
interventions, especially for many rural school districts.
    A few commenters responded that the transformation model would 
still not enable some communities, particularly those with difficult 
demographics, to make adequate yearly progress. Other commenters 
worried that, if not monitored carefully, the transformation model 
would become like the ``other'' restructuring option under section 
1116(b)(8)(B)(v) of the ESEA, perceived as the easiest (but least 
meaningful) way to intervene in a struggling school. One of these 
commenters recommended adding strong language to make clear that the 
transformation model is not an incremental approach and that, except in 
the area of changing staff, the model is as rigorous as the turnaround 
model.
    Discussion: We appreciate the commenters' support. We believe the 
transformation model holds tremendous promise for reforming 
persistently lowest-achieving schools by developing and increasing 
teacher and school leader effectiveness, implementing comprehensive 
instructional reform strategies, increasing learning time and creating 
community-oriented schools, and providing operating flexibility and 
sustained support. Assuming the activities that support these 
components are implemented with fidelity, the transformation model 
represents a rigorous and wholesale approach to reforming a struggling 
school, unlike the manner in which the ``other'' restructuring option 
in section 1116 of the ESEA has often been implemented.
    Changes: To strengthen the transformation model, we have made a 
number of changes that we discuss in the following paragraphs in our 
responses to specific comments.
    Comment: One commenter recommended affording greater flexibility to 
LEAs in implementing the transformation model by allowing them to 
choose which activities are ``required'' and which are ``permissible'' 
within the four components. The commenter noted that LEAs with 
persistently lowest-achieving schools may not have the teacher or 
leader capacity or system to support, monitor, and sustain reforms 
across all of their schools. The commenter advocated for creating 
systems at the district level that enable LEAs to provide support at 
each school.
    Discussion: We decline to make the requested changes. We have 
carefully reviewed the required activities within the four components 
of the transformation model and have concluded that each is necessary 
to ensure the rigor and effectiveness of the model; therefore, we 
continue to require each one. An LEA, of course, may implement any or 
all of the permissible activities as well as other activities not 
described in this notice.
    In anticipation of receiving unprecedented amounts of SIG funds, 
SEAs and LEAs should begin now to plan for how they can use those funds 
most effectively by putting in place the systems and conditions 
necessary to support reform in their persistently lowest-achieving 
schools. Despite the best preparation, however, we know that not every 
LEA with persistently lowest-achieving schools has the capacity to 
implement one of the four interventions in this notice in each such 
school. As indicated in the SIG NPR, therefore, an LEA that lacks the 
capacity to implement an intervention in each persistently lowest-
achieving school may apply to the SEA to implement an intervention in 
just some of those schools.
    Changes: None.
    Comment: One commenter recommended adding ``graduation rates,'' 
rated equally with test scores, to assess student achievement in 
evaluating staff, ensuring that a school's curriculum is implemented 
with fidelity, and providing operating flexibility. The commenter also 
recommended making increasing graduation rates a required activity.
    Discussion: We agree with the commenter that increasing high-school

[[Page 58477]]

graduation rates is vital to improving student achievement, 
particularly in our Nation's ``dropout factories.'' We are, 
accordingly, adding increasing high school graduation rates in three 
provisions of the transformation model to make clear that it is also a 
goal of the interventions in this notice. We are also making a 
corresponding change in the turnaround model. In addition, we are 
defining ``persistently lowest-achieving schools'' to include high 
schools that have had a graduation rate below 60 percent over a number 
of years. Through these changes, we hope to identify high schools with 
low graduation rates that would implement one of the interventions in 
this notice.
    Changes: We have added increasing high school graduation rates in 
three provisions of the transformation model: paragraphs 
(d)(1)(i)(B)(1); (d)(1)(i)(C); and (d)(4)(i)(A). We also made a 
corresponding change to the turnaround model in paragraph (a)(1)(i). In 
addition, we have included high schools that have had a graduation rate 
below 60 percent over a number of years in the definition of 
persistently lowest-achieving schools.
    Comment: One commenter recommended that the Department require an 
LEA to set up an organizational entity within the LEA to be responsible 
and held accountable for rapid improvement in student achievement in 
schools implementing the transformation model in order to ``expedite 
the clearing of bureaucratic underbrush'' that can impede the model's 
effectiveness.
    Discussion: Although nothing in this notice would preclude an LEA 
from establishing an organizational entity responsible for ensuring 
rapid improvement in student achievement in schools implementing the 
transformation model, we decline to require the establishment of such 
an entity. Evidence of an LEA's commitment to support its schools in 
carrying out the required elements of the transformation model is a 
factor that an SEA must consider in evaluating the LEA's application 
for SIG funds.
    Changes: None.

Developing and Increasing Teacher and School Leader Effectiveness

    Comment: A number of commenters supported the emphasis in the 
transformation model on strong principals and teachers, noting that 
they are critical to transforming a low-achieving school. Commenters 
cited specific provisions that they supported, such as ongoing, high-
quality job-embedded professional development; strategies to recruit, 
place, and retain effective staff; increasing rigor through, for 
example, early-college high schools; extending learning time; 
emphasizing community-oriented schools; increased operating 
flexibility; and sustained support from the LEA and SEA.
    Discussion: The Secretary appreciates the commenters' support.
    Changes: None.
    Comment: One commenter suggested adding the word ``ensuring'' in 
the heading of the component of the transformation model that requires 
developing teacher and school leader effectiveness. Another suggested 
changing the heading to ``providing teachers and school leaders with 
the resources and tools needed to be effective.''
    Discussion: We decline to make these changes. First, we do not 
believe that a school can ensure teacher and school leader 
effectiveness. We do believe, however, that a school can take steps to 
improve teacher and leader effectiveness. Second, we note that eligible 
schools in LEAs that receive SIG funds--all of which are among the 
lowest-achieving schools in a State--will have very large amounts of 
resources to implement the transformation model or one of the other 
school intervention models. Accordingly, we do not believe lack of 
resources will be a barrier for reforming the persistently lowest-
achieving schools in a State. Moreover, there is a significant 
requirement that an LEA provide ongoing, high-quality, job-embedded 
professional development for all staff in a school implementing the 
transformation model. Principals, teachers, and school leaders, 
therefore, should have sufficient support to do their jobs.
    Changes: We have revised the heading in paragraph (d)(1) to read: 
``Developing and improving teacher and school leader effectiveness.''
    Comment: Many commenters, many of whom were principals or 
represented principals, opposed the requirement to replace the 
principal. A number of commenters commented that such a decision should 
be made locally, based on local data and circumstances in individual 
schools, rather than being mandated by the Federal Government. One 
commenter, although acknowledging the importance of effective school 
leadership, asserted that a school's underperformance should not 
necessarily be blamed on the principal. The commenter cited other 
salient factors, such as whether the principal has the authority needed 
to turn a school around or whether the principal is laying a foundation 
for improvements not yet reflected in test scores. One commenter 
suggested that a principal not be removed until the principal's 
performance has been reviewed. Others suggested that, rather than 
replacing the principal immediately, the requirements permit an LEA to 
offer comprehensive support and leadership training for school leaders 
and other staff to assist them in making the significant changes needed 
to transform a school. Several commenters suggested removing the 
principal unless the person commits to and is held accountable for a 
turnaround plan that requires, for example, working with a partner 
management organization or other entity skilled in turning around 
struggling schools. Another commenter suggested permitting flexibility 
with respect to removing the principal in cases warranted by, for 
example, the size and geography of a school or LEA, the cause of the 
academic failure, the specific solutions being sought, or other 
barriers to removal.
    Discussion: We refer readers to the earlier section of these 
comments and responses titled ``Principal and Staff Replacement'' in 
which we respond to similar public comments about the principal 
replacement requirement under the turnaround model.
    Changes: None.
    Comment: One commenter recommended a three-pronged approach to 
defining principal effectiveness: evidence of improved student 
achievement; changes in the number and percentage of teachers rated as 
effective and highly effective; and assessment of a principal's highest 
priority actions and practices.
    Discussion: Generally, the Department agrees that multiple 
measures, including the use of student achievement data, should be used 
to evaluate principal effectiveness. Accordingly, we have revised 
proposed section I.A.2.d.i.A.1 in the SIG NPR (new paragraph 
(d)(1)(i)(B)(1) to allow an LEA to use, in additional to data on 
student growth, observation-based assessments and ongoing collections 
of professional practice that reflect student achievement and increased 
high-school graduation rates to evaluate principal effectiveness.
    Changes: We have modified paragraph (d)(1)(i)(B)(1) regarding 
evaluation systems for teachers and principals to require that those 
systems take into account student growth data as a significant factor 
as well as other factors ``such as multiple observation-based 
assessments of performance and ongoing collections of professional 
practice reflective of student achievement and increased high-school 
graduation rates.''

[[Page 58478]]

    Comment: Several commenters cited the shortage of principals, 
particularly in rural areas, as a reason to eliminate the requirement 
to remove the principal in a school using the transformation model. One 
commenter suggested hiring a ``turnaround leader'' or contracting with 
an external lead partner instead of replacing the principal.
    Discussion: We refer readers to the earlier section of these 
comments and responses titled ``Principal and Staff Replacement'' where 
we respond to public comments about the principal replacement 
requirement under the turnaround model.
    Changes: None.
    Comment: A number of commenters suggested that a principal who has 
been recently hired to turn around a school should not be removed.
    Discussion: The commenters might have overlooked the fact that 
proposed section I.B.1 in the SIG NPR allowed schools that have 
``implemented, in whole or in part within the last two years, an 
intervention that meets the requirements of the turnaround, restart, or 
transformation models'' to ``continue or complete the intervention 
being implemented.'' Thus, a recently hired principal who was hired to 
implement a school intervention model that meets some or all of the 
elements of one of the interventions in this notice would not have to 
be replaced for purposes of a transformation model. We have retained 
this flexibility in this notice.
    Changes: None.
    Comment: Many commenters reacted to the requirement in the SIG NPR 
to use evaluations that are based in significant measure on student 
growth to improve teachers' and school leaders' performance. A few 
commenters supported the requirement; most opposed it for a number of 
reasons. Many commenters objected specifically to assessing teacher 
effectiveness using testing instruments not designed for that purpose. 
One commenter noted that standardized assessments are designed to 
measure students' ready retrieval of knowledge and do not accurately 
attribute student learning to particular lessons, pedagogical 
strategies, or individual teachers. In addition, the commenter noted 
that such assessments do not measure qualities like student motivation, 
intellectual readiness, persistence, creativity, or the ability to 
apply knowledge and work productively with others. One commenter 
asserted that State assessments are generally of low quality and 
measure a narrow range of student learning. The commenter also noted 
that assessments do not acknowledge the contributions (or lack thereof) 
of others, such as prior teachers, towards student achievement. Two 
commenters argued that State assessments do not provide information 
about the conditions in which learning occurs and over which a teacher 
has no control, such as class size, student demographics, or 
instructional resources. One commenter asserted that State assessments 
fail to capture academic growth with respect to students with 
disabilities. A number of commenters proposed other academic and 
nonacademic measures for evaluating teachers and school leaders, such 
as standards-based evaluations of practice that include such criteria 
as observations of lesson preparation, content, and delivery; 
innovation in teaching practices; analyses of student work and other 
measures of student learning, such as writing samples, grades, goals in 
individualized education programs for students with disabilities, and 
``capstone'' projects such as end-of-course research papers; assessment 
of commitment and ability to use feedback and data to learn and improve 
practices; one-on-one teaching; staff leadership and mentoring skills; 
conflict resolution skills; crisis management experience; extra-
curricular roles and contributions to a school; and relationships with 
parents and the community.
    Discussion: We respect and agree with the commenters' concerns that 
student achievement data alone should not be used as the sole means to 
evaluate teachers and principals. We must develop and support better 
measures that take into account student achievement and more accurately 
measure teacher and principal performance. Accordingly, we have revised 
the transformation model's evaluation systems provision to require that 
these systems take into account student growth data as a significant 
factor, but also include other factors ``such as multiple observation-
based assessments of performance and ongoing collections of 
professional practice reflective of student achievement and increased 
high-school graduation rates.'' We have also clarified that those 
systems must be rigorous, transparent, and equitable and that they must 
be designed and developed with teacher and principal involvement.
    Nonetheless, it is important to note that the Secretary believes 
that student achievement data must be included as a significant factor 
in evaluations of teacher and principal effectiveness. We are confident 
that the legitimate concerns of the commenters regarding use of student 
data can be addressed.
    Changes: We have modified paragraph (d)(1)(i)(B) regarding 
evaluation systems for teachers and principals in several respects. 
First, we modified paragraph (d)(1)(i)(B) to require that evaluation 
systems be rigorous, transparent, and equitable. Second, we modified 
paragraph (d)(1)(i)(B)(1) to require that those systems take into 
account student growth data as a significant factor but also include 
other factors ``such as multiple observation-based assessments of 
performance and ongoing collections of professional practice reflective 
of student achievement and increased high school graduation rates.'' 
Third, we added paragraph (d)(1)(i)(B)(2) to require that evaluation 
systems be designed and developed with teacher and principal 
involvement.
    Comment: A number of commenters raised issues related to collective 
bargaining and the transformation model. Several commenters objected to 
the perceived requirement to establish a performance pay plan based on 
student outcomes, noting that collective bargaining agreements and, in 
some cases, State laws often prohibit such a plan. Two others noted 
that, because union contracts limit a principal's control over 
staffing, principals should not be held accountable for school 
performance results. At least one commenter expressed concern that 
these collective bargaining barriers could preclude implementation of 
the transformation model.
    Discussion: In general, we refer readers to the earlier section of 
these comments and responses titled ``Principal and Staff Replacement'' 
where we respond to similar public comments regarding collective 
bargaining as it relates to the turnaround model. In addition, we note 
that the transformation model does not require that an LEA establish a 
performance pay plan for teachers or principals. Rather, an LEA must 
identify and reward school leaders, teachers, and other staff who, in 
implementing the transformation model, have increased student 
achievement and graduation rates. One way of meeting this requirement 
would be through performance pay. An LEA has the flexibility to devise 
other means that meet this requirement.
    Changes: None.
    Comment: One commenter, responding to the proposed requirement to 
remove staff who fail to contribute to raising student achievement, 
recommended that this provision be deleted. The commenter noted that 
this provision would make it very difficult to attract the most highly 
qualified teachers and principals to the persistently lowest-achieving 
schools. The commenter suggested that extensive

[[Page 58479]]

professional development, rather than removal, be required for staff in 
schools in which achievement does not improve.
    Discussion: In general, we refer readers to the section of these 
comments and responses titled ``Principal and Staff Replacement'' where 
we respond to similar comments regarding removal of the staff 
replacement requirement under the turnaround model.
    Changes: We have modified paragraph (d)(1)(i)(C) regarding removing 
staff who, in implementing a transformation model, have not contributed 
to increased student achievement and high school graduation rates to 
make clear that removal should only occur after an individual has had 
multiple opportunities to improve his or her professional practice and 
has still not contributed to increased student achievement and 
increased high school graduation rates.
    Comment: Several commenters objected to the Secretary's proposal to 
require an LEA to make ``high-stakes'' tenure and compensation 
decisions through which the LEA would ``identify and reward school 
leaders, teachers, and other staff who improve student achievement 
outcomes and identify and remove those who do not.'' The commenters 
thought this standard was too imprecise. They noted that teacher 
compensation, tenure, and dismissal are, for the most part, governed by 
State laws and/or collective bargaining agreements that cannot be 
simply overturned by a Federal grant program. One of the commenters 
suggested that this provision be modified by adding, at the end, the 
phrase ``in full accordance with local and State laws, including 
collective bargaining agreements.''
    Discussion: In general, we refer readers to the section of these 
comments and responses titled ``Principal and Staff Replacement'' where 
we respond to similar comments regarding collective bargaining issues 
as they relate to the turnaround model. In addition, we note that no 
LEA is required to apply for a School Improvement Grant. Those that do 
will receive significant resources to support their efforts to reform 
their most struggling schools, but they also must have the ability to 
implement the required components of whichever intervention they 
choose. Accordingly, we decline to make the recommended changes.
    Changes: None.
    Comment: A number of commenters provided additional examples of 
what professional development of staff under the transformation model 
should entail, such as: addressing the needs of students with 
disabilities and limited English proficient students; creating 
professional learning communities within a school; providing mentoring; 
involving parents in their child's education, especially parents of 
limited English proficient students and immigrant children; 
understanding and using data and assessments to improve and personalize 
classroom practice; and implementing adolescent literacy and 
mathematics initiatives.
    Discussion: We appreciate the many excellent suggestions for 
additional areas on which professional development should focus. With 
one exception, we decline to add examples. We could never list all 
relevant topics for strong professional development, which must be 
tailored to the needs of staff in particular schools, and we would not 
want to suggest that topics not listed were, thus, less worthy of 
addressing.
    Changes: We have added a permissible activity in paragraph 
(d)(2)(ii)(C) under ``comprehensive instructional reform strategies'' 
to highlight the need for additional supports and professional 
development for teachers and principals in implementing effective 
strategies to educate students with disabilities in the least 
restrictive environment and to ensure that limited English proficient 
students acquire language skills necessary to master academic content.
    Comment: One commenter noted that the requirement to provide staff 
with ongoing, high-quality, job-embedded professional development was 
silent with respect to the impact of professional development on 
instruction. The commenter pointed to an apparent inconsistency with 
the emphasis in the permissible activity that suggested that LEAs be 
required to institute a system for measuring changes in instructional 
practices resulting from professional development. Because the 
commenter values professional development designed to improve 
instruction, the commenter recommended that the Secretary require a 
school to have a system for measuring changes in instructional 
practices resulting from professional development in order to evaluate 
its efficacy.
    Discussion: We believe that the requirement to provide ongoing, 
high-quality, job-embedded professional development to staff in a 
school is clearly tied to improving instruction in multiple ways. 
First, the requirement that professional development be ``job-
embedded'' connotes a direct connection between a teacher's work in the 
classroom and the professional development the teacher receives. 
Second, the examples of topics for professional development, such as 
subject-specific pedagogy and differentiated instruction, are directly 
related to improving the instruction a teacher provides. Third, 
professional development must be aligned with the school's 
comprehensive instructional program. Finally, the articulated purpose 
of professional development in paragraph (d)(1)(i)(D) of the 
transformation model is to ensure that a teacher is ``equipped to 
facilitate effective teaching and learning'' and has the ``capacity to 
successfully implement school reform strategies.'' Although we believe 
that instituting a system for measuring changes in instructional 
practices resulting from professional development can be valuable, we 
decline to require it as part of this program. We believe that the 
specificity in the nature of the professional development required for 
a transformation model is sufficient to ensure that it, in fact, 
results in improved instruction.
    Changes: None.
    Comment: One commenter recommended that the Department add a 
requirement that professional development be designed to ensure that 
staff of a school using the transformation model can work effectively 
with families and community partners. The commenter reasoned that, 
given the emphasis on working with families and community partners to 
improve the academic achievement of students in a school, staff must 
know how to work with them.
    Discussion: We decline to make the suggested change. We agree with 
the commenter that family and community involvement in a school is 
critical to the school's ultimate success and have included, as both 
required and permissible activities, a variety of provisions to address 
this important need. We would expect professional development to 
include appropriate training to ensure, as the commenter suggests, that 
staff are well equipped to facilitate family and community involvement. 
We do not believe, however, that we should try to expressly highlight 
each and every appropriate topic of high-quality professional 
development in this notice.
    Changes: None.
    Comment: One commenter suggested that financial incentives are not 
necessarily the most motivating factor in retaining high-quality staff. 
Rather, the commenter stated that the culture of a school--i.e., 
quality relationships with other teachers, the school climate, the 
leadership of the principal, and the potential for professional 
growth--is often a greater motivator.

