[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Rules and Regulations]
[Pages 86076-86248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27985]
[[Page 86075]]
Vol. 81
Tuesday,
No. 229
November 29, 2016
Part II
Department of Education
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34 CFR Parts 200 and 299
Elementary and Secondary Education Act of 1965, as Amended by the Every
Student Succeeds Act--Accountability and State Plans; Final Rule
Federal Register / Vol. 81 , No. 229 / Tuesday, November 29, 2016 /
Rules and Regulations
[[Page 86076]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 299
RIN 1810-AB27
[Docket ID ED-2016-OESE-0032]
Elementary and Secondary Education Act of 1965, as Amended by the
Every Student Succeeds Act--Accountability and State Plans
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations implementing programs
under title I of the Elementary and Secondary Education Act of 1965
(ESEA) to implement changes to the ESEA by the Every Student Succeeds
Act (ESSA) enacted on December 10, 2015. The Secretary also updates the
current ESEA general regulations to include requirements for the
submission of State plans under ESEA programs, including optional
consolidated State plans.
DATES: These regulations are effective January 30, 2017.
FOR FURTHER INFORMATION CONTACT: Meredith Miller, U.S. Department of
Education, 400 Maryland Avenue SW., room 3C106, Washington, DC 20202-
2800.
Telephone: (202) 401-8368 or by email: [email protected].
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action: On December 10, 2015, President
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA,
which provides Federal funds to improve elementary and secondary
education in the Nation's public schools. The ESSA builds on ESEA's
legacy as a civil rights law and seeks to ensure that every child,
regardless of race, income, background, or where they live has the
opportunity to obtain a high-quality education. Through the
reauthorization, the ESSA made significant changes to the ESEA for the
first time since the ESEA was reauthorized through the No Child Left
Behind Act of 2001 (NCLB), including significant changes to title I.
In particular, the ESSA significantly modified the accountability
requirements of the ESEA. Whereas the ESEA, as amended by the NCLB,
required a State educational agency (SEA) to hold schools accountable
based solely on results on statewide assessments and one other academic
indicator, the ESEA, as amended by the ESSA, requires each SEA to have
an accountability system that is State-determined and based on multiple
indicators, including, but not limited to, at least one indicator of
school quality or student success and, at a State's discretion, an
indicator of student growth. The ESSA also significantly modified the
requirements for differentiating among schools and the basis on which
schools must be identified for further comprehensive or targeted
support and improvement. Additionally, the ESSA no longer requires a
particular sequence of escalating interventions in title I schools that
are identified and continue to fail to make adequate yearly progress
(AYP). Instead, it gives SEAs and local educational agencies (LEAs)
discretion to determine the evidence-based interventions that are
appropriate to address the needs of identified schools.
In addition to modifying the ESEA requirements for State
accountability systems, the ESSA also modified and expanded upon the
ESEA requirements for State and LEA report cards. The ESSA continues to
require that report cards be concise, presented in an understandable
and uniform format, and, to the extent practicable, in a language that
parents can understand, but now also requires that they be developed in
consultation with parents and that they be widely accessible to the
public. The ESSA also requires that report cards include additional
information that was not required to be included on report cards under
the ESEA, as amended by the NCLB, such as information regarding per-
pupil expenditures of Federal, State, and local funds; the number and
percentage of students enrolled in preschool programs; where available,
the rate at which high school graduates enroll in postsecondary
education programs; information regarding the number and percentage of
English learners achieving English language proficiency (ELP), and
certain data collected through the Civil Rights Data Collection (CRDC).
In addition, the ESSA requires that report cards include certain
information for subgroups of students for which information was not
previously required to be reported, including homeless students,
students in foster care, and students with a parent who is a member of
the Armed Forces.
Further, the ESEA, as amended by the ESSA, authorizes an SEA to
submit, if it so chooses, a consolidated State plan or consolidated
State application for covered programs, and authorizes the Secretary to
establish, for each covered program, the descriptions, information,
assurances, and other material required to be included in a
consolidated State plan or consolidated State application.
On May 31, 2016, the Secretary published a notice of proposed
rulemaking (NPRM) for the title I, part A program and general ESEA
regulations in the Federal Register (81 FR 34539). We issue these
regulations to provide clarity and support to SEAs, LEAs, and schools
as they implement the ESEA, as amended by the ESSA--particularly, the
ESEA requirements regarding accountability systems, State and LEA
report cards, and consolidated State plans--and to ensure that key
requirements in title I of the ESEA, as amended by the ESSA, are
implemented consistent with the purpose of the law: ``to provide all
children significant opportunity to receive a fair, equitable, and
high-quality education, and to close educational achievement gaps.''
Summary of the Major Provisions of This Regulatory Action: The
following is a summary of the major substantive changes in these final
regulations from the regulations proposed in the NPRM. The rationale
for each of these changes is discussed in the Analysis of Comments and
Changes section of this document.
Section 200.12 has been revised to clarify that if an
authorized public chartering agency, consistent with State charter
school law, acts to decline to renew or to revoke a charter for a
particular charter school, the decision of the agency to do so
supersedes any notification from the State that the school must
implement a comprehensive or targeted support and improvement plan
under Sec. Sec. 200.21 or 200.22.
The Department made a number of changes to Sec. 200.13,
which describes a State's long-term goals and measurements of interim
progress for achievement, graduation rates, and progress toward ELP for
English learners:
--Section 200.13(a) is revised to clarify that long-term goals and
measurements of interim progress for academic achievement must measure
the percentage of students attaining grade-level proficiency on the
State's annual assessments in reading/language arts and mathematics
based on the State's academic achievement standards under section
1111(b)(1) of the ESEA, as amended by the ESSA, including alternate
academic achievement standards for students
[[Page 86077]]
with the most significant cognitive disabilities as defined by the
State under section 1111(b)(1)(E) of the ESEA.
--Section 200.13(c) requires States to establish long-term goals and
measurements of interim progress for increases in the percentage of
English learners making annual progress toward attaining ELP using a
uniform procedure, applied to all English learners in a consistent
manner, that establishes applicable timelines for English learners
sharing particular characteristics to attain ELP after a student's
identification and student-level targets within that timeline. The
final rule is revised to require each State, in its State plan, to
describe how it sets research-based, student-level targets; a rationale
for a State-determined maximum number of years in its uniform
procedure; and the applicable timelines over which English learners
sharing particular characteristics are expected to attain ELP.
In Sec. 200.14, which describes the requirements related
to the five indicators--Academic Achievement, Academic Progress,
Graduation Rate, Progress in Achieving English Language Proficiency,
and School Quality or Student Success--within the statewide
accountability system, the final regulations include the following
significant changes:
--Section 200.14(b)(1)(i) and (ii) is reorganized and revised to
clarify that the Academic Achievement indicator (1) must include a
grade-level proficiency measure based on the State's academic
achievement standards under section 1111(b)(1) of the ESEA, including
alternate academic achievement standards for students with the most
significant cognitive disabilities as defined by the State under
section 1111(b)(1)(E) of the ESEA; (2) may include measures of student
performance below or above the proficient level (e.g., in an
achievement index), so long as a school receives less credit for the
performance of a student who is not yet proficient than for the
performance of a student who is proficient, and the credit a school
receives for the performance of a more advanced student does not fully
compensate for the performance of a student that is not yet proficient;
and (3) does not require State assessments in reading/language arts and
mathematics that are ``equally measured.''
--Section 200.14(b)(1) and (3) is revised to ensure that the Academic
Achievement and Graduation Rate indicators are based on the
corresponding long-term goals under Sec. 200.13.
--Section 200.14(c)(4) is revised to remove the requirement that a
given measure may be used no more than once across the accountability
indicators.
--Section 200.14(d) is revised to clarify that States must demonstrate
that measures in the Academic Progress and School Quality or Student
Success indicators are supported by research that high performance or
improvement on such measures is likely to increase student learning
(e.g., grade point average, credit accumulation, or performance in
advanced coursework), or--for measures at the high school level--
graduation rates, postsecondary enrollment, postsecondary persistence
or completion, or career readiness.