[[Page 58480]]

    Discussion: We agree that financial incentives are not the only 
motivating factor in attracting staff to a school or retaining them in 
the school. We hope that changes in the culture of a school that result 
from implementing the interventions established in this notice play a 
large role in attracting, placing, and retaining high-quality staff. As 
a result, in both the transformation and turnaround models, we have 
provided examples of several strategies to recruit, place, and retain 
high-quality staff.
    Changes: We have added examples of strategies designed to recruit, 
place, and retain staff, including ``financial incentives, increased 
opportunities for promotion and career growth, and more flexible work 
conditions'' in paragraphs (d)(1)(i)(E), with respect to the 
transformation model, and (a)(1)(iii), with respect to the turnaround 
model. We have also made clear that those strategies must be designed 
to recruit, place, and retain staff who have the skills necessary to 
meet the needs of the students in the schools implementing a 
transformation or turnaround model, respectively.
    Comment: Several commenters supported the concept of ``mutual 
consent''--that is, ensuring that a school is not required to accept a 
teacher without the mutual consent of the teacher and the principal, 
regardless of the teacher's seniority. One commenter recommended making 
``mutual consent'' a required component of both the turnaround model 
and the transformation model. Other commenters, however, opposed any 
mention of ``mutual consent,'' even as a permissible activity. One 
asserted that the concept conflicts with the provision in section 
1116(d) of the ESEA that precludes interventions in Title I schools 
from affecting the rights, remedies, and procedures afforded school 
employees under Federal, State, or local laws or under the terms of 
collective bargaining agreements, memoranda of understanding, or other 
agreements between employees and their employers.
    Discussion: Like several commenters, the Secretary supports and 
encourages the use of mutual consent. The Secretary considers mutual 
consent to be a positive example of LEAs' partnering with unions to 
bring change to the Nation's persistently lowest-achieving schools. 
That said, we decline to require mutual consent as a part of the 
transformation model because mutual consent policies and other similar 
agreements are best resolved at the State and local levels in the 
context of existing collective bargaining agreements.
    Changes: None.
    Comment: One commenter recommended that the Secretary add a 
requirement that, in the event budget cuts occur, a principal be 
allowed to lay off teachers on the basis of performance rather than 
seniority. The commenter noted that this provision could be an 
important lever for obtaining positive changes to collective bargaining 
agreements that would help low-achieving schools attract and retain 
effective staff.
    Discussion: We decline to make the suggested change. Although we 
support the need to modify collective bargaining agreements if they 
impede efforts to attract and retain qualified staff in the 
persistently lowest-achieving schools, we do not believe we can or 
should prescribe the specific terms of those agreements.
    Changes: None.

Comprehensive Instructional Reform Strategies

    Comment: Several commenters suggested that the Department revise 
the comprehensive instructional reform component of the transformation 
model by modifying or expanding the provision requiring the use of 
individualized student data to inform and differentiate instruction. 
One commenter suggested clarifying that individualized student data are 
to be used to meet students' academic needs while another commenter 
suggested clarifying that the data should be used to address the needs 
of ``individual'' students. Other commenters suggested expanding this 
provision to include non-academic data such as chronic absenteeism, 
truancy, health (vision, hearing, dental, and access to primary care), 
safety, family engagement and well-being, and housing. The commenter 
suggested that these data be used, in partnership with parents and 
other community partners, to address other student needs.
    Discussion: The purpose of this section of the transformation model 
is to improve instruction, and we agree that adding the word 
``academic'' is a helpful clarification. Although we also agree that 
non-academic data can play an important role in identifying other 
student needs that can affect learning, local school administrators, 
working with parents and community partners, are in the best position 
to determine how to address those needs. Therefore, we decline to add a 
requirement that a school examine non-academic data.
    Changes: We have added the word ``academic'' in paragraph 
(d)(2)(i)(B) to clarify that the continuous use of student data to 
inform and differentiate instruction must be promoted to meet the 
academic needs of individual students. We made a corresponding change 
in paragraph (a)(1)(vii) regarding the turnaround model.
    Comment: One commenter noted that requiring instructional programs 
to be ``evidence-based'' instead of ``research-based'' would enable the 
use of programs for which there is accumulated evidence that does not 
meet the current ESEA definition of ``scientifically based research.''
    Discussion: We agree with the commenter that an LEA should only 
implement instructional programs for which there is a sufficient body 
of evidence supporting improved student achievement. We do not believe 
a change is necessary, however, because we do not use the term 
``scientifically based research'' and, therefore, do not invoke the 
stringent requirements in section 9101(37) of the ESEA.
    Changes: None.
    Comment: One commenter recommended that the Department add a 
provision that would require a school to identify ``off-track and out-
of-school youth, through analysis and segmentation of student data,'' 
and develop and implement education options to put them back on track 
to graduate. The commenter stated that, once students are off track to 
graduating on time, their likelihood of graduating is often as low as 
20 percent. Moreover, in the 2,000 high schools in the Nation with 
four-year graduation rates of 60 percent or less, up to 80 percent of 
ninth graders are significantly behind in skills or credits. Several 
other commenters suggested including stronger support for re-enrolling 
youth who have left high school as a critical part of increasing 
graduation rates.
    Discussion: We agree that programs and strategies designed to re-
engage youth who have dropped out of high school without receiving a 
diploma are necessary in increasing graduation rates. Accordingly, we 
are modifying the notice to address this need. We also hope that an 
LEA's extension or restructuring of the school day to add time for 
strategies such as advisory periods to build relationships between 
students, faculty, and other staff will help to identify students who 
are struggling and to secure for them the necessary supports 
sufficiently early to prevent their dropping out of school. Finally, as 
noted earlier, we have added references to increased high school 
graduation rates in four provisions to make clear that implementation 
of the models in high schools must focus on increasing graduation rates 
as well as improved student achievement.

[[Page 58481]]

    Changes: We have modified paragraph (d)(2)(ii)(E)(3) to add re-
engagement strategies as an example of a way to increase high school 
graduation rates. We have also added paragraph (d)(2)(ii)(E)(4) 
suggesting that permissible comprehensive instructional reform 
strategies may include establishing early-warning systems to identify 
students who may be at risk of failing to achieve to high standards or 
graduate.
    Comment: A number of commenters suggested that the Department 
include additional required or permissible activities for carrying out 
comprehensive instructional reform strategies. Specifically, two 
commenters recommended that the Department require schools to conduct 
periodic reviews so as to ensure that the curriculum is being 
implemented with fidelity (rather than merely permitting this activity) 
and improve school library programs. Other commenters suggested 
expanding the permissible activities in secondary schools to include 
learning opportunities that reflect the context of the community in 
which the school is located, such as service learning, place-based 
education, and civic and environmental education. The commenters also 
recommended clarifying that improving students' transition from middle 
to high schools should include family outreach and parent education. 
Another commenter suggested that the Department expand the list of 
permissible activities in elementary schools to include providing 
opportunities for students to attend foreign language immersion 
programs.
    Discussion: The Secretary agrees that there are any number of 
important activities that would be appropriate to address in a 
transformation model. As described in this notice, the transformation 
model, by necessity, focuses on several broad strategies. However, 
nothing precludes local school leaders from expanding the model as 
necessary to address other factors needed to respond to the specific 
needs of students in the school.
    Changes: We have included in this notice a definition of increased 
learning time that would permit many, if not all, of the commenters' 
suggestions. For example, that definition makes clear that a school may 
increase time to teach core academic subjects, including, for example, 
civics and foreign languages, and to provide enrichment activities such 
as service learning and experiential and work-based learning 
opportunities.
    Comment: One commenter recommended that the Department add the 
implementation of technology-based solutions to the list of permissible 
activities, while another commenter recommended that the Department add 
online instructional services offered by a for-profit or non-profit 
entity as an example of a comprehensive, research-based instructional 
program.
    Discussion: The Secretary agrees that technology can be an 
important tool for supporting instruction, and we are adding as a 
permissible activity the suggestion to use and integrate technology-
based supports and interventions as part of a school's instructional 
program. Although online instructional programs might be part of a 
school's system of technology-based supports, we decline to mention it 
specifically. Online instructional programs, if research-based, are one 
of many ways to meet the needs of students in struggling schools, 
particularly to provide courses or programs that schools in rural or 
remote areas cannot otherwise provide. We cannot mention in this 
notice, however, each and every type of instructional program.
    Changes: We have added as a permissible activity in paragraph 
(d)(2)(ii)(D) using and integrating technology-based supports and 
interventions as part of a school's instructional program.
    Comment: One commenter recommended that the Department add to the 
transformation model the strategy to reorganize the school with a new 
purpose and structure it as a magnet school, a thematic school, or a 
school-community partnership.
    Discussion: We decline to include this change in the transformation 
model, a model that uses the existing staff in a school and who would 
likely not have the expertise to implement an instructional program 
with a whole new purpose.
    Changes: None. However, we have clarified in paragraph (a)(2)(ii) 
that a turnaround model may include a new school model (e.g., themed, 
dual language academy).

Increasing Learning Time and Creating Community-Oriented Schools

    Comment: Several commenters expressed support overall and for 
various activities of the ``Increasing learning time and creating 
community-oriented schools'' component of the transformation model, 
including the references to school climate, internships, and community 
service.
    Discussion: We appreciate the commenters' support. We are including 
some of these activities in the definition of increased learning time 
that also applies to the Stabilization Phase II and Race to the Top 
programs, rather than listing them as specific elements of the 
``increasing learning time and creating community-oriented schools'' 
component. They have no less importance, however.
    Changes: We have included in the notice a definition of increased 
learning time that includes opportunities for enrichment activities for 
students, such as service learning and community service.
    Comment: Several commenters suggested that the Department highlight 
the importance of certain activities by revising the heading of this 
component. For example, one commenter suggested revising the heading to 
emphasize family involvement while another commenter suggested revising 
it to specifically reference students' social and emotional needs. A 
third commenter suggested expanding the title to include ``using 
research-based methods to deliver comprehensive services to students.''
    Discussion: We decline to make these changes. Although we embrace 
the need to address not just the academic needs of students but also 
how their social and emotional needs affect their learning and to 
emphasize the importance of family involvement, we believe it is 
preferable to keep the heading for this component more general. The 
headings for each of the components in the transformation model are 
deliberately broad so as to cover a number of important activities, and 
the fact that a specific activity is not in a heading is not a 
reflection of that activity's importance. We believe the list of 
permissible activities illustrates various ways in which a school can 
address students' social and emotional needs and involve families in 
their child's education.
    Changes: None.
    Comment: Several commenters suggested that the Department highlight 
the importance of certain activities by making them required. For 
example, some commenters recommended expanding the required activities 
to include a comprehensive guidance curriculum delivered by a school 
counselor who is certified by the State department of education; 
partnering with parents, faith-based and community-based organizations, 
and others to provide comprehensive student services; more time for 
social and emotional learning; and improving school climate. Another 
commenter recommended requiring that the transformation model include 
the components of the Comprehensive School Reform Demonstration 
program.

[[Page 58482]]

    Other commenters suggested adding references to high school study-
abroad programs as an example of a student enrichment activity and 
activities designed to reduce out-of-school suspensions and expulsions 
as a strategy for addressing school climate.
    Discussion: As we noted earlier, we agree that there are any number 
of important activities that would be appropriate to address in a 
transformation model. As described in this notice, the transformation 
model, by necessity, focuses on several broad strategies. However, 
there is nothing to prevent local school leaders from expanding the 
model as necessary to address other factors needed to respond to the 
specific needs of students in the school.
    Changes: None.
    Comment: One commenter suggested that the Department define 
``community-oriented schools'' as schools that partner with community-
based organizations to provide necessary services to students and 
families using research-based methods, which might include: a school-
based, on-site coordinator; comprehensive school- and student-level 
needs assessments; community-assets assessments and identification of 
potential partners; annual plans for school-level prevention and 
individual intervention strategies; delivery of an appropriate mix of 
prevention and intervention services; data collection and evaluation 
over time, with on-going modifications of services; and/or other 
research-based components. Another commenter suggested removing the 
word ``oriented'' and using the term ``community-schools,'' which the 
commenter indicated is more commonly known.
    Discussion: Although we appreciate the commenters' interest in 
ensuring greater clarity on the concept of ``community-oriented 
schools,'' we decline to make the suggested changes. The components of 
``community-oriented schools'' will vary school by school depending on 
student and community needs and resources. There is nothing in the 
notice that would prevent local school leaders from undertaking any of 
the strategies in the definition the commenters proposed if necessary 
to respond to the specific needs of students in the school.
    Changes: None.
    Comment: Some commenters suggested that the Department add 
``community-based organization'' and ``workforce systems, specifically 
nonprofit and community-based organizations providing employment, 
training, and education services to youth'' to the list of entities 
with which an LEA or school may choose to partner in providing 
enrichment activities during extended learning time.
    Discussion: In the SIG NPR, we listed universities, businesses, and 
museums as examples of entities with which a school could partner in 
providing enrichment activities during extended learning time. In this 
final notice, we are instead including a definition of increased 
learning time that applies to the Stabilization Phase II, Race to the 
Top, and SIG programs. That definition no longer includes examples of 
appropriate partnership entities, because there may be any number of 
organizations or entities in a particular community that might be 
appropriate partners.
    Changes: In the definition of increased learning time, we have 
included the following: ``(b) instruction in other subjects and 
enrichment activities that contribute to a well-rounded education, 
including, for example, physical education, service learning, and 
experiential and work-based learning opportunities that are provided by 
partnering, as appropriate, with other organizations;''.
    Comment: One commenter suggested that the reference to ``parents,'' 
in the list of entities with which schools might partner to create safe 
school environments that meet students' social, emotional, and health 
needs, should include ``parent organizations.''
    Discussion: We agree with this suggestion and are adding a 
reference to parent organizations.
    Changes: We have revised the permissible activity in paragraph 
(d)(3)(ii)(A) regarding creating safe school environments to include a 
reference to partnering with parents and ``parent organizations,'' 
along with faith- and community-based organizations, health clinics, 
other State and local agencies, and others.
    Comment: One commenter recommended that the Department define 
``family engagement'' and requiring the use of certain family-
engagement mechanisms, including family-engagement coordinators at 
school sites, home visitation programs, family literacy programs, and 
parent leadership programs. Another commenter recommended defining 
``community engagement'' as systemic efforts to involve parents, 
community residents, members of school communities, community partners, 
and other stakeholders in exploring student and school needs and, 
working together, developing a plan to address those needs.
    Discussion: We agree that there are any number of important 
activities that could support increased family and community 
engagement. The reference to family and community engagement in this 
notice is deliberately broad so as to provide maximum flexibility in 
determining how best to address local needs. However, there is nothing 
to prevent local school leaders from incorporating any of the 
strategies mentioned or other strategies that will lead to effective 
family and community engagement.
    Changes: None.
    Comment: One commenter recommended that the Department include 
language to make clear that extending learning time can be accomplished 
by adding a preschool program prior to school entry.
    Discussion: The Secretary agrees that preschool education is very 
important in ensuring that children enter kindergarten with the skills 
necessary to succeed in school. He also agrees that preschool education 
is an effective way to increase learning time.
    Changes: We have added, as a permissible activity in paragraph 
(d)(3)(ii)(D), expanding the school program to offer full-day 
kindergarten or pre-kindergarten.
    Comment: Several commenters suggested that the Department clarify 
that increased learning time includes summer school, after-school 
programs, and other instruction during non-school hours. Several other 
commenters suggested increasing instructional time during the school 
day and the need to make existing time more effective, including 
through the use of technology. Another commenter suggested clarifying 
that extended learning time should be beyond the current State-mandated 
instructional time.
    Discussion: We have added in this notice a definition of increased 
learning time that applies to the Stabilization Phase II, Race to the 
Top, and SIG programs. Under that definition, increased learning time 
means using a longer school day, week, or year schedule to 
significantly increase the total number of school hours to include 
additional time for instruction in core academic subjects; time for 
instruction in other subjects and enrichment activities that contribute 
to a well-rounded education; and time for teachers to collaborate, 
plan, and engage in professional development within and across grades 
and subjects.
    Changes: We have revised the notice to define increased learning 
time. The full definition is as follows:
    Increased learning time means using a longer school day, week, or 
year

[[Page 58483]]

schedule to significantly increase the total number of school hours to 
include additional time for (a) instruction in core academic subjects 
including English; reading or language arts; mathematics; science; 
foreign languages; civics and government; economics; arts; history; and 
geography; (b) instruction in other subjects and enrichment activities 
that contribute to a well-rounded education, including, for example, 
physical education, service learning, and experiential and work-based 
learning opportunities that are provided by partnering, as appropriate, 
with other organizations; and (c) teachers to collaborate, plan, and 
engage in professional development within and across grades and 
subjects.\9\
---------------------------------------------------------------------------

    \9\ Research supports the effectiveness of well-designed 
programs that expand learning time by a minimum of 300 hours per 
school year. (See Frazier, Julie A.; Morrison, Frederick J. ``The 
Influence of Extended-year Schooling on Growth of Achievement and 
Perceived Competence in Early Elementary School.'' Child 
Development. Vol. 69 (2), April 1998, pp. 495-497 and research done 
by Mass2020.) Extending learning into before- and after-school hours 
can be difficult to implement effectively, but is permissible under 
this definition with encouragement to closely integrate and 
coordinate academic work between in-school and out-of school. (See 
James-Burdumy, Susanne; Dynarski, Mark; Deke, John. ``When 
Elementary Schools Stay Open Late: Results from The National 
Evaluation of the 21st Century Community Learning Centers Program.'' 
http://www.mathematica-mpr.com/publications/redirect_PubsDB.asp?strSite=http://epa.sagepub.com/cgi/content/abstract/29/4/296. Educational Evaluation and Policy Analysis, Vol. 29 (4), 
December 2007, Document No. PP07-121.)
---------------------------------------------------------------------------

Providing Operating Flexibility and Sustained Support

    Comment: One commenter suggested that the Department add a 
requirement that a school implementing the transformation model be 
required to present a plan for how the various elements of the model 
are aligned and coordinated to improve student achievement and other 
indicators of student growth (such as health and civic competencies).
    Discussion: We decline to make the suggested change. We are 
confident that a school implementing the transformation model would 
have a plan without the need for the Department to require it.
    Changes: None.
    Comment: One commenter recommended that the list of potential 
technical assistance providers in proposed section I.A.d.iv.A.2 of the 
SIG NPR be expanded to include ``professional organizations that have a 
track record of turning around low-performing schools.''
    Discussion: This provision is intended to ensure that schools 
implementing the transformation model receive coordinated ongoing 
technical assistance and reflects the belief that an SEA, LEA, or 
external lead partner organization would be in the best position to 
integrate services at the school level. This notice does not preclude 
the involvement of entities other than those mentioned so long as they 
fulfill the role of a lead partner in integrating services and supports 
for the school.
    Changes: None.
    Comment: One commenter cautioned about the use of ``weighted per-
pupil school-based budgeting,'' noting that early research indicates 
this practice undermines cross-school cooperation by promoting 
competition among schools for students and the resources or liabilities 
they may represent.
    Discussion: We note that implementing a per-pupil school-based 
budget formula that is weighted based on student needs is listed as a 
permissible, not required, activity to give schools operational 
flexibility. We believe allocating funds based on student 
characteristics and then giving schools broad flexibility to use those 
funds to meet their respective needs is one way to provide incentives 
for schools to use their cumulative resources in innovative ways to 
meet the needs of their student population. If an LEA determines such 
budgeting is not appropriate in the context of its schools, it need not 
implement this activity.
    Changes: None.

Final Requirements

    The Secretary establishes the following requirements for the 
Stabilization program. We may apply these requirements in any year in 
which this program is in effect.
    I. Assurance Indicators and Descriptors: In general, a State must 
collect and publicly report (as defined in this notice) data and other 
information for the following indicators and descriptors regarding the 
assurances that the State has provided in order to receive funds under 
the Stabilization program.
    (a) Achieving equity in teacher distribution. A State must collect 
and publicly report data and other information on the extent to which 
students in high- and low-poverty schools in the State have access to 
highly qualified teachers; steps the State is currently taking to 
ensure that students from low-income families and minority students are 
not taught at higher rates than other students by inexperienced, 
unqualified, or out-of-field teachers; on how teacher and principal 
performance is evaluated; and the distribution of performance 
evaluation ratings or levels among teachers and principals. 
Specifically, a State must--
    Indicator (a)(1). Confirm, for the State, the number and percentage 
(including numerator and denominator) of core academic courses taught, 
in the highest-poverty and lowest-poverty schools, by teachers who are 
highly qualified consistent with section 9101(23) of the Elementary and 
Secondary Education Act of 1965, as amended (ESEA);
    Indicator (a)(2). Confirm whether the State's Teacher Equity Plan 
(as part of the State's Highly Qualified Teacher Plan) fully reflects 
the steps the State is currently taking to ensure that students from 
low-income families and minority students are not taught at higher 
rates than other students by inexperienced, unqualified, or out-of-
field teachers (as required in section 1111(b)(8)(C) of the ESEA);
    Descriptor (a)(1). Describe, for each local educational agency 
(LEA) in the State, the systems used to evaluate the performance of 
teachers and the use of results from those systems in decisions 
regarding teacher development, compensation, promotion, retention, and 
removal;
    Indicator (a)(3). Indicate, for each LEA in the State, whether the 
systems used to evaluate the performance of teachers include student 
achievement outcomes or student growth data as an evaluation criterion;
    Indicator (a)(4). Provide, for each LEA in the State whose teachers 
receive performance ratings or levels through an evaluation system, the 
number and percentage (including numerator and denominator) of teachers 
rated at each performance rating or level;
    Indicator (a)(5). Indicate, for each LEA in the State whose 
teachers receive performance ratings or levels through an evaluation 
system, whether the number and percentage (including numerator and 
denominator) of teachers rated at each performance rating or level are 
publicly reported for each school in the LEA;
    Descriptor (a)(2). Describe, for each LEA in the State, the systems 
used to evaluate the performance of principals and the use of results 
from those systems in decisions regarding principal development, 
compensation, promotion, retention, and removal;
    Indicator (a)(6). Indicate, for each LEA in the State, whether the 
systems used to evaluate the performance of principals include student 
achievement outcomes or student growth data as an evaluation criterion; 
and

[[Page 58484]]

    Indicator (a)(7). Provide, for each LEA in the State whose 
principals receive performance ratings or levels through an evaluation 
system, the number and percentage (including numerator and denominator) 
of principals rated at each performance rating or level;
    (b) Improving collection and use of data. A State must collect and 
publicly report information on the elements of its statewide 
longitudinal data system, on whether teachers receive data on student 
growth in a manner that is timely and informs instructional programs, 
and on whether teachers receive reports of individual teacher impact on 
student achievement. Specifically, a State must--
    Indicator (b)(1). Indicate which of the 12 elements described in 
section 6401(e)(2)(D) of the America COMPETES Act are included in the 
State's statewide longitudinal data system;
    Indicator (b)(2). Indicate whether the State provides student 
growth data on their current students and the students they taught in 
the previous year to, at a minimum, teachers of reading/language arts 
and mathematics in grades in which the State administers assessments in 
those subjects in a manner that is timely and informs instructional 
programs; and
    Indicator (b)(3). Indicate whether the State provides teachers of 
reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects with reports of individual 
teacher impact on student achievement on those assessments.
    (c) Standards and assessments. A State must collect and publicly 
report data and other information on whether students are provided 
high-quality State assessments; whether students with disabilities and 
limited English proficient students are included in State assessment 
systems; whether the State makes information available regarding 
student academic performance in the State compared to the academic 
performance of students in other States; and the extent to which 
students graduate from high school in four years with a regular high 
school diploma and continue on to pursue a college education. 
Specifically, a State must--
    Indicator (c)(1). Confirm the approval status, as determined by the 
Department, of the State's assessment system under section 1111(b)(3) 
of the ESEA with respect to reading/language arts, mathematics, and 
science assessments;
    Indicator (c)(2). Confirm whether the State has developed and 
implemented valid and reliable alternate assessments for students with 
disabilities that are approved by the Department;
    Indicator (c)(3). Confirm whether the State's alternate assessments 
for students with disabilities, if approved by the Department, are 
based on grade-level, modified, or alternate academic achievement 
standards;
    Indicator (c)(4). Indicate whether the State has completed, within 
the last two years, an analysis of the appropriateness and 
effectiveness of the accommodations it provides students with 
disabilities to ensure their meaningful participation in State 
assessments;
    Indicator (c)(5). Confirm the number and percentage (including 
numerator and denominator) of students with disabilities who are 
included in State reading/language arts and mathematics assessments;
    Indicator (c)(6). Indicate whether the State has completed, within 
the last two years, an analysis of the appropriateness and 
effectiveness of the accommodations it provides limited English 
proficient students to ensure their meaningful participation in State 
assessments;
    Indicator (c)(7). Confirm whether the State provides native 
language versions of State assessments for limited English proficient 
students that are approved by the Department;
    Indicator (c)(8). Confirm the number and percentage (including 
numerator and denominator) of limited English proficient students who 
are included in State reading/language arts and mathematics 
assessments;
    Indicator (c)(9). Confirm that the State's annual State Report Card 
(under section 1111(h)(1) of the ESEA) contains the most recent 
available State reading and mathematics National Assessment of 
Educational Progress (NAEP) results as required by 34 CFR 200.11(c);
    Indicator (c)(10). Provide, for the State, for each LEA in the 
State, for each high school in the State and, at each of these levels, 
by student subgroup (consistent with section 1111(b)(2)(C)(v)(II) of 
the ESEA), the number and percentage (including numerator and 
denominator) of students who graduate from high school using a four-
year adjusted cohort graduation rate as required by 34 CFR 
200.19(b)(1)(i);
    Indicator (c)(11). Provide, for the State, for each LEA in the 
State, for each high school in the State and, at each of these levels, 
by student subgroup (consistent with section 1111(b)(2)(C)(v)(II) of 
the ESEA), of the students who graduate from high school consistent 
with 34 CFR 200.19(b)(1)(i), the number and percentage (including 
numerator and denominator) who enroll in an institution of higher 
education (IHE) (as defined in section 101(a) of the Higher Education 
Act of 1965, as amended (HEA)) within 16 months of receiving a regular 
high school diploma; and
    Indicator (c)(12). Provide, for the State, for each LEA in the 
State, for each high school in the State and, at each of these levels, 
by student subgroup (consistent with section 1111(b)(2)(C)(v)(II) of 
the ESEA), of the students who graduate from high school consistent 
with 34 CFR 200.19(b)(1)(i) who enroll in a public IHE (as defined in 
section 101(a) of the HEA) in the State within 16 months of receiving a 
regular high school diploma, the number and percentage (including 
numerator and denominator) who complete at least one year's worth of 
college credit (applicable to a degree) within two years of enrollment 
in the IHE.
    (d) Supporting struggling schools. A State must collect and 
publicly report data and other information on the progress of certain 
groups of schools in the State on State assessments in reading/language 
arts and mathematics; on the extent to which reforms to improve student 
academic achievement are implemented in the persistently lowest-
achieving schools in the State; and on the extent to which charter 
schools are operating in the State. Specifically, a State must--
    Indicator (d)(1). Provide, for the State, the average statewide 
school gain in the ``all students'' category and the average statewide 
school gain for each student subgroup (as under section 
1111(b)(2)(C)(v) of the ESEA) on the State assessments in reading/
language arts and for the State and for each LEA in the State, the 
number and percentage (including numerator and denominator) of Title I 
schools in improvement, corrective action, or restructuring that have 
made progress (as defined in this notice) on State assessments in 
reading/language arts in the last year;
    Indicator (d)(2). Provide, for the State, the average statewide 
school gain in the ``all students'' category and the average statewide 
school gain for each student subgroup (as under section 
1111(b)(2)(C)(v) of the ESEA) on State assessments in mathematics and 
for the State and for each LEA in the State, the number and percentage 
(including numerator and denominator) of Title I schools in 
improvement, corrective action, or restructuring that have made 
progress on State assessments in mathematics in the last year;
    Descriptor (d)(1). Provide the definition of ``persistently lowest-

[[Page 58485]]

achieving schools'' (consistent with the requirements for defining this 
term set forth in this notice) that the State uses to identify such 
schools;
    Indicator (d)(3). Provide, for the State, the number and identity 
of the schools that are Title I schools in improvement, corrective 
action, or restructuring, that are identified as persistently lowest-
achieving schools;
    Indicator (d)(4). Provide, for the State, of the persistently 
lowest-achieving schools that are Title I schools in improvement, 
corrective action, or restructuring, the number and identity of those 
schools that have been turned around, restarted, closed, or transformed 
(as defined in this notice) in the last year;
    Indicator (d)(5). Provide, for the State, the number and identity 
of the schools that are secondary schools that are eligible for, but do 
not receive, Title I funds, that are identified as persistently lowest-
achieving schools;
    Indicator (d)(6). Provide, for the State, of the persistently 
lowest-achieving schools that are secondary schools that are eligible 
for, but do not receive, Title I funds, the number and identity of 
those schools that have been turned around, restarted, closed, or 
transformed in the last year;
    Indicator (d)(7). Provide, for the State and, if applicable, for 
each LEA in the State, the number of charter schools that are currently 
permitted to operate under State law;
    Indicator (d)(8). Confirm, for the State and for each LEA in the 
State that operates charter schools, the number of charter schools 
currently operating;
    Indicator (d)(9). Provide, for the State and for each LEA in the 
State that operates charter schools, the number and percentage of 
charter schools that have made progress on State assessments in 
reading/language arts in the last year;
    Indicator (d)(10). Provide, for the State and for each LEA in the 
State that operates charter schools, the number and percentage of 
charter schools that have made progress on State assessments in 
mathematics in the last year;
    Indicator (d)(11). Provide, for the State and for each LEA in the 
State that operates charter schools, the number and identity of charter 
schools that have closed (including schools that were not reauthorized 
to operate) within each of the last five years; and
    Indicator (d)(12). Indicate, for each charter school that has 
closed (including a school that was not reauthorized to operate) within 
each of the last five years, whether the closure of the school was for 
financial, enrollment, academic, or other reasons.
    II. State Plans: A State receiving funds under the Stabilization 
program must develop and submit to the Department a comprehensive plan 
that includes the following information.
    (a) Indicator and descriptor requirements. Except as discussed in 
paragraphs (c) and (d) of this section, the State must collect and 
publicly report the data or other information required by an assurance 
indicator or descriptor. To this end, the State must describe, for each 
assurance indicator or descriptor--
    (1) The State's current ability to fully collect the required data 
or other information at least annually;
    (2) The State's ability to fully publicly report the required data 
or other information, at least annually through September 30, 2011;
    (3) If the State is not currently able to fully collect, at least 
annually, the data or other information required by the indicator or 
descriptor--
    (i) The State's process and timeline for developing and 
implementing, as soon as possible but no later than September 30, 2011, 
the means to fully collect the data or information, including--
    (A) The milestones that the State establishes toward developing and 
implementing those means;
    (B) The date by which the State expects to reach each milestone; 
and
    (C) Any obstacles that may prevent the State from developing and 
implementing those means by September 30, 2011, including but not 
limited to requirements and prohibitions of State law and policy;
    (ii) The nature and frequency of reports that the State will 
provide to the public regarding its progress in developing and 
implementing those means; and
    (iii) The amount of funds the State is using or will use to develop 
and implement those means, and whether the funds are or will be 
Federal, State, or local funds; and
    (4) If the State is not able to fully publicly report, at least 
annually through September 30, 2011, the data or other information 
required by the indicator or descriptor--
    (i) The State's process and timeline for developing and 
implementing, as soon as possible but no later than September 30, 2011, 
the means to fully publicly report the data or information, including--
    (A) The milestones that the State establishes toward developing and 
implementing those means;
    (B) The date by which the State expects to reach each milestone; 
and
    (C) Any obstacles that may prevent the State from developing and 
implementing those means by September 30, 2011, including but not 
limited to requirements and prohibitions of State law and policy;
    (ii) The nature and frequency of reports that the State will 
provide to the public regarding its progress in developing and 
implementing those means; and
    (iii) The amount of funds the State is using or will use to develop 
and implement those means, and whether the funds are or will be 
Federal, State, or local funds.
    (b) Data or other information. If the State is currently able to 
fully collect and publicly report the data or other information 
required by the indicator or descriptor, the State must provide the 
most recent data or information with its plan and publicly report that 
plan.
    (c) Requirements for indicators in reform area (b) (improving 
collection and use of data).
    (1) With respect to Indicator (b)(1), the State must develop and 
implement a statewide longitudinal data system that includes each of 
the 12 elements described in section 6401(e)(2)(D) of the America 
COMPETES Act. To this end, the State must, in its plan--
    (i) Indicate which of the 12 elements are currently included in the 
State's statewide longitudinal data system; and
    (ii) If the State's statewide longitudinal data system does not 
currently include all 12 elements, describe--
    (A) The State's process and timeline for developing and 
implementing, as soon as possible but no later than September 30, 2011, 
a statewide longitudinal data system that fully includes all 12 
elements, including the milestones that the State establishes toward 
developing and implementing such a system, the date by which the State 
expects to reach each milestone, and any obstacles that may prevent the 
State from developing and implementing such a system by September 30, 
2011 (including but not limited to requirements and prohibitions of 
State law and policy);
    (B) The nature and frequency of reports that the State will provide 
to the public regarding its progress in developing and implementing 
such a system; and
    (C) The amount of funds the State is using or will use to develop 
and implement such a system, and whether the funds are or will be 
Federal, State, or local funds.