Section 200.15, which describes the requirements related
to participation in statewide assessments and the annual measurement of
achievement, is revised as follows:
--Section 200.15(a) is revised to clarify the distinction between the
statutory requirement for States to administer assessments to all
students and the statutory requirement for States to measure, for
accountability purposes, whether at least 95 percent of all students
and of each subgroup of students participated in State assessments.
--Section 200.15(b)(2)(iv) is revised so that a State may develop and
use a State-determined action or set of actions that is sufficiently
rigorous to improve the school's participation rate in order to factor
the statutory requirement for 95 percent participation on statewide
assessments into its accountability system, rather than requiring such
actions to be equally rigorous and result in a similar outcome as other
possible options.
In Sec. 200.16, which describes the requirements related
to inclusion of subgroups of students, the final regulations include
the following significant changes:
--Section 200.16(b) is revised to permit a student previously
identified as a child with a disability to be included in the children
with disabilities subgroup for up to two years following the year in
which the student exits special education services, for the limited
purpose of measuring indicators that use results from required State
assessments under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended
by the ESSA. A State choosing to include former children with
disabilities for these indicators must include all such students, for
the same period of time, and must also include all such students in
determining whether the subgroup meets the State's n-size for purposes
of calculating any such indicator.
--Section 200.16(c)(1) is revised to allow former English learners to
be included in the English learner subgroup for up to four years
following the year in which the student achieves English language
proficiency consistent with the standardized, statewide exit
procedures, when measuring any indicator under Sec. 200.14(b) that
uses data from required assessments under section 1111(b)(2)(B)(v)(I)
of the ESEA, as amended by the ESSA.
Section 200.17 is revised to clarify that if a State
proposes to use an n-size above 30 students, the justification it
provides in its State plan must include data on the number and
percentage of schools that will not be held accountable for the
performance of each subgroup of students described in Sec. 200.16(a)
compared to such data if the State had selected an n-size of 30.
Within section 200.18, the Department made the following
substantial revisions from the NPRM, primarily to better align
requirements for differentiation in Sec. 200.18 with requirements for
identification of schools in Sec. 200.19:
--Section 200.18 is renamed to clarify all of the components within
annual meaningful differentiation of schools: ``performance levels,
data dashboards, summative determinations, and indicator weighting.''
--Section 200.18(a)(2)-(3) describes the requirements for each State to
describe a school's level of performance on each accountability
indicator, from among three performance levels that are distinct,
aligned to a State's long-term goals, and clear and understandable to
the public. The final rule clarifies that the levels must also be
discrete, indicating that reporting on a continuous measure (e.g.,
scale scores) would not meet the requirement, and that a data
``dashboard'' is an example of a way for a State to report performance
levels for a school.
--Section 200.18(a)(4) specifies that a State must provide each school
with a single summative ``determination,'' from among at least three
categories, based on all of the accountability
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indicators. We are revising the final regulation to clarify that a
State may either use (1) determinations that include the two categories
of schools required to be identified in Sec. 200.19 (i.e., schools
identified for comprehensive support and improvement and targeted
support and improvement) and a third category of unidentified schools,
or (2) determinations distinct from the categories of schools described
in Sec. 200.19. We are also revising Sec. 200.18(a)(4) to clarify
that the summative determination must meaningfully differentiate
between schools based on differing performance on the indicators and
provide information on a school's overall performance in a clear and
understandable manner on annual report cards.
--Section 200.18(a)(6) is revised to clarify that annual meaningful
differentiation must inform the State's methodology to identify schools
under Sec. 200.19, including identification of consistently
underperforming subgroups of students.
--Section 200.18(c)(3) is revised to require each State to demonstrate
that a school with a consistently underperforming subgroup will receive
a lower summative determination than it would have otherwise received
if the school had no consistently underperforming subgroups.
--Section 200.18(d)(1)(ii) is revised to require each State to
demonstrate in its State plan that schools that are low-performing on
indicators afforded ``substantial'' weight are more likely to be
identified under Sec. 200.19.
--Section 200.18(d)(1)(iii) incorporates provisions from the proposed
State plan regulations to clarify that a State may develop and propose
to use alternate methods for differentiation and identification under
Sec. Sec. 200.18-200.19 in order to ensure all public schools are
included, such as schools in which no grades are assessed, schools with
variant grade configurations, small schools, newly opened schools, and
schools designed to serve special populations of students (e.g.,
newcomer English learners, students receiving alternative programming
in alternative educational settings, and students living in local
institutions for neglected or delinquent children, including juvenile
justice facilities).
The Department made several changes to Sec. 200.19,
primarily for clarification or to align requirements with other
sections of the regulations:
--Section 200.19(a)(1) is revised to clarify that each State must
identify the lowest performing five percent of all title I schools, not
five percent of title I schools at each grade span, and to make
conforming changes based on the significant changes under Sec. 200.18.
--Section 200.19(a)(3) is revised to allow each State to determine how
long a school with a low-performing subgroup identified for targeted
support and improvement that also must receive additional targeted
support under Sec. 200.19(b)(2) may implement a targeted support plan
before the State must determine that such a school has not met the
State's exit criteria and must, if it receives title I funds, be
identified for comprehensive support and improvement. A corresponding
change is made to Sec. 200.22(f)(2).
--Section 200.19(b)(2) is revised to clarify that a State must use the
same process to identify schools with individual subgroups performing
at or below the performance of all students in the lowest-performing
five percent of title I schools as it uses to identify the lowest-
performing five percent of title I schools for comprehensive support
and improvement.
--Section 200.19(c)(1) is revised to allow a State, in order to
identify schools with one or more consistently underperforming
subgroups, to consider a school's performance among each subgroup of
students in the school over more than two years, if the State
demonstrates that a longer timeframe will better support low-performing
subgroups of students to make significant progress in achieving long-
term goals and measurements of interim progress in order to close
statewide proficiency and graduation rate gaps, consistent with section
1111(c)(4)(A)(i)(III) of the ESEA, as amended by the ESSA, and Sec.
200.13.
--Section 200.19(c)(3)(i) is revised to ensure that when a State
chooses a definition for consistently underperforming subgroups that
considers a subgroup's performance on the State's measurements of
interim progress or State-designed long-term goals, the SEA also
considers a schools' performance on the indicators for which goals and
measurements of interim progress are not required, consistent with the
requirement that the State's definition be based on all indicators.
--Section 200.19(c)(3) is revised to remove options for a State to
define a consistently underperforming subgroup of students based on
indicator performance levels, a single measure within an indicator, or
performance gaps between the subgroup and State averages as described
in proposed Sec. 200.19(c)(3)(ii)-(iv).
--Section 200.19(d)(1)(i)-(ii) is revised to allow a State to delay
identification of schools for comprehensive support and improvement and
schools with a low-performing subgroup for targeted support and
improvement that also must receive additional targeted support until no
later than the beginning of the 2018-2019 school year.
--Section 200.19(d)(1)(iii) is revised to allow a State to delay
identification of schools with consistently underperforming subgroups
for targeted support and improvement until no later than the beginning
of the 2019-2020 school year.
--Section 200.19(d)(2) is revised to clarify that for each year in
which a State must identify schools for comprehensive or targeted
support and improvement, it must do so using data from the preceding
school year, except that the State may use adjusted cohort graduation
rate data from the year immediately prior to the preceding school year.
The Department made revisions to Sec. 200.20 for clarity,
including:
--Section 200.20(a) is revised to use consistent terminology for how
States can produce averaged results by combining data across both
school years and grades within a school and to clarify that a State
combining data must sum the total number of students in each subgroup
of students described in Sec. 200.16(a)(2) across all school years
when calculating a school's performance on each indicator under Sec.
200.14 and determining whether the subgroup meets the State's minimum
number of students described in Sec. 200.17(a)(1).
--Section 200.20(a) is revised to clarify the limited purposes in the
accountability system for which States may average school-level data
across school years.