[[Page 58486]]

    (2) With respect to Indicator (b)(2), the State must provide 
student growth data on their students to, at a minimum, teachers of 
reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects, in a manner that is timely 
and informs instructional programs. To this end, the State must--
    (i) Indicate whether the State provides teachers with such data; 
and
    (ii) If the State does not provide teachers with such data, 
describe--
    (A) The State's process and timeline for developing and 
implementing, as soon as possible but no later than September 30, 2011, 
the means to provide teachers with such data, including the milestones 
that the State establishes toward developing and implementing those 
means, the date by which the State expects to reach each milestone, and 
any obstacles that may prevent the State from developing and 
implementing those means by September 30, 2011 (including but not 
limited to requirements and prohibitions of State law and policy);
    (B) The nature and frequency of reports that the State will provide 
to the public regarding its progress in developing and implementing 
those means; and
    (C) The amount of funds the State is using or will use to develop 
and implement those means, and whether the funds are or will be 
Federal, State, or local funds.
    (3) With respect to Indicator (b)(3), the State must--
    (i) Indicate whether it provides teachers of reading/language arts 
and mathematics in grades in which the State administers assessments in 
those subjects with reports of individual teacher impact on student 
achievement on those assessments; and
    (ii) If the State does not provide those teachers with such 
reports, describe--
    (A) The State's process and timeline for developing and 
implementing the means to provide those teachers with such reports, 
including the milestones that the State establishes toward developing 
and implementing those means, the date by which the State expects to 
reach each milestone, and any obstacles that may prevent the State from 
developing and implementing those means (including but not limited to 
requirements and prohibitions of State law and policy);
    (B) The nature and frequency of reports that the State will provide 
to the public regarding its progress in developing and implementing 
those means; and
    (C) The amount of funds the State is using or will use to develop 
and implement those means, and whether the funds are or will be 
Federal, State, or local funds.
    (d) Requirements for Indicators (c)(11) and (c)(12). With respect 
to Indicators (c)(11) and (c)(12), the State is required to, at a 
minimum, possess the ability to collect and publicly report the data. 
As a result, the requirements of paragraph (a) of this section apply to 
these indicators, at a minimum, with respect to the State's development 
of the means to collect and to publicly report the data. Accordingly--
    (1) If, for either of these indicators, a State will develop but 
not implement the means to collect and publicly report the data (i.e., 
the State will not collect and publicly report the data) by September 
30, 2011, the State--
    (i) Must submit a plan with respect to the indicator that addresses 
the requirements of paragraph (a) only with respect to the State's 
development of the means to collect and to publicly report the data, 
and not the State's implementation of those means; and
    (ii) If submitting a plan in this manner, must include in its plan 
a description of the evidence it will provide to the Department of 
Education, by September 30, 2011, to demonstrate that it has developed 
the means to collect and publicly report that data.
    (2) If, however, for either of these indicators, a State will 
develop and implement those means (i.e., the State will collect and 
publicly report the data) by September 30, 2011, the State must submit 
a plan with respect to the indicator that fully addresses the 
requirements of paragraph (a).
    (e) General requirements. The State must describe--
    (1) The agency or agencies in the State responsible for the 
development, execution, and oversight of the plan, including the 
institutional infrastructure and capacity of the agency or agencies as 
they relate to each of those tasks;
    (2) The agency or agencies, institutions, or organizations, if any, 
providing technical assistance or other support in the development, 
execution, and oversight of the plan, and the nature of such technical 
assistance or other support;
    (3) The overall budget for the development, execution, and 
oversight of the plan;
    (4) The processes the State employs to review and verify the 
required data and other information; and
    (5) The processes the State employs to ensure that, consistent with 
34 CFR 99.31(b), the required data and other information are not made 
publicly available in a manner that personally identifies students, 
where applicable.

Final Definitions

    The Secretary establishes the following definitions for 
Stabilization program terms not defined in the ARRA (or, by reference, 
in the ESEA or the HEA). We may apply these definitions in any year in 
which this program is in effect.
    For the purposes of this program, publicly report means that the 
data or information required for an indicator or descriptor are made 
available to anyone with access to an Internet connection without 
having to submit a request to the entity that maintains the data and 
information in order to access that data and information. Therefore, 
States are required to maintain a public Web site that provides the 
data and information that are responsive to the indicator and 
descriptor requirements. If a State does not currently provide the 
required data or information, it must provide on this Web site its plan 
with respect to the indicator or descriptor and its reports on its 
progress in implementing that plan.
    With respect to the requirement that a State collect and publicly 
report on the extent to which students in high- and low-poverty schools 
in the State have access to highly qualified teachers, highest-poverty 
school means, consistent with section 1111(h)(1)(C)(viii) of the ESEA, 
a school in the highest quartile of schools (at the State and LEA 
levels, respectively) using a measure of poverty determined by the 
State. Similarly, lowest-poverty school means, consistent with section 
1111(h)(1)(C)(viii) of the ESEA, a school in the lowest quartile of 
schools (at the State and LEA levels, respectively) using a measure of 
poverty determined by the State.
    With respect to the requirements that a State indicate whether the 
systems used to evaluate the performance of teachers and principals 
include student achievement outcomes as an evaluation criterion, 
student achievement outcomes means outcomes including, at a minimum, 
one of the following: student performance on summative assessments, or 
on assessments predictive of student performance on summative 
assessments, in terms of absolute performance, gains, or growth; 
student grades; and rates at which students are on track to graduate 
from high school with a regular high school diploma.
    With respect to the requirements that a State indicate whether 
teacher and principal evaluation systems include student growth data as 
an evaluation criterion and whether the State provides such data to, at 
a minimum, teachers of reading/language arts and mathematics

[[Page 58487]]

in grades in which the State administers assessments in those subjects, 
student growth means the change in achievement for an individual 
student between two or more points in time. For grades in which the 
State administers summative assessments in reading/language arts and 
mathematics, student growth data must be based on a student's score on 
the State's assessment under section 1111(b)(3) of the ESEA. A State 
may also include other measures that are rigorous and comparable across 
classrooms.
    With respect to the requirement that a State collect and publicly 
report the number of high-school graduates who enrolled in a public IHE 
in the State who complete at least one year's worth of college credit 
(applicable to a degree) within two years of enrollment, college credit 
(applicable to a degree) is used as that term is defined by the IHE 
granting such credit.
    With respect to the requirements that a State collect and publicly 
report the numbers and percentages of certain groups of schools that 
have made progress on State assessments in reading/language arts and in 
mathematics in the last year, school that has made progress means a 
school whose gains on the assessment, in the ``all students'' category 
and for each student subgroup (as under section 1111(b)(2)(C)(v) of the 
ESEA), are equal to or greater than the average statewide school gains 
in the State on that assessment, in the ``all students'' category and 
for each student subgroup, except that if the average statewide school 
gains in the State on that assessment are equal to or less than zero, 
the gains of the school must be greater than zero.
    With respect to the requirements that a State collect and publicly 
report data and information on the persistently lowest-achieving 
schools that are Title I schools in improvement, corrective action, or 
restructuring or secondary schools that are eligible for, but do not 
receive, Title I funds, persistently lowest-achieving schools means, as 
determined by the State--
    (a)(1) Any Title I school in improvement, corrective action, or 
restructuring that--
    (i) Is among the lowest-achieving five percent of Title I schools 
in improvement, corrective action, or restructuring or the lowest-
achieving five Title I schools in improvement, corrective action, or 
restructuring in the State, whichever number of schools is greater; or
    (ii) Is a high school that has had a graduation rate as defined in 
34 CFR 200.19(b) that is less than 60 percent over a number of years; 
and
    (2) Any secondary school that is eligible for, but does not 
receive, Title I funds that--
    (i) Is among the lowest-achieving five percent of secondary schools 
or the lowest-achieving five secondary schools in the State that are 
eligible for, but do not receive, Title I funds, whichever number of 
schools is greater; or
    (ii) Is a high school that has had a graduation rate as defined in 
34 CFR 200.19(b) that is less than 60 percent over a number of years.
    (b) To identify the lowest-achieving schools, a State must take 
into account both--
    (1) The academic achievement of the ``all students'' group in a 
school in terms of proficiency on the State's assessments under section 
1111(b)(3) of the ESEA in reading/language arts and mathematics 
combined; and
    (2) The school's lack of progress on those assessments over a 
number of years in the ``all students'' group.
    With respect to the requirements that a State collect and publicly 
report, of the persistently lowest-achieving schools, the number and 
identity of schools that have been turned around, restarted, closed, or 
transformed through one of the following in the last year--
    (a) Turnaround model. (1) A turnaround model is one in which an LEA 
must--
    (i) Replace the principal and grant the principal sufficient 
operational flexibility (including in staffing, calendars/time, and 
budgeting) to implement fully a comprehensive approach in order to 
substantially improve student achievement outcomes and increase high 
school graduation rates;
    (ii) Using locally adopted competencies to measure the 
effectiveness of staff who can work within the turnaround environment 
to meet the needs of students,
    (A) Screen all existing staff and rehire no more than 50 percent; 
and
    (B) Select new staff;
    (iii) Implement such strategies as financial incentives, increased 
opportunities for promotion and career growth, and more flexible work 
conditions that are designed to recruit, place, and retain staff with 
the skills necessary to meet the needs of the students in the 
turnaround school;
    (iv) Provide staff with ongoing, high-quality, job-embedded 
professional development that is aligned with the school's 
comprehensive instructional program and designed with school staff to 
ensure that they are equipped to facilitate effective teaching and 
learning and have the capacity to successfully implement school reform 
strategies;
    (v) Adopt a new governance structure, which may include, but is not 
limited to, requiring the school to report to a new ``turnaround 
office'' in the LEA or SEA, hire a ``turnaround leader'' who reports 
directly to the Superintendent or Chief Academic Officer, or enter into 
a multi-year contract with the LEA or SEA to obtain added flexibility 
in exchange for greater accountability;
    (vi) Use data to identify and implement an instructional program 
that is research-based and ``vertically aligned'' from one grade to the 
next as well as aligned with State academic standards;
    (vii) Promote the continuous use of student data (such as from 
formative, interim, and summative assessments) to inform and 
differentiate instruction in order to meet the academic needs of 
individual students;
    (viii) Establish schedules and implement strategies that provide 
increased learning time (as defined in this notice); and
    (ix) Provide appropriate social-emotional and community-oriented 
services and supports for students.
    (2) A turnaround model may also implement other strategies such 
as--
    (i) Any of the required and permissible activities under the 
transformation model; or
    (ii) A new school model (e.g., themed, dual language academy).
    (b) Restart model. A restart model is one in which an LEA converts 
a school or closes and reopens a school under a charter school 
operator, a charter management organization (CMO), or an education 
management organization (EMO) that has been selected through a rigorous 
review process. (A CMO is a non-profit organization that operates or 
manages charter schools by centralizing or sharing certain functions 
and resources among schools. An EMO is a for-profit or non-profit 
organization that provides ``whole-school operation'' services to an 
LEA.) A restart model must enroll, within the grades it serves, any 
former student who wishes to attend the school.
    (c) School closure. School closure occurs when an LEA closes a 
school and enrolls the students who attended that school in other 
schools in the LEA that are higher achieving. These other schools 
should be within reasonable proximity to the closed school and may 
include, but are not limited to, charter schools or new schools for 
which achievement data are not yet available.
    (d) Transformation model. A transformation model is one in which

[[Page 58488]]

an LEA implements each of the following strategies:
    (1) Developing and increasing teacher and school leader 
effectiveness.
    (i) Required activities. The LEA must--
    (A) Replace the principal who led the school prior to commencement 
of the transformation model;
    (B) Use rigorous, transparent, and equitable evaluation systems for 
teachers and principals that--
    (1) Take into account data on student growth (as defined in this 
notice) as a significant factor as well as other factors such as 
multiple observation-based assessments of performance and ongoing 
collections of professional practice reflective of student achievement 
and increased high-school graduation rates; and
    (2) Are designed and developed with teacher and principal 
involvement;
    (C) Identify and reward school leaders, teachers, and other staff 
who, in implementing this model, have increased student achievement and 
high-school graduation rates and identify and remove those who, after 
ample opportunities have been provided for them to improve their 
professional practice, have not done so;
    (D) Provide staff with ongoing, high-quality, job-embedded 
professional development (e.g., regarding subject-specific pedagogy, 
instruction that reflects a deeper understanding of the community 
served by the school, or differentiated instruction) that is aligned 
with the school's comprehensive instructional program and designed with 
school staff to ensure they are equipped to facilitate effective 
teaching and learning and have the capacity to successfully implement 
school reform strategies; and
    (E) Implement such strategies as financial incentives, increased 
opportunities for promotion and career growth, and more flexible work 
conditions that are designed to recruit, place, and retain staff with 
the skills necessary to meet the needs of the students in a 
transformation school.
    (ii) Permissible activities. An LEA may also implement other 
strategies to develop teachers' and school leaders' effectiveness, such 
as--
    (A) Providing additional compensation to attract and retain staff 
with the skills necessary to meet the needs of the students in a 
transformation school;
    (B) Instituting a system for measuring changes in instructional 
practices resulting from professional development; or
    (C) Ensuring that the school is not required to accept a teacher 
without the mutual consent of the teacher and principal, regardless of 
the teacher's seniority.
    (2) Comprehensive instructional reform strategies.
    (i) Required activities. The LEA must--
    (A) Use data to identify and implement an instructional program 
that is research-based and ``vertically aligned'' from one grade to the 
next as well as aligned with State academic standards; and
    (B) Promote the continuous use of student data (such as from 
formative, interim, and summative assessments) to inform and 
differentiate instruction in order to meet the academic needs of 
individual students.
    (ii) Permissible activities. An LEA may also implement 
comprehensive instructional reform strategies, such as--
    (A) Conducting periodic reviews to ensure that the curriculum is 
being implemented with fidelity, is having the intended impact on 
student achievement, and is modified if ineffective;
    (B) Implementing a schoolwide ``response-to-intervention'' model;
    (C) Providing additional supports and professional development to 
teachers and principals in order to implement effective strategies to 
support students with disabilities in the least restrictive environment 
and to ensure that limited English proficient students acquire language 
skills to master academic content;
    (D) Using and integrating technology-based supports and 
interventions as part of the instructional program; and
    (E) In secondary schools--
    (1) Increasing rigor by offering opportunities for students to 
enroll in advanced coursework (such as Advanced Placement or 
International Baccalaureate; or science, technology, engineering, and 
mathematics courses, especially those that incorporate rigorous and 
relevant project-, inquiry-, or design-based contextual learning 
opportunities), early-college high schools, dual enrollment programs, 
or thematic learning academies that prepare students for college and 
careers, including by providing appropriate supports designed to ensure 
that low-achieving students can take advantage of these programs and 
coursework;
    (2) Improving student transition from middle to high school through 
summer transition programs or freshman academies;
    (3) Increasing graduation rates through, for example, credit-
recovery programs, re-engagement strategies, smaller learning 
communities, competency-based instruction and performance-based 
assessments, and acceleration of basic reading and mathematics skills; 
or
    (4) Establishing early-warning systems to identify students who may 
be at risk of failing to achieve to high standards or graduate.
    (3) Increasing learning time and creating community-oriented 
schools.
    (i) Required activities. The LEA must--
    (A) Establish schedules and implement strategies that provide 
increased learning time (as defined in this notice); and
    (B) Provide ongoing mechanisms for family and community engagement.
    (ii) Permissible activities. An LEA may also implement other 
strategies that extend learning time and create community-oriented 
schools, such as--
    (A) Partnering with parents and parent organizations, faith- and 
community-based organizations, health clinics, other State or local 
agencies, and others to create safe school environments that meet 
students' social, emotional, and health needs;
    (B) Extending or restructuring the school day so as to add time for 
such strategies as advisory periods that build relationships between 
students, faculty, and other school staff;
    (C) Implementing approaches to improve school climate and 
discipline, such as implementing a system of positive behavioral 
supports or taking steps to eliminate bullying and student harassment; 
or
    (D) Expanding the school program to offer full-day kindergarten or 
pre-kindergarten.
    (4) Providing operational flexibility and sustained support.
    (i) Required activities. The LEA must--
    (A) Give the school sufficient operational flexibility (such as 
staffing, calendars/time, and budgeting) to implement fully a 
comprehensive approach to substantially improve student achievement 
outcomes and increase high school graduation rates; and
    (B) Ensure that the school receives ongoing, intensive technical 
assistance and related support from the LEA, the SEA, or a designated 
external lead partner organization (such as a school turnaround 
organization or an EMO).
    (ii) Permissible activities. The LEA may also implement other 
strategies for providing operational flexibility and intensive support, 
such as--
    (A) Allowing the school to be run under a new governance 
arrangement, such as a turnaround division within the LEA or SEA; or