Within sections Sec. Sec. 200.21 and 200.22,
Comprehensive Support and Improvement and Targeted Support and
Improvement, the Department made the following substantial revisions
from the NPRM, primarily to strengthen and clarify the requirements for
school improvement:
--Section 200.21(c)(4) is revised to require that an LEA, in conducting
a school-level needs assessment for each school within the LEA
identified for comprehensive support and improvement, consider a
school's
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unmet needs, including with respect to students, school leadership and
instruction staff, quality of the instructional program, family and
community involvement, school climate, and distribution of resources.
--Section 200.21(d)(1) is revised to clarify that for LEAs affected by
section 8538 of the ESEA, the LEA must develop school improvement plans
in partnership with Indian tribes, among other required stakeholders.
--Section 200.21(d)(1), and similar requirements in Sec. Sec.
200.15(c)(1)(i) and 200.22(c)(1), is revised to encourage the
involvement of students, as appropriate, in developing school
improvement plans.
--Section 200.21(d)(3) is revised to clarify examples of interventions
that an LEA may consider implementing in an identified school and to
clarify optional State authorities for State-approved lists of
interventions or State-determined interventions, further described in
Sec. 200.23(c).
--Section 200.21(d)(3)(vi) is revised to clarify that differentiated
improvement activities that utilize evidence-based interventions may be
used in high schools that primarily serve students returning to
education or who, based on their grade or age, are significantly off
track to accumulate sufficient academic credits to meet State high
school graduation requirements.
--Sections 200.21(d)(4) and 200.22(c)(7)(i) are revised to require that
LEAs, in identifying and addressing resource inequities in schools
identified for comprehensive support and improvement, or schools with a
low-performing subgroup identified for targeted support and improvement
that also must receive additional targeted support, respectively, must
review access to advanced coursework, access to full-day kindergarten
programs and preschool programs, and access to specialized
instructional support personnel.
--Consistent with the revisions to Sec. 200.21(d)(3)(vi), Sec.
200.21(g) is revised to clarify State discretion to exclude very small
high schools from developing and implementing a support and improvement
plan if such schools are identified as a low graduation rate high
school under Sec. 200.19(a)(2).
--Sections 200.21(f) and 200.22(f) are revised to require that each SEA
make its State-established exit criteria publicly available.
The Department has revised Sec. 200.23 as follows:
--Section 200.23(a) is revised to clarify that in periodically
reviewing resources available for each LEA in the State serving a
significant number or percentage of schools identified for
comprehensive or targeted support and improvement, the State must
consider each of the resources in its review that is listed in Sec.
200.21(d)(4)(i)(A)-(E) and consider resources in such LEAs as compared
to all other LEAs in the State and in schools in those LEAs as compared
to all other schools in the State.
--Section 200.23(c)(1) is revised to list examples of additional
actions a State may take to initiate improvement at the LEA level, or,
consistent with State charter school law, in an authorized public
chartering agency, that serves a significant number or percentage of
schools identified for comprehensive support and improvement and that
are not meeting exit criteria or a significant number or percentage of
schools in targeted support and improvement.
--Section 200.23(c)(1) is revised to clarify that any action to revoke
or non-renew a school's charter must be taken in coordination with the
applicable authorized public chartering agency and be consistent with
both State charter school law and the terms of the school's charter.
--Section 200.23(c)(3) is revised to clarify the distinction between
this provision and a related provision in Sec. 200.23(c)(2). The final
regulations give States flexibility to establish evidence-based
interventions for use by LEAs and schools identified for support and
improvement either by creating lists of State-approved, evidence-based
interventions for use in any identified school, or by developing their
own alternative evidence-based interventions that may be used
specifically in comprehensive support and improvement schools.
The Department has made the following significant changes
to Sec. 200.24, which describes requirements for school improvement
funding under section 1003 of the ESEA:
--Section Sec. 200.24(c)(2)(ii) is revised to clarify that a State may
award a grant of less than the minimum award size if the State
determines that a smaller amount is appropriate based on the school's
enrollment, identified needs, selected evidence-based interventions,
and other relevant factors described in the LEA's application.
--Section 200.24(c)(4)(iii)(A) is revised to require that a State
consider, in determining strongest commitment, both the proposed use of
evidence-based interventions that are supported by the strongest level
of evidence available, and whether the evidence-based interventions are
sufficient to support the school in making progress toward meeting the
applicable exit criteria under Sec. Sec. 200.21 or 200.22.
The Department revised Sec. 200.30 for clarity, including
as follows:
--Section 200.30(e) is revised to provide for a State to delay
inclusion of per-pupil expenditure data on its report card until no
later than June 30 following the December 31 deadline for reporting all
other information required under section 1111(h) of the ESEA, as
amended by the ESSA.
--Section 200.30(e)(3)(ii) is revised to clarify that a State
requesting a one-time, one-year extension of the December 31 deadline
for disseminating report cards must submit a plan and timeline for how
it will meet the December 31 deadline for report cards that include
information from the 2018-2019 school year.
--Section 200.30(f)(1)(iv) clarifies that students in the subgroup of
``student with a parent who is a member of the Armed Forces'' includes
students whose parents are on full-time National Guard duty. Further,
Sec. 200.30(f)(1)(iv)(C) defines full-time National Guard duty.
The Department revised Sec. 200.31 for clarity, including
as follows:
--Section 200.31(b)(3) removes the page limit requirement on the LEA
overview for each school served by the LEA.
--Section 200.31(e) is revised to provide for an LEA to delay inclusion
of per-pupil expenditure data until no later than June 30 following the
December 31 deadline for reporting all other information required under
section 1111(h) of the ESEA, as amended by the ESSA.
The Department revised Sec. 200.34, which provides the
requirements on how to calculate the adjusted cohort graduation rate,
including the following significant changes:
--Section 200.34(a)(3)(iii) is revised to clarify the requirements for
removing a student entering a prison or juvenile justice facility from
a sending school's cohort.
--Section 200.34(a)(5) is added to clarify that a State must include
students with the most significant cognitive disabilities who receive a
State-defined alternate diploma in the calculation of the adjusted
cohort
[[Page 86080]]
graduation rate in the year in which they exit, and describes how they
should be treated in the numerator and the denominator.
--Section 200.34(c)(2) is revised to clarify that a diploma based on
meeting a student's Individualized Education Program (IEP) goals is
considered a lesser credential.
--Section 200.34(d)(2) is revised to remove language limiting an
extended-year graduation rate to seven years.
--Section 200.34(e)(2) is added to describe the criteria a State must
use to include students in the following subgroups in the graduation
rate calculation: English Learners, children with disabilities,
children who are homeless, and children who are in foster care.
--Section 200.34(e)(f) has been removed and revised requirements have
been placed in Sec. 200.34(a)(5).
The Department has revised Sec. 200.35 for clarity,
including:
--Section 200.35(a) and (b) has been revised to clarify that State and
LEA report cards must report the total current expenditures that were
not reported in school-level per-pupil expenditure figures.
--Section 200.35(a) and (b) has been revised to clarify that State and
LEA report cards must, when reporting per-pupil expenditures, include
with State and local funds all Federal funds intended to replace local
tax revenues.
--Section 200.35(c)(2) has been revised to clarify the denominator used
for purposes of calculating per-pupil expenditures must be the same
figure as reported to the National Center for Education Statistics
(NCES) on or about October 1.
The Department made a number of changes to Sec. 299.13,
which provides an overview of the State plan requirements.
--Section 299.13(c)(ii) is revised to require that an SEA ensures that
LEAs will collaborate with local child welfare agencies to develop and
implement clear written procedures that ensure children in foster care
receive transportation to and from their school of origin when in their
best interest.
--Section 299.13(c)(iii) was moved from proposed Sec. 299.18(c) to
require an SEA to assure that it will publish and update specific
educator equity information and data regarding ineffective, out-of-
field, and inexperienced teachers.