[[Page 58489]]

    (B) Implementing a per-pupil school-based budget formula that is 
weighted based on student needs.
    If a school identified as a persistently lowest-achieving school 
has implemented, in whole or in part within the last two years, an 
intervention that meets the requirements of the turnaround, restart, or 
transformation models, the school may continue or complete the 
intervention being implemented.
    With respect to the requirement that schools using a turnaround 
model or a transformation model have increased learning time, increased 
learning time means using a longer school day, week, or year schedule 
to significantly increase the total number of school hours to include 
additional time for (a) instruction in core academic subjects, 
including English, reading or language arts; mathematics; science; 
foreign languages; civics and government; economics; arts; history; and 
geography; (b) instruction in other subjects and enrichment activities 
that contribute to a well-rounded education, including, for example, 
physical education, service learning, and experiential and work-based 
learning opportunities that are provided by partnering, as appropriate, 
with other organizations; and (c) teachers to collaborate, plan, and 
engage in professional development within and across grades and 
subjects.\10\
---------------------------------------------------------------------------

    \10\ Research supports the effectiveness of well-designed 
programs that expand learning time by a minimum of 300 hours per 
school year. (See Frazier, Julie A.; Morrison, Frederick J. ``The 
Influence of Extended-year Schooling on Growth of Achievement and 
Perceived Competence in Early Elementary School.'' Child 
Development. Vol. 69 (2), April 1998, pp. 495-497 and research done 
by Mass2020.) Extending learning into before- and after-school hours 
can be difficult to implement effectively, but is permissible under 
this definition with encouragement to closely integrate and 
coordinate academic work between in school and out of school. (See 
James-Burdumy, Susanne; Dynarski, Mark; Deke, John. ``When 
Elementary Schools Stay Open Late: Results from The National 
Evaluation of the 21st Century Community Learning Centers Program.'' 
http://www.mathematica-mpr.com/publications/redirect_PubsDB.asp?strSite=http://epa.sagepub.com/cgi/content/abstract/29/4/296. Educational Evaluation and Policy Analysis, Vol. 29 (4), 
December 2007, Document No. PP07-121.)
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Final Approval Criteria

    The Secretary establishes the following criteria for approving the 
plan of a State receiving funds under the Stabilization program. We may 
apply one or more of these criteria in any year in which this program 
is in effect.
    (a) Quality of the State plan. Except as described in paragraph 
(b), in determining the quality of the plan submitted by a State, we 
consider the following:
    (1) Whether the plan clearly and accurately describes the State's 
abilities to collect and to publicly report the data or other 
information required by an assurance indicator and descriptor; and
    (2) If the State is not currently able to fully collect and 
publicly report the data or information required by an indicator or 
descriptor--
    (i) Whether the timeline and process for developing and 
implementing the means to fully collect and publicly report the data or 
information are reasonable and sufficient to comply with the 
requirement;
    (ii) Whether any obstacles identified by the State as preventing it 
from developing and implementing the means to fully collect and 
publicly report the data or information by September 30, 2011 are 
sufficient to justify a delay in complying with the requirement; and
    (iii) Whether the reports that the State will provide to the public 
will be appropriately accessible and will sufficiently indicate the 
State's progress in developing and implementing the means to comply 
with the requirement.
    (b) Quality of the State plan with respect to indicators in reform 
area (b) (improving collection and use of data). In determining the 
quality of the plan submitted by a State as it relates to the 
indicators in reform area (b), we consider the following:
    (1) Whether the plan clearly and accurately describes the State's 
ability to meet the plan requirement for the indicator (i.e., in the 
case of Indicator (b)(1), the requirement to develop and implement a 
statewide longitudinal data system that includes each of the 12 
elements described in section 6401(e)(2)(D) of the America COMPETES 
Act; and in the case of Indicator (b)(2), the requirement to provide 
student growth data on their students to, at a minimum, teachers of 
reading/language arts and mathematics in grades in which the State 
administers assessments in those subjects, in a manner that is timely 
and informs instructional programs); and
    (2) If the State does not currently meet the plan requirement for 
the indicator--
    (i) Whether the timeline and process for developing and 
implementing the means to meet the requirement are reasonable and 
sufficient to comply with the requirement;
    (ii) Excluding Indicator (b)(3), whether any obstacles identified 
by the State as preventing it from developing and implementing the 
means to meet the requirement by September 30, 2011 are sufficient to 
justify a delay in complying with the requirement; and
    (iii) Whether the reports that the State will provide to the public 
will be appropriately accessible and will sufficiently indicate the 
State's progress in developing and implementing the means to comply 
with the requirement.
    (c) Adequacy of the State plan. In determining the adequacy of the 
plan submitted by a State, we consider the following:
    (1) Whether the institutional infrastructure and capacity of the 
agency or agencies responsible for the development, implementation, and 
oversight of the plan, together with any technical assistance or other 
support provided by other agencies, institutions, or organizations, are 
adequate to comply with the indicator and descriptor requirements 
individually and as a whole;
    (2) Whether the funds the State is using or will use are adequate 
to comply with the indicator and descriptor requirements both 
individually and as a whole;
    (3) Whether the processes the State employs to review and verify 
the required data and information are adequate to ensure that the data 
and information are accurate and of high quality; and
    (4) Whether the processes the State employs are adequate to ensure 
that, where applicable, the required data and other information are not 
made publicly available in a manner that personally identifies 
students.
    Executive Order 12866:
    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by OMB. 
Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as an action likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more, or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments, or communities in a material way (also referred to 
as an ``economically significant'' rule); (2) create serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. Pursuant to the 
Executive Order, it has been determined that this regulatory

[[Page 58490]]

action will have an annual effect on the economy of more than $100 
million because the amount of government transfers provided through 
SFSF will exceed that amount. Therefore, this action is ``economically 
significant'' and subject to OMB review under section 3(f)(1) of the 
Executive Order.
    The costs of this regulatory action have been reviewed in 
accordance with Executive Order 12866. Under the terms of the Order, 
the Department has assessed the costs and benefits of this regulatory 
action.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these requirements, the Department has determined 
that the benefits of the requirements exceed the costs. The Department 
also has determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Need for Federal Regulatory Action

    These requirements, definitions, and approval criteria are needed 
to implement the State Fiscal Stabilization Fund program in a manner 
that the Secretary believes will best enable the program to achieve its 
objectives of supporting meaningful education reforms in the States 
while helping to stabilize State and local budgets and minimize 
reductions in education and other essential services. In particular, 
the requirements, definitions, and approval criteria included in this 
notice are necessary to advance the four key educational reforms listed 
in the ARRA, particularly by ensuring better reporting and more public 
availability of information on the progress of implementation in each 
of the four reform areas. The requirement for each State to establish a 
longitudinal data system that includes the elements specified in the 
America COMPETES Act will have an especially significant impact on the 
availability of data that can be used in developing and improving 
programs; targeting services; developing better linkages between 
preschool, elementary and secondary schools, and postsecondary systems, 
agencies, and institutions; and holding schools, LEAs, and institutions 
accountable for their performance. Establishment of such a system by 
each participating State is also required under the ARRA.
    Further, the requirement for each State to provide student growth 
data on their current students and the students they taught in the 
previous year to, at a minimum, teachers of reading/language arts and 
mathematics in grades in which the State administers assessments in 
those subjects, in a manner that is timely and informs instructional 
programs, reflects a need to ensure that teachers have better data on 
how well they are educating their students, and that school and LEA 
leaders have valuable information that they can use in developing and 
providing professional development opportunities, assigning teachers, 
and implementing compensation and other human capital policies.
    The definitions included in this notice are necessary to give 
clearer meaning to some of the terms used in the descriptions of the 
requirements and approval criteria. The approval criteria themselves 
are needed in order to provide for a clear and objective set of 
standards that the Secretary will use in ensuring that each State, 
before receiving the remainder of its Stabilization program allocation, 
has in place a plan for collecting and publicly reporting the required 
data and meeting the other requirements in this notice.

Regulatory Alternatives Considered

    A likely alternative to promulgation of the types of requirements, 
definitions, and approval criteria in this notice would be for the 
Secretary to release the remaining Stabilization program funds without 
establishing specific reporting or other requirements. Under such a 
scenario, participating States would still be required to meet the 
statutory requirements (that is, to take actions to improve teacher 
effectiveness and the equitable distribution of highly qualified 
teachers, establish statewide longitudinal data systems that include 
the elements specified in the America COMPETES Act, enhance the quality 
of their standards and assessments, ensure the inclusion of students 
with disabilities and limited English proficient students in their 
assessments, and take steps to improve consistently low-performing 
schools), but there would be no assurance of consistent and complete 
reporting of States' progress and no uniform mechanism for measuring 
and comparing States' performance. Additionally, the need for teachers 
to obtain better information on their students' educational progress 
would likely be unfulfilled.

Summary of Costs and Benefits

    The Department has analyzed the costs of complying with these final 
requirements. Some of the costs will be minimal and others more 
significant. As an example of a requirement that will result in minimal 
burden and cost, States are currently required to report annually, 
through EDFacts (the Department's centralized data collection and 
warehousing system), for the State as a whole and for each LEA, the 
number and percentage of core academic courses taught, in the highest-
poverty and lowest-poverty schools, by teachers who are highly 
qualified. Indicator (a)(1) requires that they confirm the data they 
have reported, which should not be a time-consuming responsibility. As 
a second example, the requirement to confirm the approval status of the 
State's assessment system under section 1111(b)(3) of the ESEA, as 
determined by the Department, should also require minimal effort.

General Discussion of Comments

    Other requirements will impose significant new costs. Many 
commenters asserted that the volume of the proposed data collection 
requirements would constitute an unreasonable, unrealistic task for 
States and LEAs, particularly in light of strained budgets and 
reductions in personnel. Two commenters acknowledged that some data 
requirements would be appropriate in light of such an investment as the 
SFSF; they contended, however, that the proposed requirements would go 
beyond what they considered appropriate. Commenters variously 
recommended generally reducing the data requirements, allowing 
sampling, increasing reporting time, and adding support for school and 
LEA capacity-building specifically to meet data collection and 
reporting requirements. One commenter argued that, while the 
commenter's State could complete the plan as required, the State could 
not actually carry out all data collection activities in the plan.
    While we understand the fiscal challenges that face numerous States 
and LEAs, we strongly believe that the benefits to the public of these 
requirements outweigh the State and local implementation costs. 
Specifically, the major benefit of these requirements, taken in their 
totality, is better and more publicly available information on the 
status of activities related to the reform areas identified in the 
authorizing statute for the Stabilization program. As described in 
detail later in this section, research indicates or suggests that 
progress on each of the reforms will contribute to improved student 
outcomes. The provision of better information (on teacher 
qualifications, teacher and principal evaluation systems, State student 
longitudinal data systems, State standards and assessment systems, 
student success in high-school and postsecondary education, efforts to 
turn around persistently lowest-achieving schools, and charter school

[[Page 58491]]

reforms) to policymakers, educators, parents, and other stakeholders 
will assist in their efforts to further the reforms. In addition, State 
reporting of these data will help the Department determine the impact 
of the unprecedented level of funding made available by the ARRA. 
Further, the data and plans that States submit will inform Federal 
education policy, including the upcoming reauthorization of the ESEA.
    While several commenters expressed concern regarding the lack of 
funds available to States to comply with the data requirements, 
emphasizing that States have recently had to make severe budget cuts, 
States will be able to draw on Federal resources in meeting some of the 
requirements. For example, the requirements that would result in the 
most significant costs are related to the implementation of a State 
data system that can track individual student transitions from high 
school to college. As one commenter noted, Federal funds that States 
receive from the Statewide Longitudinal Data Systems Grant program, 
through which the Department has made over $187 million available since 
fiscal year 2005, may be used to meet this requirement. The ARRA 
provided an additional $250 million for that program, and the 
Administration's budget request for fiscal year 2010 includes an 
additional $65 million. In addition, it is important to note that 
States may use funds available through the Stabilization program's 
Government Services Fund (over $8.8 billion) to develop and implement 
the systems necessary to report on these performance indicators.
    Some commenters argued that the Stabilization Government Services 
Fund will not be sufficient to cover the expenses of complying with 
these requirements. Three commenters added that the Department should 
not add data requirements unknown at the time States obligated the 
Stabilization funds. A few commenters contended that, in accordance 
with congressional intent, States have used or will use SFSF funds to 
help avoid severe reductions in State services and layoffs of State-
funded employees, including in the educational system. One of these 
commenters further explained that, even with Stabilization funds, the 
LEAs in the commenter's State must still implement severe budget cuts. 
Another explained that other Federal programs requiring States to 
collect data provide administrative funds for this purpose. Numerous 
commenters asserted that much time has already been spent collecting 
and reporting data related to SFSF Phase I. Two commenters expressed 
appreciation for the relief SFSF funds have provided to LEAs, but noted 
that States received no portion of the Education Fund resources. The 
Department appreciates the perspective captured in these comments but 
continues to believe that Stabilization funds should be used to save 
and create jobs as well as to advance education reform, and has clearly 
stated those objectives since the passage of the ARRA. As stated 
earlier, the Department is requiring States to report on the particular 
indicators and descriptors presented in this notice in the interest of 
advancing reform in a transparent manner.
    The Department recognizes, however, that the proposed requirements 
would have required more effort than may be reasonable for States at 
this time. Therefore, the Department has made a key change from the 
proposed requirements to reduce the estimated cost of the final 
requirements. In the NPR, the Department proposed to require each State 
to provide teachers of reading/language arts and mathematics with data 
on the performance of their students that includes estimates of 
individual teacher impact on student achievement and, if the State does 
not do so, to describe a process and timeline for doing so by September 
30, 2011. The final requirements provide, instead, for States to 
provide student growth data to, at a minimum, teachers of reading/
language arts and mathematics in grades in which the State administers 
assessments in those subjects, in a manner that is timely and informs 
instructional programs.\11\ The Department expects that this 
requirement will be significantly less costly to implement.
---------------------------------------------------------------------------

    \11\ The final requirements, however, still require States to 
indicate whether they provide reports of individual teacher impact 
on student achievement and, if they do not, to provide a plan for 
doing so.
---------------------------------------------------------------------------

    One commenter warned that, without ongoing funds to maintain, for 
example, the longitudinal data system, the modifications to student 
assessments, or the Federal reporting requirements, these requirements 
will create a ``funding cliff'' in fiscal year 2011. The Department 
encourages States to consider ways that these funds may be invested so 
as to minimize the impact of the end of the period of availability of 
the Stabilization funds, and disagrees with another commenter who 
argued that these requirements constitute an unfunded mandate. States 
and LEAs may use a share of these or other resources to respond to 
these requirements, and the Department expects that Government Services 
funds as well as State administrative funds from other programs, 
including Title II, Part A, can be used as appropriate to meet these 
requirements. Two additional commenters urged the Department to allow 
States to report that they will use funds from Race to the Top to 
comply with the requirements established in this notice; the Department 
encourages States that apply for Race to the Top grants to consider how 
those funds may be used to meet these requirements while also meeting 
the criteria for Race to the Top.
    The following is a detailed analysis of the estimated costs of 
implementing the specific final requirements, followed by a discussion 
of the anticipated benefits. The costs of implementing specific 
paperwork-related requirements are also shown in the tables in the 
Paperwork Reduction Act of 1995 section of this notice.

Distribution of Highly Qualified Teachers

    Section 14005(d)(2) of the ARRA requires a State receiving funds 
under the Stabilization program to assure, in the Stabilization program 
application, that it will address inequities in the distribution of 
highly qualified teachers. In response to this requirement, the 
Department is requiring States to confirm, for the State and for each 
LEA in the State, the number and percentage of core academic courses 
taught, in the highest-poverty and lowest-poverty schools, by teachers 
who are highly qualified. Because States will have previously submitted 
this information to the Department through the EDFacts system, we 
anticipate that the costs of complying with this requirement would be 
minimal. A State likely would need only to ensure that it had correctly 
aggregated and reported data received from its LEAs. The Department 
expects that each State would require one hour of staff time to 
complete this effort, at a cost of $30 per hour.\12\ For the 50 States, 
the District of Columbia, and Puerto Rico, the total estimated level of 
effort would be 52 hours at a cost of $1,560. In addition, the final 
requirements provide for States to indicate whether the State's Teacher 
Equity Plan (a part of the State's Highly Qualified Teacher Plan) has 
been updated to fully reflect the steps the State is currently taking 
to ensure that

[[Page 58492]]

students from low-income families and minority students are not taught 
at higher rates than other students by inexperienced, unqualified, or 
out-of-field teachers. The Department expects that this will require an 
hour of effort, for a total estimated burden of 52 hours at a cost of 
$1,560.
---------------------------------------------------------------------------

    \12\ Some commenters argued that we should use a higher estimate 
than $30 per hour of State effort but did not provide specific 
alternate estimates. We believe that $30 is a reasonable estimate of 
the national average cost of staff time in State educational 
agencies; it is also the estimate the Department has used in other 
regulatory cost estimates. We recognize, however, that actual costs 
will vary across States.
---------------------------------------------------------------------------

Teacher and Principal Evaluation Systems

    Section 14005(d)(2) also requires States to take actions to improve 
teacher effectiveness. To accomplish that goal, States must first have 
a means of assessing teacher success. A limited number of States have 
implemented statewide teacher and principal evaluation systems, while 
in the other States the responsibility for evaluating teachers and 
principals rests with the LEAs or schools. Little is known about the 
design of these systems across the Nation, but the collection and 
reporting of additional information would create a resource that 
additional States and LEAs can draw on in building their own systems. 
The Department, therefore, proposes to require States to collect and 
publicly report information about these evaluation systems.
    Specifically, the Department is requiring that States describe, for 
each LEA in the State, the systems used to evaluate the performance of 
teachers and principals. Further, the Department proposes to require 
States to indicate, for each LEA in the State, whether the systems used 
to evaluate the performance of teachers and principals include student 
achievement outcomes or student growth data as an evaluation criterion.
    The level of effort required to respond to these requirements would 
likely vary depending on the types of teacher and principal evaluation 
systems in place in a given State or LEA. The Department believes that, 
if a system is in place at the State level, the response burden would 
be low, because the State will have the required information readily 
available. According to the National Council on Teacher Quality, 12 
States require LEAs to use a State-developed instrument to evaluate 
teachers or to develop an equivalent instrument that must be approved 
by the State.\13\ For these 12 States, the Department estimates that a 
total of 72 hours (6 hours per State) would be required to respond to 
these requirements, for a total cost, at $30 per hour, of $2,160. The 
2,632 LEAs located in these States would not be involved in the 
response to these requirements.
---------------------------------------------------------------------------

    \13\ State Teacher Policy Yearbook: 2008, page 68. http://www.nctq.org/stpy08/reports/stpy_national.pdf.
---------------------------------------------------------------------------

    In the 40 States that do not have statewide teacher and principal 
evaluation systems in place, the level of effort required would likely 
be significantly higher. For each of these States, the Department 
estimates that 360 hours would be required at the State level to 
develop and administer a survey of LEAs (including designing the survey 
instrument, disseminating it, providing training or other technical 
assistance to LEAs on completing the survey, collecting the data and 
other information, checking accuracy, and public reporting), which 
would amount to a total of 14,400 hours and a total estimated State 
cost of $432,000 (assuming, again, a cost per hour of $30). While one 
commenter asserted that a survey will not suffice to collect these data 
annually, the Department expects that a survey is all that would be 
necessary for a State to collect this information. The 12,368 LEAs 
located in these States would bear the cost of collecting and reporting 
the data to their States.
    For the purpose of the burden estimates in this section, the 
Department estimates that 75 percent of these LEAs (9,276) have 
centralized teacher and principal evaluation systems in place. For 
those LEAs, we estimate that 3 hours would be required to respond to 
these requirements. For the estimated 3,092 LEAs that do not have a 
centralized evaluation system in place, we estimate that 2 hours would 
be required because we expect that these systems are less complex than 
centralized systems. The Department, thus, estimates that LEAs would 
need to spend a total of 34,012 hours to respond to these proposed 
requirements at a total cost of $850,300. In the NPR, we invited 
commenters to provide information on the prevalence of these systems in 
LEAs (so that we could further refine our estimates) and on the 
potential costs of meeting the requirements for LEAs that have or do 
not have such a system, but we did not receive any comments on these 
issues. As a result, we are retaining the estimates that we included in 
the NPR for these metrics.
    The Department is also requiring States to provide, for each LEA in 
the State whose teachers and principals receive performance ratings or 
levels through an evaluation system, the number and percentage of 
teachers and principals rated at each performance rating or level, as 
well as a description of how each LEA uses results from those systems 
in decisions regarding teacher and principal development, compensation, 
promotion, retention, and removal. Finally, the Department is requiring 
States to indicate, for each LEA in the State whose teachers receive 
performance ratings or levels through an evaluation system, whether the 
number and percentage of teachers rated at each performance rating or 
level are publicly reported for each school in the LEA. One commenter 
expressed the belief that LEAs will have to develop Web sites to post 
information on their evaluation systems. The Department expects that 
many LEAs that make this information publicly available will choose to 
do so on their pre-existing Web site; if any LEAs currently do not have 
Web sites, they may create a Web site or may publicly report this 
information in another easily accessible format.
    We were unable to find nationally representative information on 
whether LEAs will have information on their teacher and principal 
evaluation systems readily available in a centralized database and, 
therefore, invited comment on this issue. Though at least one commenter 
asserted that the request was reasonable, many commenters argued that 
the cost and time to comply with these data requirements would far 
exceed the estimates in the NPR. One commenter directed us to a study 
by the New Teacher Project (NTP),\14\ which analyzed the teacher 
evaluation systems of a sample of 12 LEAs. Of those 12 LEAs, only 4 
tracked teacher evaluation results electronically. Although the NTP 
report examined only a small number of LEAs, which were not nationally 
representative, we base our cost estimates on this finding, as it is 
the only source of information available. Thus, we assume that 33 
percent of LEAs will have information on the teacher and principal 
evaluation results in a central database.\15\ Applying this percentage 
to the estimated 11,908 LEAs that have in place a centralized system to 
evaluate teacher and principal performance (which includes the 2,632 
LEAs in States with statewide systems, as well as the estimated 9,276 
LEAs in other States that have their own local systems), the Department 
estimates that 3,930 LEAs would need to spend 3 hours each to respond 
to these requirements for a total burden of

[[Page 58493]]

11,790 hours and $294,750. One commenter suggested that the Department 
include in this estimate the cost of LEAs participating in training 
from the State on how to respond to these requirements; this estimate 
of 3 hours includes 1 hour per LEA for such training. The Department 
downwardly revised the LEA-level estimate of burden for these LEAs from 
5 hours per LEA in the NPR to 3 hours per LEA because we are now 
assuming that these LEAs not only have this information available in 
the central office but also that the information is available 
electronically, which would further simplify the process.
---------------------------------------------------------------------------

    \14\ See http://widgeteffect.org/downloads/TheWidgetEffect.pdf.
    \15\ It is important to note that this study includes in its 
sample only medium-size and large LEAs and, therefore, that the 
actual percentage of LEAs with teacher and principal evaluation 
results in a central database may be lower than 33 percent. We also 
believe, however, that small LEAs with fewer teachers and principals 
would require less effort than a medium-size or large LEA to comply 
with these requirements.
---------------------------------------------------------------------------

    We estimate that each of the other 7,978 LEAs will require 
significantly more time to respond. One commenter suggested that we 
estimate LEA burden for the requirements regarding the number and 
percentage of teachers and principals rated at each performance rating 
or level by considering the number of teachers, assuming that all 
evaluation results would need to be entered and aggregated at the LEA 
level, which would require ten minutes per individual. This commenter 
also recommended that we use the estimate of 3.6 million public school 
teachers nationwide to determine the level of LEA effort required. We 
agree with this commenter's point that the estimate of LEA burden for 
these requirements should consider the number of teachers in the LEA; 
however, according to the Digest of Education Statistics, there are 
approximately 3.2 million teachers and 87,620 principals in public 
elementary and secondary schools.16 17 Based on this figure, 
we estimate that an average LEA employs 213 teachers and 6 principals. 
Applying this number of teachers and principals to the estimated 7,978 
LEAs nationwide that do not have this information electronically in a 
central system, we estimate that these LEAs will need to enter data for 
1,699,314 teachers and 47,868 principals into their existing personnel 
systems. Using the commenter's estimate that LEAs could enter 
information for 6 individuals per hour, we estimate that these LEAs 
would have a combined burden of 291,197 hours at a cost of $7,279,925.
---------------------------------------------------------------------------

    \16\ See http://nces.ed.gov/programs/digest/d08/tables/dt08_004.asp?referrer=list. The most recent data available is from 2006.
    \17\ See http://nces.ed.gov/programs/digest/d08/tables/dt08_086.asp. The most recent data available is for the 2003-04 school 
year.
---------------------------------------------------------------------------

    We further estimate that all 15,000 LEAs would each require 1 hour 
to describe how they use results from teacher and principal evaluation 
systems in decisions regarding teacher and principal development, 
compensation, promotion, retention, and removal.
    The Department, therefore, estimates the total LEA burden for these 
requirements to be 317,987 hours across the Nation at an estimated 
total cost of $7,949,675 (assuming a cost per hour of $25).
    States would then need to collect these data, most likely by 
including these items in the survey instrument that they will develop 
to respond to the other requirements in this section, and will then 
need to aggregate and publicly report the data on their Web site. We 
estimate that these activities will require 8 hours of effort per 
State, for a total burden of 416 hours at a cost of $12,480. We further 
estimate that it will cost each State $10,000 to establish and maintain 
a Web site to which it will post all of the data required by this 
notice, including the requirements in this section. While one commenter 
expressed concern for States with large numbers of LEAs, the 8-hour 
estimate reflects average burden across all States, including those 
with high and low numbers of LEAs.
    Many commenters reported that complying with the teacher and 
principal evaluation data requirements will significantly burden States 
and LEAs. One commenter emphasized that the commenter's State does not 
currently collect any of the information included in these 
requirements. Some commenters elaborated that collecting these data 
will require extensive communication and follow-up between States and 
LEAs. One commenter recommended that States be permitted to sample 
their LEAs, and another commenter suggested that, while the estimates 
may be fairly accurate, these data requirements will negatively affect 
a State's ability to complete the application within the required 
timeframe.
    The Department agrees that States and LEAs will be required to make 
an effort to meet these requirements, and that the level of effort will 
vary across the States and their LEAs. We believe that the availability 
of these data will benefit parents and their children and that the 
benefits of collecting and reporting this information outweigh the 
costs. Further, we believe that parents with children in every LEA 
across the Nation deserve to have access to this information and, 
therefore, decline to allow States or LEAs to sample their teachers and 
principals in responding to these requirements.
    Another commenter recommended that the Department identify the most 
effective teacher and principal evaluation systems and provide States 
with a tool for collecting the teacher and principal data. The 
Department may, in the future, assess teacher and principal evaluation 
systems, but does not believe State collection and reporting of data on 
their systems should await completion of such an effort.
    Two commenters expressed particular concern for the effort required 
of small, rural LEAs, but we expect that collecting this information 
will be a simple process for small LEAs (which typically operate few 
schools and employ few teachers and principals), so we do not provide 
separate estimates for them here. Lastly, two commenters contended that 
the estimates do not account for the data systems that LEAs will have 
to develop to collect this information. We assume that LEAs will add a 
data element to an existing data system and, therefore, do not believe 
that it is appropriate to assume the need for development of data 
systems for the purpose of these estimates.
    For more detailed estimates of costs for these requirements, please 
see the tables in the Paperwork Reduction Act of 1995 section of this 
notice.

State Data Systems

    Section 14005(d)(3) requires States to assure that they will 
establish a longitudinal data system that includes the elements 
described in section 6401(e)(2)(D) of the America COMPETES Act. To 
track State progress in this reform area, the Department requires each 
State to indicate which of the 12 elements are included in the State's 
statewide longitudinal data system. The costs of reporting this 
information should be minimal. Moreover, most States are already 
reporting information on ten of the 12 elements to the Data Quality 
Campaign, a national effort to encourage State policymakers to use 
high-quality education data to improve student achievement. The 
Department expects that States will be able to readily provide 
information on whether the two remaining elements are included in their 
data systems and that it should take little time for the States that 
have not been reporting to the Data Quality Campaign to provide 
information on their data systems. We, therefore, estimate that States 
would need only 2 hours to respond to this requirement, for a total 
level of effort of 104 hours at an estimated cost of $3,120.
    The Department is also requiring that States report whether the 
State provides student growth data on their current students and the 
students they taught in the previous year to, at a minimum, teachers of 
reading/language arts and

[[Page 58494]]

mathematics in grades in which the State administers assessments in 
those subjects in a manner that is timely and informs instructional 
programs. The Department believes that making such information 
available would help improve the quality of instruction and the quality 
of teacher evaluation and compensation systems. Under the State Plan 
section, we discuss the costs of developing systems for the provision 
of student growth data in all States. We are also requiring States to 
indicate whether the State provides teachers of reading/language arts 
and mathematics in grades in which the State administers assessments in 
those subjects with reports of individual teacher impact on student 
achievement on those assessments. The costs of merely publicly 
reporting on whether a State currently provides this information to 
teachers should be minimal. We estimate that each State would spend one 
hour to publicly report this information, for a total level of effort 
of 52 hours at a cost of $1,560.

State Assessments

    In response to the requirement in section 14005(d)(4)(A) of the 
ARRA that States enhance the quality of their student assessments, the 
Department requires that the States confirm certain existing data and 
other information and submit some new information about their 
assessment systems. Specifically, the Department requires each State to 
confirm the approval status, as determined by the Department, of the 
State's assessment system (with respect to reading/language arts, 
mathematics, and science assessments). In addition, States will confirm 
that their annual State Report Card (issued pursuant to the 
requirements of section 1111(h) of the ESEA) contains the most recent 
available State reading and mathematics NAEP results. The Department 
estimates that each State would require two hours to respond to these 
requirements, for a total cost of $3,120.
    Section 14005(d)(4)(B) requires States to assure that they will 
administer valid and reliable assessments for children with 
disabilities and limited English proficient students. To measure State 
progress on this assurance, the Department requires States to: confirm 
whether the State has developed and implemented valid and reliable 
alternate assessments for students with disabilities that have been 
approved by the Department; confirm whether the State's alternative 
assessments for students with disabilities, if approved by the 
Department, are based on grade-level, modified, or alternate academic 
achievement standards; indicate whether the State has completed, within 
the last two years, an analysis of the appropriateness and 
effectiveness of the accommodations it provides students with 
disabilities to ensure their meaningful participation in State 
assessments; indicate whether the State has completed, within the last 
two years, an analysis of the appropriateness and effectiveness of the 
accommodations it provides limited English proficient students to 
ensure their meaningful participation in State assessments; and confirm 
whether the State provides native language versions of State 
assessments for limited English proficient students. To respond to 
these five indicators, the Department estimates that the 50 States, the 
District of Columbia, and Puerto Rico would each require five hours, 
for a total cost of $7,800.
    In addition, the Department requires that States confirm the number 
and percentage of students with disabilities and limited English 
proficient students who are included in State reading/language arts and 
mathematics assessments. The Department expects that each State would, 
on average, require one hour of staff time to complete this effort, at 
a cost of $30 per hour. The burden estimated for this requirement is 
minimal because the States will have already submitted this information 
to the Department through the EDFacts system. For the 50 States, the 
District of Columbia, and Puerto Rico, the total estimated level of 
effort would be 52 hours at cost of $1,560.

High School and Postsecondary Success

    Section 14005(d)(4)(C) of the ARRA requires States to assure, in 
their Stabilization Fund applications, that they take steps to improve 
their State academic content standards and student academic achievement 
standards consistent with section 6401(e)(1)(A)(ii) of the COMPETES 
Act, which calls for States to identify and make any necessary changes 
to their secondary school graduation requirements, academic content 
standards, academic achievement standards, and the assessments students 
take preceding graduation from secondary school in order to align those 
requirements, standards, and assessments with the knowledge and skills 
necessary for success in academic credit-bearing coursework in 
postsecondary education, in the 21st century workforce, and in the 
Armed Forces without the need for remediation. Several of the 
indicators and descriptors in this notice are aligned with this 
provision of the America COMPETES Act.
    First, the Department requires each State to publicly report, for 
the State and each LEA and high school in the State and, at each of 
these levels, by student subgroup,\18\ the number and percentage of 
students who graduate from high school as determined using the four-
year adjusted cohort graduation rate. The Department believes that 
State efforts to comply with the Department's October 29, 2008 
regulation requiring the use of a four-year adjusted cohort graduation 
rate in the determination of adequate yearly progress under Title I of 
the ESEA are now underway (see 34 CFR 200.19(b)(1)(i)). Some additional 
effort would be required to collect and report these data for all 
schools as the current regulations apply only to Title I schools.
---------------------------------------------------------------------------

    \18\ As noted earlier in this notice, the student subgroups 
include: economically disadvantaged students, students from major 
racial and ethnic groups, students with limited English proficiency, 
and students with disabilities.
---------------------------------------------------------------------------

    Based on the Data Quality Campaign's 2008 survey of the 50 States 
and the District of Columbia, which found that 42 States have the 
capacity to calculate the National Governors Association longitudinal 
graduation rate,\19\ the Department believes that most States are well-
situated to collect and publicly report these data, or have the 
processes underway to make such reporting possible by September 30, 
2011. In fulfillment of the requirement, the Department estimates that 
States would need to distribute to non-Title I LEAs the survey 
instrument they are using to collect this information from Title I LEAs 
and to input the data from these surveys, which would require an 
estimated 8 hours per State. The new LEA burden to respond to this 
indicator would be limited to the approximately 976 LEAs that do not 
receive Title I funds.\20\ The Department estimates that these LEAs 
would spend an average of 40 hours to respond to this indicator for a 
total LEA effort of 39,040 hours. The total estimated cost is, 
therefore, $976,000.
---------------------------------------------------------------------------

    \19\ http://www.dataqualitycampaign.org/survey.
    \20\ According to data States submitted to the Department 
through the Consolidated State Performance Report 2007-08, there are 
a total of 15,016 LEAs across the Nation, 14,040 of which receive 
Title I, Part A funds.
---------------------------------------------------------------------------

    In addition, the Department is requiring States to publicly report, 
for the State, for each LEA in the State, for each high school in the 
State and, at each of these levels, by student subgroup, the number and 
percentage of students who graduate from high school consistent with 34 
CFR 200.19(b)(1)(i) who enroll in an IHE within 16 months of receiving 
a regular high school diploma and, of those students who