--Section 299.13(d)(3) is revised to allow an SEA to request a 3 year
extension, rather than the 2 year extension originally proposed, to
calculate statewide rates of educator equity data using school-level
data when meeting the requirements of Sec. 299.18(c)(3)(i).
The Department made the following changes in Sec. 299.14,
which describes the framework and the requirements when submitting a
consolidated State plan:
--Section 299.14(c) was added to include consolidated State plan
assurances on coordination of federal programs, challenging academic
standards and assessments, State support and improvement for low-
performing schools, participation for private school children and
teachers, and appropriate identification of children with disabilities.
With the exception of the assurance regarding participation for private
school children and teachers, the required assurances were previously
required descriptions in the proposed consolidated State plan
requirements, with revisions made in order to reduce unnecessary burden
on each SEA.
The Department made the following changes in Sec. 299.15,
which describes the requirements related to consultation on the
consolidated State plan:
--Section 299.15 is revised to include two additional stakeholder
groups with whom an SEA must consult in developing its consolidated
State plan--representatives of private school students and early
childhood educators and leaders--and to clarify that the stakeholder
groups listed in Sec. 299.15(a) represent the minimum stakeholder
groups with whom an SEA is expected to consult.
--Section 299.15 is further revised such that Sec. 299.15(b) no longer
includes the proposed requirement that each SEA describe its plans for
coordinating across Federal educational laws. Section 299.15(b) now
includes the performance management requirements which only require an
SEA to describe its performance management system once, and not for
each component of its consolidated State plan.
The Department made a number of changes to Sec. 299.16,
which describes the requirements related to challenging academic
assessments, including:
--The final regulations do not require a State that elects to submit a
consolidated State plan to provide evidence in such plan related to
challenging academic content standards and aligned academic achievement
standards, alternate academic achievement standards, as applicable, or
ELP standards but rather, in Sec. 299.14(c)(2), requires the SEA to
assure that it will meet the statutory requirements. Specifically, the
assurance in Sec. 299.14(c)(2) clarifies that a State that elects to
submit a consolidated State plan will meet the statutory requirements
in section 1111(b)(1)(A)-(F) and 1111(b)(2) of the Act, including
requirements related to alternate academic achievement standards and
alternate assessments for students with the most significant cognitive
disabilities and ELP standards and assessments.
--The final regulations do not require an SEA that elects to submit a
consolidated State plan to provide evidence in such plan related to a
State's academic assessments, including providing the names of such
assessments and evidence that such assessments meet the requirements
under section 1111(b)(2) of the ESEA and applicable regulations.
Rather, the SEA must provide an assurance under Sec. 299.14(c)(2) that
it will meet the statutory requirements related to a State's academic
assessments.
--Proposed Sec. 299.16(b)(7) has been removed, and the Department will
not require an SEA to describe in its consolidated State plan how it
will use funds under section 1201 of the ESEA.
The Department has revised some provisions in Sec. 299.17
for clarification and alignment with revisions to other provisions in
the final regulations as follows:
--Section 299.17(a) clarifies that, with respect to its State-designed
long-term goals under Sec. 200.13, an SEA must both provide its
baseline, measurements of interim progress, and long-term goals, and
describe how it established its long-term goals and measurements of
interim progress.
--Section 299.17(b)(5)(iv) clarifies that an SEA must describe, among
other elements as noted in Sec. 299.17(b), how its methodology for
differentiating all public schools in the State meets the requirements
under Sec. 200.18(c)(3) and (d)(1)(ii).
--Section 299.17(b)(8) incorporates the requirements for an SEA to
describe how it includes all public schools in the State in its
accountability system if it is different from the methodology described
in Sec. 299.17(b)(5), consistent with Sec. 200.18(d)(1)(iii).
--Section 299.17(d)(2) is revised to include a description of how an
SEA will provide technical assistance to
[[Page 86081]]
each LEA in the State serving a significant number or percentage of
schools identified for comprehensive or targeted support and
improvement, including how it will provide technical assistance to LEAs
to ensure the effective implementation of evidence-based interventions,
consistent with Sec. 200.23(b).
--Section 299.17(d)(4) is revised to require an SEA to describe how it
will periodically review, identify, and, to the extent practicable,
address resources available in LEAs serving a significant number or
percentage of comprehensive or targeted support and improvement schools
consistent with Sec. 200.23(a).
The Department made a number of changes in Sec. 299.18,
which provides the requirements related to supporting excellent
educators as follows:
--Section 299.18(a) is amended to clarify that an SEA need only
describe the State's system of certification and licensure, its
strategies to improve educator preparation programs, and its strategies
for professional growth and improvements for educators that addresses
induction, development, compensation, and advancement if it intends to
use Federal funds for these purposes.
--Section 299.18(b) is amended to remove the list of student subgroups
that was provided in proposed Sec. 299.18(b)(2).
--Section 299.18(c) is amended to clarify that an SEA must describe
whether there are differences in the rates at which low-income and
minority students are taught by ineffective, out-of-field, or
inexperienced teachers.
--Section 299.18(c)(5) is revised to clarify that an SEA must identify
likely causes of the most significant differences in the rates at which
low-income and minority students are taught by ineffective, out-of-
field, or inexperienced teachers.
--Section 299.18(c)(5)(ii) is revised to clarify that an SEA must
prioritize strategies to address the most significant differences in
the rates at which low-income and minority students are taught by
ineffective, out-of-field, or inexperienced teachers.
--Section 299.18(c)(5)(iii) is revised so that an SEA must include its
timeline and interim targets for eliminating any differences in the
rates at which low-income and minority students are taught by
ineffective, out-of-field, or inexperienced teachers.
The Department made a number of changes in Sec. 299.19,
which provides the requirements for an SEA to describe how it will
ensure a well-rounded and supportive education for all students,
including the following:
--Section 299.19(a)(1) is amended to clarify that State must describe
use of title IV, part A funds and funds from other included programs,
including strategies to support the continuum of a student's preschool-
12 education and to ensure all students have access to a well-rounded
education. Such description must include how the SEA considered the
academic and non-academic needs of the subgroups of students identified
in Sec. 299.19(a)(1)(iii).
--Section 299.19(a)(2) is revised to clarify that a State need only
describe its strategies to support LEAs to improve school conditions
for student learning, effectively use technology, and engage families,
parents, and communities if the State uses title IV, part A funds or
funds from one or more of the included programs for such activities.
--Section 299.19(a)(2) removes the requirement for a State to describe
how it will ensure the accurate identification of English learners.
Section 299.19(b)(4) retains the requirement for each SEA to describe
its standardized entrance and exit procedures for English learners.
--Section 299.19(b)(3) is revised to include program-specific
requirements for title I, part D that requires each SEA to provide a
plan for assisting the transition of children and youth between
correctional facilities and locally operated programs and a description
of the program objectives and outcomes that will be used to assess the
effectiveness of the program.
Please refer to the Analysis of Comments and Changes section of
this preamble for a detailed discussion of the comments received and
any changes made in the final regulations.
Costs and Benefits: The Department believes that the benefits of
this regulatory action outweigh any associated costs to SEAs and LEAs,
which may be financed with Federal grant funds. These benefits include
a more flexible, less complex and costly accountability framework for
the implementation of the ESEA, as amended by the ESSA, that respects
State and local decision-making; the efficient and effective collection
and dissemination of a wide range of education-related data that will
inform State and local decision-making; and an optional, streamlined
consolidated application process that will promote the comprehensive
and coordinated use of Federal, State, and local resources to improve
educational outcomes for all students and all subgroups of students.
Please refer to the Regulatory Impact Analysis section of this document
for a more detailed discussion of costs and benefits, including changes
in estimated costs in response to public comment. Consistent with
Executive Order 12866, the Secretary has determined that this action is
economically significant and, thus, is subject to review by the Office
of Management and Budget under the order.
Public Comment: In response to our invitation to comment in the
NPRM, 21,609 parties submitted comments on the proposed regulations.