[[Page 58495]]

enroll in a public IHE within the State, the number and percentage who 
complete at least one year's worth of college credit (applicable to a 
degree) within two years of enrollment in the IHE. The requirements 
would entail considerable coordination among high schools, LEAs, SEAs, 
and IHEs. The Department expects that SEAs would have to develop a 
system to make this data collection and sharing possible, which they 
could at least partially achieve by establishing a longitudinal data 
system that includes the elements described in section 6401(e)(2)(D) of 
the COMPETES Act. As discussed earlier, section 14005(d)(3) of the ARRA 
requires States to assure, in their Stabilization Fund application, 
that they will establish such a data system.
    One commenter expressed concern that, according to the 2008 Data 
Quality Campaign survey, only 28 States reported the ability to share 
data with postsecondary institutions. While that may be true, several 
of the data elements described in section 6401(e)(2)(D) of the COMPETES 
Act require data systems to include linkages to postsecondary 
institutions, and States assured that they would implement a data 
system with these elements in place when they applied for Phase I 
Stabilization funds. Several commenters contended that many LEAs 
currently lack the infrastructure and data collection systems necessary 
to comply with the requirements proposed in the NPR. One commenter 
explained that many of the requirements presume that States already 
have P-20 data systems in place. These commenters correctly state that 
we do not include the costs of establishing such a system in the costs 
of these requirements. This exclusion is warranted because the 
requirement to establish such a system flows from the ARRA, not from 
these requirements.\21\ In addition, States will be able to use 
Government Services funds that they receive as part of their 
Stabilization allocation to support these efforts, and may compete for 
funds from the Department's Statewide Longitudinal Data Systems Grant 
program. Further, the efforts of the National Student Clearinghouse 
(NSC), a non-profit organization that provides student enrollment and 
degree verification services, demonstrate that there is significant 
interest in information sharing between IHEs and LEAs; more than 3,300 
colleges (which enroll over 92 percent of college students) and 
hundreds of LEAs participate in the NSC's efforts. The Department 
expects that LEAs and IHEs that currently provide data to this system 
may require less effort to respond to this requirement.
---------------------------------------------------------------------------

    \21\ We do acknowledge, however, that although the statute does 
not set a deadline for State establishment of the required data 
systems, paragraph (c)(2)(ii)(A) under the section of this notice 
entitled ``State Plans'' would require States to have in place 
statewide longitudinal data systems that fully include all 12 
elements described in the COMPETES Act by September 30, 2011. 
Putting a full system in place by that date might increase costs to 
States or, alternatively, might reduce costs (if the more rapid 
establishment of a system results in efficiencies).
---------------------------------------------------------------------------

    Two commenters requested that States be allowed to use the NSC to 
reduce burden; however, one commenter reported that use of the NSC 
would increase the cost of meeting these requirements. One commenter 
noted that the NSC collects only enrollment data. It is important to 
note that the Department mentions the NSC as a potential resource, but 
that States and IHEs are not encouraged or required to use it to meet 
these requirements.
    With respect to the requirement on publicly reporting postsecondary 
enrollment, the Department expects that LEAs will need to enter, into 
their State's statewide longitudinal data system, data on each high-
school graduate's plans after high school, including the IHE where the 
student intends to enroll, if applicable. According to the Digest of 
Education Statistics, approximately 2,492,000 students who graduated 
from public high schools enrolled in IHEs as first-time freshmen in 
fall 2007.\22\ Holding that number constant, the Department estimates 
that LEAs will be able to enter data for these students at a pace of 20 
students per hour which will result in a total level of LEA effort of 
124,600 hours at a cost of $3,115,000. One commenter correctly pointed 
out that the tables in the Paperwork Reduction Act of 1995 section in 
the NPR did not include this $3,115,000 in LEA burden; the Department 
has added this item to the table in this notice.
---------------------------------------------------------------------------

    \22\ According to the Digest of Education Statistics, 2008, 
almost 2.8 million first-time freshmen enrolled in IHEs in fall 
2007. See http://nces.ed.gov/programs/digest/d08/tables/dt08_198.asp. Also according to the Digest, in fall 2005, 6,073,240 
students were enrolled in private elementary and secondary schools. 
At that time, enrollment in public elementary and secondary schools 
was 49,113,298. Extrapolating from those data, the Department 
estimates that 11 percent of all first-time postsecondary students 
graduated from private schools. See http://nces.ed.gov/programs/digest/d08/tables/dt08_058.asp.
---------------------------------------------------------------------------

    The State will then likely need to request that each IHE in the 
State confirm a student's enrollment, using the statewide longitudinal 
data system to obtain data on students who intended to enroll within 
the State. Based on data from the 2006 Integrated Postsecondary 
Education Data System (IPEDS), Spring 2007,\23\ the Department 
estimates that 2,018,520 first-time freshmen (81 percent of all first-
time freshmen who graduated from public high schools) enroll in IHEs in 
their home State. The Department estimates that IHEs will be able to 
confirm enrollment for 20 students per hour, for a total of 100,926 
hours of IHE effort at a total cost of $2,523,150 (assuming a cost of 
$25 per hour).\24\
---------------------------------------------------------------------------

    \23\ http://nces.ed.gov/programs/digest/d08/tables/dt08_223.asp.
    \24\ Note that a table in the Paperwork Reduction Act of 1995 
section of this notice provides the burden estimates by IHE, but 
that this narrative provides national estimates using the total 
number of students included in the data requirement.
---------------------------------------------------------------------------

    States will also likely need to request that IHEs outside the State 
confirm the enrollment of students who indicated that they would enroll 
in those institutions. Again, based on data from the 2006 IPEDS, Spring 
2007, the Department estimates that 473,480 students who graduate from 
public high schools each year enroll in IHEs in States outside their 
home State. The Department estimates that it will take States 30 
minutes per student to complete this process, including contacting out-
of-State IHEs, obtaining the necessary information from them, and 
including data on those students in their public reports. One commenter 
argued that the estimate provided in the NPR accounts only for the data 
to be entered, whereas the burden relates more to obtaining the 
information rather than entering the data. However, our estimates 
include the effort involved in obtaining the data as well as entering 
it into the system. This element of the requirement, therefore, will 
result in a national total of 236,740 hours of State effort at a total 
cost of $7,102,200. As with students who enroll in IHEs in their home 
State, the Department estimates that IHEs will be able to confirm 
enrollment for 20 students per hour, for a total of 23,674 hours of IHE 
effort at a total cost of $591,850.
    Finally, to meet the requirement that they publicly report the 
number of students who enroll in IHEs, States will need to aggregate 
the data received from all IHEs and will then need to run analyses and 
publicly report the data for the State, for each LEA, for each high 
school and, at each of these levels, by student subgroup. The 
Department estimates that each State will need 40 hours to conduct 
these analyses and publicly report these data, for a total State burden 
of 2,080 hours at a cost of $62,400.
    The requirement that States publicly report the number of students 
enrolling

[[Page 58496]]

in a public, in-State IHE who complete at least one year's worth of 
college credit applicable toward a degree within two years of 
enrollment at the IHE will also entail a collaborative process between 
SEAs and IHEs. Again, based on data from the Digest of Education 
Statistics, the Department estimates that 2,018,520 first-time freshmen 
enroll in IHEs in their home State. Based on additional data from the 
Digest of Education Statistics, we further estimate that 74 percent of 
students enrolled in degree-granting IHEs are enrolled in public 
IHEs.\25\ We therefore estimate that 1,493,705 first-time freshmen 
enroll in public IHEs in their home State. Further, the Department 
estimates that, once a State has established a system for the 
collection and reporting of these data, IHEs will be able to enter data 
for 20 students an hour; thus, the total estimated level of effort to 
respond to this requirement will be approximately 74,685 hours of IHE 
effort at an estimated cost of $1,867,131, assuming a cost of $25 per 
hour.
---------------------------------------------------------------------------

    \25\ See http://nces.ed.gov/programs/digest/d08/tables/dt08_192.asp.
---------------------------------------------------------------------------

    Finally, as with the previous indicator, States will need to 
aggregate the data received from all IHEs and will then need to run 
analyses and publicly report the data for the State, LEA, and school 
levels and at each of these levels, by student subgroup. The Department 
estimates that each State will need 40 hours to conduct these analyses 
and publicly report these data, for a total State burden of 2,080 hours 
at a cost of $62,400.
    Many commenters opposed the proposed requirements to collect 
information on high-school student college enrollment and course 
completion, particularly for those students enrolling in and completing 
courses at out-of-State IHEs. The Department strongly believes that the 
indicators in this section provide the best gauge for the extent to 
which students graduate from high school in four years with a regular 
high school diploma and continue on to pursue a college education. This 
information should be a central factor in evaluating the effectiveness 
of high schools in preparing young people for successful futures. 
However, to reduce the overall burden of complying with these 
requirements, the Department has removed the requirement that course 
completion data for students enrolling out-of-State be collected and 
reported.
    Several commenters asserted that the cost and time to comply with 
the college enrollment and course completion data requirements would 
far exceed the estimates in the notice, but they did not provide 
alternate estimates. Further, one commenter questioned whether or not, 
after requiring States to invest significant cost and time building the 
capacity to collect these data, the Department would require States to 
submit them beyond 2011; the Department is not requiring States to 
submit data beyond 2011 at this time. One commenter detailed the 
necessary one-time development and planning, and annual, activities 
that collection of these data would require and contended that were not 
accounted for in the Department's cost estimate. The Department 
considers these costs to be requirements of maintaining a high-quality 
longitudinal data system and, therefore, does not include the effort 
involved in these steps in the burden estimates for these requirements.

Supporting Struggling Schools

    A key goal of the ARRA is to ensure that States and LEAs provide 
targeted, intensive support and effective interventions to turn around 
the persistently lowest-achieving schools in the State. Section 
14005(d)(5) requires States to ensure compliance with the Title I 
requirements in this area. To track State progress, the Department is 
requiring States to provide, for each LEA in the State and aggregated 
at the State level, the number and percentage of schools in 
improvement, corrective action, or restructuring that have made 
progress on State assessments in reading/language arts and mathematics 
in the last year, and, for the State, in the ``all students'' category 
and for each student subgroup (as under section 1111(b)(2)(C)(v) of the 
ESEA), and, of the Title I schools in improvement, corrective action, 
or restructuring, the number and identity of the persistently lowest-
achieving schools as defined by the State. The State is also required 
to provide the definition that it uses to identify its ``persistently 
lowest-achieving schools.'' States are also required to publicly report 
the number and identity of their Title I schools in improvement, 
corrective action, or restructuring that are identified as persistently 
lowest-achieving and, of those schools, the number and identity of 
schools that have been turned around, restarted, closed, or transformed 
in the last year.
    The Department believes that States will already have available the 
data needed to report on the indicators related to the total number and 
percentage of schools in improvement, corrective action, or 
restructuring that have made progress on State assessments, although 
they might need to run new analyses of the data. However, the 
Department expects that States will have to collect new data on the 
schools in improvement, corrective action, or restructuring (in general 
and in the persistently lowest-achieving schools) that have been turned 
around, restarted, closed, or transformed. (In addition, the State will 
need to define the term ``persistently lowest-achieving schools.'') We 
estimate that this data collection will entail two hours of effort in 
each of the 1,173 LEAs (the number of LEAs that, according to data 
reported to EDFacts, had at least one school in improvement, corrective 
action, or restructuring in the 2007-08 school year). As a result, the 
Department estimates that the total LEA burden for this requirement 
will be 2,346 hours at a cost of $58,650. States will then need to 
aggregate these data, in addition to the effort they will spend 
responding to the other indicators that relate to struggling schools. 
The Department estimates that each State will require 25 hours of 
effort to respond to these requirements, for a total cost of $39,000.
    In addition, the Department is requiring States to provide, for the 
State, the number and identity of the secondary schools that are 
eligible for, but do not receive, Title I funds, that are identified as 
persistently lowest-achieving schools, and, of these schools, the 
number and identity of schools that have been turned around, restarted, 
closed, or transformed in the last year. The Department expects that 
some, but not all, States have the data required to determine the 
identity of secondary schools that are eligible for, but do not 
receive, Title I funds, but that they may have to run new analyses of 
the data to determine which of these schools have been turned around, 
restarted, closed, or transformed in the last year. Other States may 
have to include an item in the LEA survey that they will be 
distributing to respond to several of these requirements. The 
Department estimates that each State will require an average of 16 
hours of effort to respond to these two requirements, for a total cost 
of $24,960. We further estimate that the 1,173 affected LEAs will need 
a total of 4 hours to respond to these two survey items.
    Two commenters asserted that the cost and time to comply with the 
supporting struggling schools data requirements would exceed the 
estimates in the NPR. The Department declines to adjust these burden 
estimates as these commenters did not provide specific recommended 
revisions.

[[Page 58497]]

Charter Schools

    The Department believes that the creation and maintenance of high-
quality charter schools is a key strategy for promoting successful 
models of school reform. To determine the level of State effort in this 
area, the Department proposes to require States to provide, at the 
State level and, if applicable, for each LEA in the State, the number 
of charter schools that are currently permitted to operate under State 
law and the number that are currently operating. We expect that this 
information will be readily available and that States will need only a 
total of one hour to respond to these two requirements.
    In addition, the Department will require States to provide, for the 
State and for each LEA in the State that operates charter schools, the 
number and percentage (including numerator and denominator) of charter 
schools that have made progress on State assessments in reading/
language arts and mathematics in the last year. Finally, the Department 
is requiring States to provide, for the State and for each LEA in the 
State that operates charter schools, the number and identity of charter 
schools that have closed (including schools that were not reauthorized 
to operate) within each of the last five years and to indicate, for 
each such school, whether the closure was for financial, enrollment, 
academic, or other reasons. The Department believes that SEAs will 
likely also have this information readily available (although some may 
need to obtain additional information from their LEAs) and will need 
eight hours to publicly report it. The Department assumes that the 
effort to respond to these requirements will be limited to the 42 
States (including the District of Columbia and Puerto Rico) that allow 
charter schools. The Department thus estimates that the State effort 
required to respond to these indicators will total 336 hours at a cost 
of $10,080.

State Plans

    These requirements require States, as a condition of receiving 
their remaining funding for the Stabilization program, to submit a plan 
to the Department that describes the State's current ability to fully 
collect and publicly report data for the indicators and descriptors at 
least annually. If the State is currently able to fully collect and 
publicly report the data or other information required by the indicator 
or descriptor, the State must provide the most recent data or 
information with its plan. If a State is not currently able to fully 
collect and publicly report the required data or other information, the 
plan must describe the process that the State will undertake in order 
to have the means to fully collect and publicly report such data or 
information as soon as possible but no later than September 30, 2011.
    As a part of this plan, the State will need to establish milestones 
and a date by which the State expects to reach each milestone, describe 
the nature and frequency of publicly available reports that the State 
will publish on its progress, and identify the amount and source (i.e., 
whether Federal, State or local) of funds that will support the efforts 
necessary to collect and publicly report the data or information. The 
level of effort involved in preparing these elements of the plan will 
vary from State to State based on individual State progress in each 
reform area. For example, according to the Data Quality Campaign's 2008 
survey of the 50 States and the District of Columbia, 48 States have 
``a unique statewide student identifier that connects student data 
across key databases across years,'' 28 States have the ``[a]bility to 
match student-level pre-K-12 and higher education data,'' and 21 States 
have a ``statewide teacher identifier with a teacher-student match.'' 
States that have taken these steps have built a foundation for the 
efforts that will be necessary to meet some of the requirements and 
will likely need to spend less time completing these elements of their 
plans. The Department estimates that, in total, each of the 15 States 
that currently provides student growth information to teachers will 
need an average of 439 hours to prepare these sections of the plan, and 
that the other 37 States will require 547 hours; thus, the total hours 
that will be necessary to meet this requirement for the 50 States, the 
District of Columbia, and Puerto Rico would be 26,824 hours, for a 
total cost of $804,720. For more detailed estimates of costs for each 
specific requirement, please see the tables in the Paperwork Reduction 
Act of 1995 section of this notice.
    The final requirements provide for States to include in their plan 
under this program the State's Teacher Equity Plan if it was updated to 
fully reflect the steps the State is currently taking to ensure that 
students from low-income families and minority students are not taught 
at higher rates than other students by inexperienced, unqualified, or 
out-of-field teachers. If the State has not updated the State's Teacher 
Equity Plan to fully reflect the steps the State is currently taking to 
ensure that students from low-income families and minority students are 
not taught at higher rates than other students by inexperienced, 
unqualified, or out-of-field teachers, the State must do so as soon as 
possible but no later than September 30, 2011. Accordingly, the State 
must provide the date by which it will make its updated Teacher Equity 
Plan available to the public. The Department assumes that all States 
will need to revise their plan to reflect efforts they have made in 
this area as a result of the funds available to them through this 
program and estimates that the revisions will take 80 hours per State. 
The total State effort involved in meeting this requirement is, 
therefore, 4,160 hours at a total cost of $124,800 (assuming $30 per 
hour of State effort).
    In addition, as part of the planning requirements, the Department 
is requiring each State to indicate whether it provides student growth 
data to, at a minimum, teachers of reading/language arts and 
mathematics in grades in which the State administers assessments in 
those subjects, in a manner that is timely and informs instructional 
programs and, if the State does not currently do so, to describe a 
process and timeline for doing so by September 30, 2011. The Department 
understands that at least 15 States currently provide this type of 
information to their teachers; the 15 States have been approved to use 
``growth models'' to inform determinations of adequate yearly progress 
under the ESEA. However, additional States are implementing growth 
models for State-level accountability purposes, and most other States 
that are developing State longitudinal data systems have included 
teacher identifiers in those systems and, thus, have part of the 
infrastructure to produce and report these data.
    The Department contacted several experts in an effort to accurately 
estimate the State cost of calculating student growth data. According 
to these experts, the State cost is not a function of the student 
enrollment in a State; the two drivers of cost are an alignment 
analysis of the proficiency levels of the State assessments and the new 
programming required in the State assessment results database to enable 
the State to generate growth estimates for individual students. These 
experts estimated that the cost per State would range from $100,000 to 
$500,000. Using these figures, the Department estimates that the total 
cost across the 37 States that the Department has not approved to 
implement growth models would range from $3,700,000 to $18,500,000.
    In the NPR, the Department estimated that the State cost of 
estimating individual teacher impact on student achievement, including 
the cost of

[[Page 58498]]

analyzing the data, verifying with teachers that the correct teacher-
subject-student connection is made in the system, and publishing the 
information online in a user-friendly format would be 2 dollars per 
student. Two commenters suggested that the cost of providing reading/
language arts and mathematics teachers with student performance data is 
closer to $4 per student rather than the $2 per student estimated in 
the NPR, but these commenters included the cost of the data system in 
the $4 per student figure. As noted earlier, these estimates do not 
include the cost of the data system as that requirement flows from the 
ARRA, not these requirements. As a result, the Department considers 
that the estimate of $2 per affected student is a fair estimate of the 
cost of implementing the proposed requirement.
    In addition, the Department estimated that 30 percent of all K-12 
public school teachers are teaching reading/language arts or 
mathematics in the grades in which the State administers assessments 
and used this assumption to estimate that the State assessment results 
for approximately 14,790,000 students (30 percent of all students 
enrolled in public elementary and secondary schools) would be included 
in the calculations necessary for States to meet this requirement.\26\ 
Based on data on public elementary and secondary student enrollment by 
grade, however, the Department now estimates that approximately 
25,836,000 students are in tested grades.\27\ Applying the revised 
number of students in tested grades to this estimate, the total State 
cost of this requirement would have been $51,672,000.
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    \26\ According to the Digest of Education Statistics, 49,298,945 
students were enrolled in public elementary and secondary schools in 
fall 2006. See http://nces.ed.gov/programs/digest/d08/tables/dt08_033.asp.
    \27\ See http://nces.ed.gov/programs/digest/d08/tables/dt08_034.asp. To determine the number of students in tested grades, we 
used the total number of public school students enrolled in grades 3 
through 8, as well as grade 10, in fall of 2006.
---------------------------------------------------------------------------

    In the interest of reducing the overall costs of these 
requirements, the Department has decided to require States to provide 
(in a manner that is timely and informs instructional programs) student 
growth data, rather than estimates of individual teacher impact on 
student achievement to, at a minimum, teachers of reading/language arts 
and mathematics in grades in which the State administers assessments in 
those subjects. The Department estimates that this change from the 
proposed to the final requirement in this section reduces the State 
burden by at least $34,000,000 and up to almost $49,000,000 (from 
$52,672,000 if we had required States to provide teachers with 
estimates of their impact, to between $3,700,000 and $18,500,000 now 
that we have changed the requirement to have States provide teachers 
with student growth data).
    The Department is, however, requiring States to indicate whether 
they provide teachers of reading/language arts and mathematics in 
grades in which the State administers assessments in those subjects 
with reports of individual teacher impact on student achievement on 
those assessments, and, if the State does not provide those teachers 
with such reports, describe the State's process and timeline for 
developing and implementing the means to provide those teachers with 
such reports, including the milestones that the State establishes 
toward developing and implementing those means, the date by which the 
State expects to reach each milestone, and any obstacles that may 
prevent the State from developing and implementing those means. In 
addition, we are requiring States to describe the nature and frequency 
of reports that the State will provide to the public regarding its 
progress in developing and implementing those means and the amount of 
funds the State is using or will use to develop and implement those 
means, and whether the funds are or will be Federal, State, or local 
funds. We estimate that these sections of the State plan will require 
an average of 129 hours for States to complete at a cost per State of 
$3,870. These amounts are included in the total estimated State burden 
of completing the plan.
    The Department understands that an important element of State 
efforts to inform teachers of the estimated impact of their teaching on 
student achievement is providing professional development for 
principals and teachers on the interpretation and use of those data in 
raising student achievement. However, since the planning requirements 
would not require States to provide this professional development, we 
have not included its cost in the estimated costs of these 
requirements.
    In addition, the Department is requiring States to describe in 
their plans the following: The entities responsible for the 
development, execution, and oversight of the plan; the agencies or 
organizations that will provide any technical assistance or other 
support that is necessary; the overall budget for the development, 
execution, and oversight of the plan; the processes that the State 
employs to review and verify the required data and other information; 
and the processes the State employs to ensure that, consistent with 34 
CFR 99.31(b), the required data and other information are not made 
publicly available in a manner that personally identifies students, 
where applicable. The Department estimates that this management and 
oversight section of the plan will require 80 hours per State, for a 
total national estimate of 4,160 hours at a cost of $124,800. The total 
estimated cost to States of preparing the plans is, thus, $742,560.

Total Estimated Costs

    The Department estimates that the total burden of responding to 
these requirements will be 294,076 hours and between $13,042,280 and 
$27,842,280 for SEAs, 522,677 hours and $13,066,925 for LEAs, and 
199,285 hours and $4,982,131 for IHEs, for a total burden of 1,016,038 
hours at a cost of between $31,091,336 and $45,891,336. Several 
commenters argued that the cost and time to comply with the data 
requirements would far exceed the estimates in the notice. Another 
commenter asserted that the Department underestimated the burden for 
the writing of a State plan, and another that the Department 
underestimated the burden for preparing the application. As noted 
elsewhere in this section of the notice, we revised our estimates of 
the burden involved in responding to Indicators (a)(4) and (a)(7). As 
these particular commenters did not provide alternate estimates of the 
effort involved with drafting a State plan or completing the 
application, we decline to revise our estimates of those requirements. 
Many commenters expressed concern that the estimates did not account 
for the development of or enhancements to current State and LEA data 
systems and software necessary to collect and report the data. We 
believe, however, that our estimates include the effort involved with 
collecting and reporting the data, and have added the estimate that 
States would need to spend an average of $10,000 to develop and 
maintain a Web site on which to post this information.

Benefits

    The principal benefits of the requirements are those resulting from 
the reporting and public availability of information on each State's 
progress in the four reform areas described in the ARRA. The Department 
believes that the information gathered and reported as a result of 
these requirements will improve public accountability for performance, 
help States, LEAs, and schools learn from one another and

[[Page 58499]]

make improvements in what they are doing, and inform the ESEA 
reauthorization process.
    A second major benefit is that better public information on State 
and local progress in the four reform areas will likely spur more rapid 
progress on those reforms, because States and LEAs that appear to be 
lagging in one or more areas may see a need to redouble their efforts. 
The Department believes that more rapid progress on the essential 
educational reforms will have major benefits nationally, and that these 
reforms have the potential to drive dramatic improvements in student 
outcomes.
    For example, statewide longitudinal data systems are essential 
tools in advancing education reform. With these systems in place, 
States can use this data to evaluate the effectiveness of specific 
interventions, schools, principals, and teachers by tracking individual 
student achievement, high-school graduation, and postsecondary 
enrollment and credit. They can, for example, track the academic 
achievement of individual students over time, even if those students 
change schools within the State during the course of their education. 
By analyzing this information, decision-makers can determine if a 
student's ``achievement trajectory'' will result in his or her being 
college- or career-ready and can better target services based on the 
student's academic needs.\28\
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    \28\ For example, see http://dataqualitycampaign.org/files/publications-dqc_academic_growth-100908.pdf and http://www.dataqualitycampaign.org/files/Meetings-DQC_Quarterly_Issue_Brief_092506.pdf.
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    The Department also believes that States' implementation of these 
requirements will lead to more widespread development and 
implementation of better teacher and principal evaluation systems. In 
particular, the availability of accurate, complete, and valid 
achievement data is essential to implementing better systems of teacher 
and principal evaluation. Value-added models, for example, can provide 
an objective estimate of the impact of teachers on student learning and 
achievement.\29\ Further, they can be used by schools, LEAs, or States 
to reward excellence in teaching or school leadership, as a component 
of performance-based compensation systems, or to identify schools in 
need of improvement or teachers who may require additional training or 
professional development.\30\
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    \29\ See: Braun, Henry I. Using Student Progress To Evaluate 
Teachers: A Primer on Value-Added Models. Educational Testing 
Service, Policy Information Center, 2005; Marsh, Julie A.; Pane, 
John F.; Hamilton, Laura S. Making Sense of Data-Driven Decision 
Making in Education: Evidence from Recent RAND Research. Santa 
Monica, CA: RAND Corporation, 2006; and Sanders, William L. ``Value-
Added Assessment from Student Achievement Data: Opportunities and 
Hurdles.'' Journal of Personnel Evaluation in Education, Vol. 14, 
No. 4, p. 329-339, 2000.
    \30\ Center for Educator Compensation Reform: http://cecr.ed.gov/.
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    A few commenters questioned the utility of the data to be 
collected. Specifically, one commenter noted that lack of context on 
teacher/principal evaluation systems will render that data minimally 
meaningful to the end user. Another commenter cautioned that 
inconsistencies between States limit the comparability of the data and 
effectively reduce the value of data collection efforts. A third 
commenter argued more generally that, while data-driven decision making 
constitutes a priority for the commenter's State, much of the data 
required would not contribute to improved educational outcomes for 
students and, in fact, would divert attention from developing the 
infrastructure and relationships necessary to improve education. The 
Department continues to believe, however, that the requirements will 
have additional benefits to the extent that they provide States with 
incentives to address inequities in the distribution of effective 
teachers, improve the quality of State assessments, and undergo 
intensive efforts to improve struggling schools. Numerous studies 
document the substantial impact of improved teaching on educational 
outcomes and the need to take action to turn around the lowest-
performing schools, including high schools (and their feeder middle 
schools) that enroll a disproportionate number of the students who fail 
to complete a high-school education and receive a regular high-school 
diploma. The Department believes that more widespread adoption of these 
reforms would have a significant, positive impact on student 
achievement.
    Although these benefits are not easily quantified, the Department 
believes they will exceed the projected costs.

Accounting Statement

    As required by OMB Circular A-4 (available at http://www.Whitehouse.gov/omb/Circulars/a004/a-4.pdf), in the following table, 
we have prepared an accounting statement showing the classification of 
the expenditures associated with the provisions of this regulatory 
action. This table provides our best estimate of the Federal payments 
to be made to States under this program as a result of this regulatory 
action. Expenditures are classified as transfers to States.

  Table--Accounting Statement Classification of Estimated Expenditures
------------------------------------------------------------------------
                 Category                             Transfers
------------------------------------------------------------------------
Annual Monetized Transfers................  $11,500,425,885.
From Whom to Whom.........................  Federal Government to
                                             States.
------------------------------------------------------------------------

    The Stabilization program provides approximately $48.6 billion in 
formula grants to States.\31\ As previously noted, the Department is 
awarding Stabilization program funds in two phases. In the first phase, 
the Department awarded 67 percent of a State's Education Stabilization 
Fund allocation, unless the State demonstrated that additional funds 
were required to restore fiscal year 2009 State support for education, 
in which case the Department awarded the State up to 90 percent of that 
allocation. In addition, the Department awarded 100 percent of each 
State's Government Services Fund allocation in Phase I. The Department 
will award the remainder of a State's Education Stabilization Fund 
allocation in the second phase. Approximately $11.5 billion will be 
available in Phase II.
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    \31\ A table listing the allocations to States under the 
Stabilization program is available at: http://www.ed.gov/programs/statestabilization/funding.html.
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Paperwork Reduction Act of 1995

    This notice contains information collection requirements that are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The 
Department has received emergency approval for the information 
collections described below under Information Collection Reference 
Number 200910-1810-003.
    A description of the specific information collection requirements 
is provided in the following tables along with estimates of the annual 
recordkeeping burden for these requirements. Included in an estimate is 
the time for collecting and tracking data, maintaining records, 
calculations, and reporting. The first table presents the estimated 
indicators burden for SEAs, the second table presents the estimated 
indicators burden for LEAs, the third table presents the estimated 
indicators burden for IHEs, and the fourth table presents the estimated 
State plan burden for SEAs.
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Regulatory Flexibility Act Certification

    The Secretary certifies that this regulatory action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities that this regulatory action will affect are small 
LEAs receiving funds under this program and small IHEs.
    This regulatory action will not have a significant economic impact 
on small LEAs because they will be able to meet

[[Page 58525]]

the costs of compliance with this regulatory action using the funds 
provided under this program.
    With respect to small IHEs, the U.S. Small Business Administration 
Size Standards define these institutions as ``small entities'' if they 
are for-profit or nonprofit institutions with total annual revenue 
below $5,000,000 or if they are institutions controlled by small 
governmental jurisdictions, which are comprised of cities, counties, 
towns, townships, villages, school districts, or special districts, 
with a population of less than 50,000. Based on data from the 
Department's Integrated Postsecondary Education Data System (IPEDS), up 
to 532 small IHEs with revenues of less than $5 million may be affected 
by this requirement; only 100 of these IHEs are public. These small 
IHEs represent only 15 percent of degree-granting IHEs. In addition, 
only 161,155 students (0.7 percent) enrolled in degree-granting IHEs in 
fall 2007 attended these small institutions; just 60,391 of these 
students are enrolled in small, degree-granting public IHEs. As the 
burden for indicators (c)(11) and (c)(12) is driven by the number of 
students for whom IHEs would be required to submit data, small IHEs 
will require significantly less effort to adhere to these requirements 
than will be the case for larger IHEs. Based on IPEDS data, the 
Department estimates that 24,517 of these students are first-time 
freshmen. As stated earlier in the Summary of Costs and Benefits 
section of this notice, the Department estimates that, as required by 
indicator (c)(11), IHEs will be able to confirm the enrollment of 20 
first-time freshmen per hour. Applying this estimate to the estimated 
number of first-time freshmen at small IHEs, the Department estimates 
that these IHEs will need to spend 1,226 hours to respond to this 
requirement at a total cost of $30,650 (assuming a cost of $25 per 
hour).
    The effort involved in reporting the number of students enrolling 
in a public IHE in their home State who complete at least one year's 
worth of college credit applicable toward a degree within two years as 
required by indicator (c)(12) will also apply to small IHEs, but will 
be limited to students who enroll in public IHEs in their home State. 
As discussed earlier in the Summary of Costs and Benefits section of 
this notice, the Department estimates that 81 percent of first-time 
freshmen who graduate from public high schools enroll in IHEs in their 
home State. Applying this percentage to the estimated number of first-
time freshmen enrolled in small public IHEs (9,187), the Department 
estimates that small IHEs will be required to report credit completion 
data for a total of 7,442 students. For this requirement, the 
Department also estimates that IHEs will be able to report the credit 
completion status of 20 first-time freshmen per hour. Again, applying 
this data entry rate to the estimated number of first-time freshmen at 
small public IHEs in their home State, the Department estimates that 
these IHEs will need to spend 372 hours to respond to this requirement 
at a total cost of $9,300. The total cost of these requirements for 
small IHEs is, therefore, $39,950; $19,310 of this cost will be borne 
by small private IHEs, and $20,640 of the cost will be borne by small 
public IHEs. Based on the total number of small IHEs across the Nation, 
the estimated cost per small private IHE is $45, and the estimated cost 
per small public IHE is $206. The Department has, therefore, determined 
that the requirements will not represent a significant burden on small 
not-for-profit IHEs. It is also important to note that States may use 
their Government Services Fund allocations to help small IHEs meet the 
costs of complying with the requirements that affect them, and public 
IHEs may use Education Stabilization Fund dollars they receive for that 
purpose.
    In addition, the Department believes the benefits provided under 
this regulatory action will outweigh the burdens on these institutions 
of complying with the requirements. One of these benefits will be the 
provision of better information on student success in postsecondary 
education to policymakers, educators, parents, and other stakeholders. 
The Department believes that the information gathered and reported as a 
result of these requirements will improve public accountability for 
performance; help States, LEAs, and schools learn from one another and 
improve their decision-making; and inform Federal policymaking.
    A second major benefit is that better public information on State 
and local progress in the four reform areas will likely spur more rapid 
progress on those reforms, because States and LEAs that appear to be 
lagging in one area or another may see a need to redouble their 
efforts. The Department believes that more rapid progress on the 
essential educational reforms will have major benefits nationally, and 
that these reforms have the potential to drive dramatic improvements in 
student outcomes. The requirements that apply to IHEs should, in 
particular, spur more rapid implementation of pre-K-16 State 
longitudinal data systems.

Assessment of Educational Impact

    In the NPR and in accordance with section 411 of the General 
Education Provisions Act, 20 U.S.C. 1221e-4, we requested comment on 
whether these requirements do not require transmission of information 
that any other agency or authority of the United States gathers or 
makes available.
    Based on the response to the NPR and on our review, we have 
determined that these final requirements do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
Order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive Order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or computer diskette) on request to the program contact 
person listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: You can view this document, as 
well as all other documents of this Department 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.

    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: November 6, 2009.
Arne Duncan,
Secretary of Education.
[FR Doc. E9-27161 Filed 11-9-09; 11:15 am]
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