We discuss substantive issues under the sections of the proposed
regulations to which they pertain, with the exception of a number of
cross-cutting issues, which are discussed together under the heading
``Cross-Cutting Issues.'' Generally, we do not address technical and
other minor changes, or suggested changes the law does not authorize us
to make under the applicable statutory authority. In addition, we do
not address general comments that raised concerns not directly related
to the proposed regulations or that were otherwise outside the scope of
the regulations, including comments that raised concerns pertaining to
particular sets of academic standards or the Department's authority to
require a State to adopt a particular set of academic standards, as
well as comments pertaining to the Department's regulations on
statewide assessments.
Tribal Consultation: The Department held four tribal consultation
sessions on April 24, April 28, May 12, and June 27, 2016, pursuant to
Executive Order 13175 (``Consultation and Coordination with Indian
Tribal Governments''). The purpose of these tribal consultation
sessions was to solicit tribal input on the ESEA, as amended by the
ESSA, including input on several changes that the ESSA made to the ESEA
that directly affect Indian students and tribal communities. The
Department specifically sought input on: The new grant program for
Native language Immersion schools and projects; the report on Native
American language medium education; and the report on responses to
Indian student suicides. The Department announced the tribal
consultation sessions via listserv emails and Web site postings on
http://www.edtribalconsultations.org/.
During the consultation session held on June 27, 2016, which was
held during the public comment period, the attendees discussed a range
of topics
[[Page 86082]]
pertaining to the ESEA, as amended by the ESSA, many of which related
to provisions and titles of the law that fall outside the scope of
these regulations. We do not address those comments in these
regulations, but we are continuing to consider them in accordance with
the Department's Tribal Consultation Policy, which is available at:
http://www.edtribalconsultations.org/documents/TribalConsultationPolicyFinal2015.pdf.
A number of participants at the June 27, 2016 consultation session
provided input pertaining to these regulations. For example, a number
of participants expressed concerns about the consultation, or lack of
consultation, conducted by States and districts with local tribes.
Participants wished to be more involved in the development of State and
local policies that affect Native students. A few participants
expressed specific concerns that the proposed regulation regarding the
minimum number of students that must be in a subgroup for that subgroup
to be included in accountability determinations would not ensure that
Native students were included in accountability determinations to the
maximum extent possible.
The Department considered the input provided during the first three
consultation sessions in developing the proposed requirements. We
considered input from the June 27, 2016 tribal consultation session on
the topics that are within the scope of these regulations, as part of
public comments received on the NPRM. We respond to the comments from
that session that are within the scope of these regulations under the
sections of the proposed regulations to which they pertain.
Analysis of Comments and Changes: An analysis of the comments and
changes in the regulations since publication of the NPRM follows.
Cross-Cutting Issues
Legal Authority
Comments: A number of commenters asserted that these regulations
constitute an overreach by the Department because the regulations
include requirements pertaining to topics on which the ESEA, as amended
by the ESSA, delegates authority to States and LEAs. A number of
commenters cited specific statutory provisions that are intended to
limit the Department's authority to create new requirements or criteria
for statewide accountability systems beyond those specifically
enumerated in the ESEA, as amended by the ESSA. Some of these
commenters contended that any regulatory requirement that is not
specifically authorized by the statute and that establishes parameters
for how States or LEAs implement the law exceeds the Department's
authority and violates the statute.
Discussion: Section 410 of the General Education Provisions Act
(GEPA), 20 U.S.C. Sec. 1221e-3, authorizes the Secretary, ``in order
to carry out functions otherwise vested in the Secretary by law or by
delegation of authority pursuant to law, . . . to make, promulgate,
issue, rescind, and amend rules and regulations governing the manner of
operations of, and governing the applicable programs administered by,
the Department.'' Section 414 of the Department of Education
Organization Act (DEOA) similarly authorizes the Secretary to prescribe
such rules and regulations as the Secretary determines necessary or
appropriate to administer and manage the functions of the Secretary or
the Department. 20 U.S.C. 3474. Section 1601(a) of the ESEA, as amended
by the ESSA, bolsters this general authority through an additional
grant of authority for the Secretary to issue regulations under title I
of the ESEA. That provision states that the Secretary ``may issue . . .
such regulations as are necessary to reasonably ensure that there is
compliance with this title.'' Further, section 8302(a)(1) of the ESEA,
as amended by the ESSA, authorizes the Secretary to ``establish
procedures and criteria'' for the submission of consolidated State
plans.
The provisions of these regulations are wholly consistent with the
Department's rulemaking authority. In particular, section 1001 of the
ESEA, as amended by the ESSA, establishes the purpose of title I of the
statute, which is ``to provide all children significant opportunity to
receive a fair, equitable, and high-quality education, and to close
educational achievement gaps.'' In furtherance of that goal, section
1111(a) requires any State that desires to receive a grant under title
I, part A to file with the Secretary a plan that meets certain
specified requirements, which may be submitted as part of a
consolidated plan under section 8302 of the ESEA. Section 1111(c)(1) of
the ESEA requires each State plan to describe a statewide
accountability system that complies with the requirements of
subsections 1111(c) and 1111(d). In addition, section 1111(h)(1) of the
ESEA requires a State that receives assistance under title I, part A to
prepare and disseminate widely to the public an annual State report
card for the State as a whole that meets the requirements of that
paragraph, and section 1111(h)(2) requires an LEA that receives
assistance under title I, part A to prepare and disseminate an annual
LEA report card that includes certain specified information on the
agency as a whole and each school served by the agency.
The Department has determined that each of these regulations is
necessary to provide clarity with respect to provisions of the law that
are vague or ambiguous, or to reasonably ensure that States and LEAs
implement key requirements in title I of the ESEA, as amended by the
ESSA--particularly the requirements regarding accountability systems,
State and LEA report cards, and consolidated State plans--consistent
with the statute and with the statutory purpose of the law.
In developing these regulations, we carefully considered each of
the statutory restrictions on the Department's authority, including the
restrictions in section 1111(e)(1)(A) of the ESEA, as amended by the
ESSA, as well as the more specific restrictions on the Department's
authority to regulate particular aspects of statewide accountability
systems in section 1111(e)(1)(B). We were also mindful of the fact that
one of the goals of the reauthorization of the ESEA through the ESSA
was to provide greater discretion and flexibility to States and LEAs
than had been provided to them under the ESEA, as amended by NCLB, and
have taken steps to ensure that States and LEAs have significant
discretion and flexibility with respect to how they implement these
regulations.
However, we disagree with the contention that any regulation that
is not explicitly authorized by the statute and places any limitation
on a State's or LEA's discretion either violates the specific statutory
restrictions or is otherwise inconsistent with the statute. A
regulation would be inconsistent with the statute if it were directly
contrary to the statutory requirements, or if it would be impossible
for a State or LEA to comply with both the statutory and regulatory
requirements. Regulatory requirements that provide greater specificity
regarding how a State must implement certain requirements are not
inconsistent with the statute or the Department's rulemaking authority
in any way.
We similarly disagree with the contention that any of the
regulations governing statewide accountability systems add new
requirements that are outside the scope of title I, part A of the ESEA,
as amended by the ESSA. All of the regulatory requirements governing
statewide accountability systems fall squarely within the scope of
title I, part A, as those requirements implement the statutory
requirements in sections
[[Page 86083]]
1111(c) and 1111(d) of the ESEA, as amended by the ESSA, and are
specifically intended to ensure compliance with those sections. The
fact that these regulations impose certain requirements for statewide
accountability systems that are not specifically mentioned in those
sections of the statute does not mean that those requirements fall
outside the scope of title I, part A. Accordingly, the final
regulations also do not violate section 1111(e) of the ESEA, as amended
by the ESSA, which prohibits the Secretary from promulgating any
regulations that are inconsistent with or outside the scope of title I,
part A.
Moreover, given that the Secretary has general rulemaking
authority, it is not necessary for the statute to specifically
authorize the Secretary to issue a particular regulatory provision.
Rather, the Secretary may issue any regulation governing title I that
is consistent with the ESEA, as amended by the ESSA, that enables the
Secretary to ``carry out functions otherwise vested in the Secretary by
law or by delegation of authority pursuant to law,'' and, with respect
to regulations under title I of the ESEA, that the Secretary deems
``necessary to reasonably ensure that there is compliance with'' that
title.
In promulgating these regulations, the Secretary has exercised his
authority under GEPA, the DEOA, and under sections 1601(a) and 8302(a)
of the ESEA, as amended by the ESSA, to issue regulations that are
necessary to reasonably ensure that States, LEAs, and schools comply
with the requirements for statewide accountability systems,
consolidated State plans, and State and LEA report cards, and that they
do so in a manner that advances the statutory goals.
Changes: None.
Comments: One commenter suggested that any of the Department's
proposed regulations that proposed adding a requirement not expressly
contained in the ESEA, as amended by the ESSA, might violate the
Spending Clause of the U.S. Constitution (Article I, section 8, Clause
1), by failing to provide ``clear notice'' to grantees of the
requirements with which they must comply by accepting title I funds.
Discussion: Congress' authority to enact the provisions in title I
of the ESEA, as amended by the ESSA, governing statewide accountability
systems, report cards, and State plans flows from its authority to ``.
. . provide for general Welfare of the United States.'' Article I,
Section 8, Clause 1 (commonly referred to as Congress' ``spending
authority''). Under that authority, Congress authorized the Secretary
to implement the provisions of the ESEA, as amended by the ESSA, and
specifically authorized the Secretary to issue ``such regulations as
are necessary to reasonably ensure that there is compliance with''
title I. Thus, the regulations do not conflict with Congress' authority
under the Spending Clause. With respect to cases such as Arlington C.
Sch. Dist. Bd. of Educ. v. Murphy, States have full notice of their
responsibilities under these regulations through the rulemaking process
the Department has conducted under the Administrative Procedure Act and
the General Education Provisions Act to develop the regulations.
Changes: None.
Data Collection
Comments: Some commenters recommended removing Sec. 200.17,
stating that the amount of data already collected has not improved
academic achievement and that the Federal government should not collect
data on children. These comments were also made regarding Sec. Sec.
200.20-24, 200.30-31, 299.13, and 299.19 of the proposed regulations.
In addition, a number of commenters recommended retaining Sec. 200.7
of the current regulations, which sets forth the data disaggregation
and privacy requirements under the NCLB, without commenting
specifically on proposed Sec. 200.17, which would establish similar
requirements under the ESSA.
Discussion: The Department believes that data collected for
purposes of accountability and data reported on State and LEA report
cards are important for providing parents and stakeholders the
information they need to understand how schools are held accountable
and how students, including each subgroup of students, are performing.
Further, collecting these data is necessary to comply with the
requirements of section 1111 of the ESEA, as amended by the ESSA. In
addition to promoting transparency, this information is essential for
identifying and closing educational achievement gaps, which is one of
the primary purposes of the law. We note that there are also multiple
provisions in title I of the ESEA, as amended by the ESSA, including
section 1111(c)(3), (g)(2)(N), and (i), that specify privacy
protections for individuals related to collection or dissemination of
data consistent with section 444 of the GEPA (20 U.S.C. 1232g, commonly
known as the Family Educational Rights and Privacy Act of 1974). We
further note, as we stated in the NPRM, that Sec. 200.17 retains and
reorganizes the relevant requirements of current Sec. 200.7, which
would be removed and reserved, so that these requirements (related to
disaggregation of data primarily for accountability purposes) are
incorporated into the sections of the final regulations pertaining to
accountability, instead of pertaining to assessments.
Changes: None.
Section 200.12 Single Statewide Accountability System
Comments: A number of commenters asked for clarity about the
timeline under which a State will be required to implement a statewide
accountability system, noting the distinction between the school year
in which data are collected and the school year in which schools are
differentiated and identified for support and improvement.
Discussion: While we address specific comments related to the
implementation timeline for the identification of schools in the
statewide accountability system in Sec. 200.19, which begins no later
than the 2018-2019 school year, in order to avoid confusion between the
year in which a State collects data to calculate its indicators under
Sec. 200.14 and the year in which a State first differentiates and
identifies schools under Sec. Sec. 200.18 and 200.19, we have removed
the reference to a specific year of implementation in Sec. 200.12.
Changes: We revised Sec. 200.12(a)(1) to strike ``beginning no
later than the 2017-2018 school year.''
Comments: One commenter suggested that the Department create,
through the regulatory process, an education office of the ombudsman
for each State that would be an independent organization to ensure
fair, objective, and transparent investigations of complaints and that
would resolve data and other disputes related to key elements of
statewide accountability systems, including meaningful differentiation
of all public schools and identification of schools to implement
comprehensive or targeted support and improvement plans.
Discussion: While we recognize that LEAs or schools may
occasionally dispute accountability determinations under the ESEA, we
believe that States are best positioned to determine an appropriate and
timely process for resolving such disputes, which may include
establishing an ombudsman's office for this purpose without the
Department requiring this. We decline to change the regulations in this
area.
Changes: None.
Comments: Many commenters wrote either in support of or opposition
to various aspects of the proposed regulations on statewide
accountability systems, which are listed in Sec. 200.12, including
indicators under Sec. 200.14 and
[[Page 86084]]
school improvement plans under Sec. Sec. 200.21 and 200.22.
Discussion: We appreciate feedback in response to the high-level
overview of statewide accountability systems in proposed Sec. 200.12.
However, we address comments on specific components of the
accountability system in the sections of the proposed regulations that
address these specific components.
Changes: None.
Single System
Comments: A number of commenters wrote generally about the
framework for a single statewide accountability system; some supported
and others opposed the creation of a single system. Commenters writing
in opposition variously objected to the word ``single'' as not
specifically authorized by the statute, described the proposed
regulations as an overreach of the Department's authority, and warned
that the proposal, contrary to its stated purpose, would encourage
separate State and Federal accountability systems. Other commenters
asserted that the requirement for a single statewide system would
prevent States, LEAs, or charter schools from creating their own
accountability systems, separate from the accountability system
required under the ESEA, that are better tailored to local needs.
Another commenter asked the Department to provide guidance on how to
reconcile conflicting school improvement identifications that may
result from separate State and ESEA accountability systems. Finally,
one commenter recommended that the regulations permit flexibility for
rural schools and districts, suggesting, for example, that rural
schools be overseen in accordance with State rural school laws, similar
to the provisions in the statute and Sec. 200.12(a) for public charter
schools.
Discussion: We believe that a single statewide system is necessary
to meet ESEA requirements, particularly for ensuring that annual
meaningful differentiation and identification of schools is fair,
consistent, and transparent to the public; and to ensure that all
schools are treated equitably and held to the same expectations.
However, the requirement for a single statewide system in Sec. 200.12
for Federal accountability purposes does not preclude a State, LEA, or
charter school organization from establishing a separate accountability
system for its own purposes, including school identification and
support, should such a system be required under State or local law, or
desired for other reasons.
Finally, it is not necessary for the ESEA, as amended by the ESSA,
to specifically authorize the Secretary to clarify that the statewide
accountability system must be a single statewide accountability system,
as this regulatory requirement is being promulgated pursuant to the
Secretary's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA, as amended by the ESSA, and is fully consistent
with section 1111(e) of the ESEA, as amended by the ESSA (see
discussion of the Department's general rulemaking authority under the
heading Cross-Cutting Issues). Without this clarification, the
statutory provision on its own is ambiguous and could lead to
inconsistent or unfair systems of annual meaningful differentiation and
identification for schools. In addition, the requirement is necessary
to reasonably ensure compliance with, and falls squarely within the
scope of, the requirement in section 1111(c)(1) of the ESEA, as amended
by the ESSA.
Changes: None.
Comments: A number of commenters suggested that the Department
provide flexibility for different accountability systems for certain
types of schools, particularly alternative schools, to allow for the
use of measures that are better suited to describe student outcomes and
school performance in alternative settings. Specifically, commenters
noted a need to differentiate accountability requirements associated
with the four-year adjusted cohort graduation rate to allow students in
non-traditional settings to achieve high school diplomas without time
constraints. However, other commenters requested that the Department
maintain strong and uniform accountability measures for all schools,
including those that serve students with unique and specialized needs.
Discussion: We agree that certain types of schools, such as
alternative high schools, schools serving students living in local
institutions for neglected or delinquent children, including juvenile
justice facilities, and very small schools, may have unique concerns
and, in some instances, need additional flexibility that the statewide
accountability system described in Sec. 200.12 may not be able to
provide in order to adequately reflect the achievement of the student
population and overall success of the school. We address this concern
in response to comments under the subheading Other Requirements in
Annual Meaningful Differentiation of Schools in Sec. 200.18, which we
have revised to clarify the differentiation in accountability
requirements permitted for certain categories of schools that are
designed to serve special populations of students.
Changes: None.
Comments: Several commenters from tribal organizations suggested
that the Department revise proposed Sec. 200.12 to require specific
provisions in a State's accountability system for students instructed
primarily through Native American languages. Another commenter
representing tribes expressed support for a uniform statewide
accountability system in Sec. 200.12, noting that the requirements to
measure student achievement are critical for the more than 90 percent
of American Indian and Alaska Native students that attend public
schools supported by SEAs.
Discussion: We appreciate the comments addressing unique concerns
affecting American Indian and Alaska Native students. As described in
Sec. 200.12, a State's accountability system must be based on the
challenging State academic standards under section 1111(b)(1) of the
ESEA and academic assessments under section 1111(b)(2). To the extent
that commenters requested revisions regarding requirements for State
assessments, these regulations do not address the requirements
associated with the specific academic assessments that a State must
administer and use in its statewide accountability system; rather, such
issues will be addressed through the final regulations on assessment
for title I, part A. Section 200.12 provides broad parameters for State
accountability systems and does not address the language of instruction
used. We agree with the commenter that a single statewide
accountability system is critical to maintain uniform high expectations
for all students, including American Indian and Alaska Native students,
and to close achievement gaps.
Changes: None.
Comments: None.
Discussion: As a technical edit, we have replaced Sec.
200.12(b)(3) to emphasize that the State's accountability system must
include all indicators in Sec. 200.14.
Changes: We have replaced Sec. 200.12(b)(3) with the requirement
that the State's accountability system must include all indicators in
Sec. 200.14. We have subsequently renumbered proposed paragraphs
(b)(3) through (b)(5) to (b)(4) through (b)(6), respectively.
Consideration of Additional Academic Subjects
Comments: Multiple commenters expressed that State accountability
systems should allow for consideration of academic subjects in addition
to reading/language arts and mathematics.
[[Page 86085]]
However, several commenters also expressed support for the emphasis on
academic achievement and high school graduation in the regulations,
among the multiple measures of school performance that can be included
in statewide accountability systems.
Discussion: Section 1111(c)(4)(A)-(B) of the ESEA, as amended by
the ESSA, require each State to establish long-term goals and
measurements of interim progress and an accountability indicator that
are based on student academic achievement on the State's reading/
language arts and mathematics assessments. Further, section
1111(c)(4)(C) requires that the Academic Achievement indicator be one
that receives ``substantial'' weight in the system of annual meaningful
differentiation of schools. However, we agree with commenters
emphasizing that a well-rounded education includes subjects beyond
reading/language arts and mathematics, and this is a valuable
opportunity for States under the ESEA. Under the ESEA and our
regulations, a State may include additional subjects in its statewide
accountability system. We further address this concern in response to
comments in Sec. Sec. 200.13 and 200.14, which establish the
requirements for the long-term goals and indicators used in the State
accountability system.
Changes: None.
Goals and Measurements of Interim Progress
Comments: A few commenters requested that the Department strengthen
the language in proposed Sec. 200.12(b)(2) requiring that the State's
accountability system be informed by the State's long-term goals and
measurements of interim progress under Sec. 200.13. One commenter
requested that the Department clarify in the text of Sec. 200.12 that
the long-term goals and measurements of interim progress established
under Sec. 200.13 must be ambitious.
Discussion: Section 200.12 is intended to provide a high-level
overview of the requirements for a single statewide accountability
system; section 200.13 fully addresses the requirements for long-term
goals and measurements of interim progress. In addition, we are
revising Sec. 200.14 (accountability indicators) and Sec. 200.18
(annual meaningful differentiation of school performance) to clarify
the role of goals and measurements of interim progress in the statewide
accountability system. We agree with the comment that the regulations
would be more precise and consistent with the requirements in Sec.
200.13 with the addition of the word ``ambitious.''
Changes: We have revised Sec. 200.12(b)(2) to clarify that a
State's accountability system must be informed by ambitious long-term
goals and measurements of interim progress.
Charter Schools
Comments: A number of commenters supported the requirement in Sec.
200.12 that the statewide accountability system applies to all public
elementary and secondary schools in the State, including public charter
schools. Many commenters also supported the additional statutory
requirement that charter schools be overseen in accordance with State
charter school law. One commenter noted that including this language
helps to clarify that, in general, charter schools are subject both to
ESEA accountability requirements and any additional accountability
expectations that State charter school authorizers may establish in
accordance with State charter school law. For example, a charter
authorizer may revoke or decline to renew a charter based on school
performance measured against the requirements of the charter even if
the State is not requiring action based on the ESEA accountability
requirements.
Another commenter expressed concern that under the ESEA, as amended
by NCLB, State charter school laws emphasized the use of high-stakes
testing to assess school performance; this commenter requested that the
final regulations support accountability for charter schools based on
the same multi-measure systems required by the ESEA, as reauthorized by
the ESSA, for traditional public schools.
A few commenters called for increased regulation and accountability
for charter schools.
Discussion: We appreciate support from commenters stating that the
regulations help to clarify the applicability of accountability
requirements for charter schools under both the ESEA and State charter
school laws, and we believe that it is helpful to further clarify how
public charter schools are both accountable under the ESEA
requirements, as well as the performance expectations established under
State charter school law and the charter school's authorizer. For
example, we agree with the commenter who noted that charter authorizers
may still revoke or decline to renew a charter based on school
performance using the authorizer's established charter review or
revocation processes, even if the school is in compliance with the ESSA
accountability requirements, and are revising the final regulations to
specify that in the case of an authorizer that acts to revoke or non-
renew a school's charter, such action supersedes the requirements to
implement a comprehensive or targeted support and improvement plan
under Sec. Sec. 200.21 or 200.22, respectively, recognizing that State
charter school laws may impose more rigorous interventions than those
required by the ESEA, as amended by the ESSA. We also agree that public
charter schools must be included and held accountable in the statewide
accountability system using the same methodology (including the same
indicators) that is used with traditional public schools to annually
differentiate school performance and identify schools for support and
improvement. While accountability for charter schools must be overseen
in a way that is consistent with State charter school law, this does
not exempt charter schools from the State's system of annual meaningful
differentiation, identification of schools, and implementation of
support and improvement plans. We have revised Sec. 200.12(b)(5)-(6)
to reiterate the inclusion of public charter schools in these
components of the statewide accountability system, with a corresponding
change to Sec. 200.18(a).
Changes: We have revised Sec. 200.12(c)(2) to clarify that if an
authorized public chartering agency, consistent with State charter
school law, acts to decline to renew or to revoke a charter for a
particular charter school, the decision of the agency to do so
supersedes any notification from the State that such a school must
implement a comprehensive support and improvement or targeted support
and improvement plan under Sec. Sec. 200.21 or 200.22, respectively.
We have also revised Sec. 200.12(b)(5)-(6) to further specify that the
requirements for annual meaningful differentiation and identification
of all public schools include all public charter schools, and made a
corresponding change to Sec. 200.18(a).
Section 200.13 Long-term Goals and Measurements of Interim Progress
Academic Achievement
Comments: Several commenters expressed support for the requirement
that States set long-term goals and measurements of interim progress
for improved academic achievement based on grade-level proficiency as
measured on annual State assessments in mathematics and reading/
language arts.
Other commenters recommended that the Department give States
flexibility to use different measures in setting long-term goals and
measurements of interim progress for academic achievement,
[[Page 86086]]
including individual student growth, metrics that account for student
achievement at all levels (e.g., average scale scores, proficiency
indices), or measures that give credit for students moving toward
proficiency who have not yet attained grade-level proficiency. Some
commenters also stated that the Department's proposed requirement to
base academic achievement goals and measurements of interim progress on
grade-level proficiency ignores section 1111(e)(1)(B)(iii)(I)(bb) of
the ESEA, as amended by the ESSA, which prohibits the Department from
prescribing States' numeric long-term goals and measurements of interim
progress and is inconsistent with Congressional intent to give States
flexibility in setting their goals.
Commenters also suggested that the grade-level proficiency
requirement be retained, but revised to reflect that:
grade-level proficiency must be aligned with minimum State
requirements to enroll in college or enter a career; and
achieving proficiency is the minimum goal for academic
achievement, and so the phrase ``at a minimum'' should be added before
every instance of ``grade-level proficiency.''
Discussion: We appreciate the support of commenters for requiring
goals based on grade-level proficiency. We believe this requirement is
both essential to maintain high expectations for all students and
consistent with the statutory requirements in section 1111(c)(4) of the
ESEA for the accountability system to be based on the State's
challenging academic standards, which must include grade-level academic
achievement standards and may include alternate academic achievement
standards for students with the most significant cognitive
disabilities, and in section 1111(c)(4)(A)(i)(I)(aa) which specifies
that the long-term goals and measurements of interim progress must be
measured by proficiency on the State's annual assessments, which are
aligned to these achievement standards. We also note that the statutory
requirements for challenging academic standards under section
1111(b)(1)(D) specify that a State's standards must align with entrance
requirements for credit-bearing coursework in the system of public
higher education in the State and relevant State career and technical
education standards, so we do not think it is necessary to restate that
in this section. We further maintain that for educators, parents, and
students, but especially, parents and students, information about
whether students are performing at grade-level lets them know whether
their student is meeting their State's expectations for their grade.
In response to commenters who asserted that the proposed
requirement violates the provision in section 1111(e)(1)(B)(iii)(I)(bb)
of the ESEA, as amended by the ESSA, we note that the requirement in
Sec. 200.13(a)(1) for States to set goals for academic achievement
based on grade-level proficiency is consistent with section
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, because
it does not prescribe the numeric long-term goals that a State
establishes for academic achievement, or the progress that is expected
for each subgroup toward those goals. Further, the Department has
determined that the requirement in Sec. 200.13(a)(1)is necessary to
clarify that the reference to academic achievement as ``measured by
proficiency'' in section 1111(c)(4)(B)(i)(I) of the ESEA, as amended by
the ESSA, means academic achievement as measured by the percentage of
students attaining grade-level proficiency because, without that
clarification, the statutory language is vague and ambiguous; absent
clarification, States may have difficulty determining whether they are
complying with the requirement. Moreover, this clarification of the
statutory requirement is necessary to reasonably ensure that the
measure of proficiency used in the Academic Achievement indicator is
consistent with the requirement in section 1111(b)(2)(B)(ii) that a
State's academic assessments provide coherent and timely information
about whether a student is performing ``at the student's grade level.''
In addition, given the Department's rulemaking authority previously
described in the discussion of Cross-Cutting Issues, it is not
necessary for the statute to specifically authorize the Secretary to
issue a particular regulatory provision.
We recognize that States may find value in accounting for students
who are not yet proficient or performing above grade-level or measuring
how students are performing against other measures of performance, such
as student growth. We note that States can set goals for measures other
than grade-level proficiency for their own purposes, if they so choose,
and we further discuss in response to comments in Sec. 200.14 how
progress and performance of students who are below or above the
proficient level may be included in the Academic Achievement indicator
or other indicators in the accountability system and how student growth
is included in the Academic Progress indicator.
Changes: None.
Comments: None.
Discussion: We have determined that the regulations could provide
greater clarity regarding how States are expected to set long-term
goals and measurements of interim progress for academic achievement, to
reflect that those goals are measured by the percentage of students
attaining grade-level proficiency.
Changes: We have revised Sec. 200.13(a)(1) to specify that the
goals and measurements of interim progress are based on the percentage
of students attaining grade-level proficiency on the State's annual
assessments.
Comments: Some commenters requested that the Department require
States to set goals for academic subjects beyond reading/language arts
and mathematics, with some asserting that what they described as the
overly narrow focus on reading/language arts ignores the need for a
well-rounded education, including access to arts and music education.
One commenter specifically recommended that States be required to
establish goals for science, while another commenter wrote that
proposed Sec. 200.13 over-emphasizes student performance on
standardized tests.
Discussion: The proposed regulations are consistent with section
1111(c)(4)(A)(i)(I)(aa) of the ESEA, as amended by the ESSA, which
specifies that States must establish long-term goals and interim
measurements of progress for, at a minimum, academic achievement on the
State's reading/language arts and mathematics assessments. The statute
gives States flexibility to establish goals for other subjects if they
choose, and we do not wish to limit State discretion to address their
own needs and priorities in this area in the final regulations.
Changes: None.
Graduation Rates
Comments: A few commenters requested that the Department clarify
what is meant by ``more rigorous'' in regards to the requirement that,
if a State chooses to use an extended-year adjusted cohort graduation
rate as part of its Graduation Rate indicator, the State must establish
long-term goals for that extended-year rate that are more rigorous than
those established for the four-year adjusted cohort graduation rate. In
particular, two commenters requested clarification that the term ``more
rigorous'' refers to the graduation rate and not the academic
requirements
[[Page 86087]]
for graduation (e.g., standards, levels of proficiency).
Discussion: We generally intend that the ``more rigorous'' goals
required for extended-year cohort graduation rates be higher than those
for four-year adjusted cohort graduation rates, but we decline to
require this in the final regulations in recognition that States have
flexibility to determine how much higher over a State-determined period
of time. We also note that, consistent with the statute, our
regulations for graduation rate goals address only the rates of, and
not the requirements for, high school graduation.
Changes: None.
Comments: None.
Discussion: We believe the proposed regulations could provide
greater clarity on the expectation that the ``more rigorous''
requirement applies to both the long-term goals and measurements of
interim progress for any extended-year rate that the State chooses to
use and are revising Sec. 200.13(b)(2)(ii) to indicate that both long-
term goals and measurements of interim progress should be higher for
each extended-year rate as compared to long-term goals and measurements
of interim progress for the four-year rate.
Changes: We have revised Sec. 200.13(b)(2)(ii) so that the
requirement for more rigorous expectations applies to both the long-
term goals and measurements of interim progress for each extended-year
graduation rate.
Comments: While a few commenters indicated support for State
discretion to establish long-term goals and measurements of interim
progress for both four-year and extended-year graduation rates, two
commenters expressed concern that the four-year rate was over-
emphasized in the proposed regulations, with a potentially negative
impact on schools that focus on dropout prevention.
Discussion: We agree that it is important for States to have the
flexibility within their accountability systems to give credit to
schools for students who graduate from high school in more than four
years, and we believe that the final regulations provide such
flexibility. For example, Sec. 200.14 allows States to measure the
extended-year adjusted cohort rate as part of the Graduation Rate
indicator. Further, the regulations are aligned with section
1111(c)(4)(A)(i)(bb)(AA) of the ESEA, as amended by the ESSA, which
requires that States establish goals for the four-year adjusted high
school graduation rate.
Changes: None.
Expected Rates of Improvement
Comments: A number of commenters supported the requirement that
States establish goals to require greater rates of improvement for
subgroups of students that are lower-achieving and graduate high school
at lower rates. Commenters indicated that this requirement is important
for equity, that it is appropriate to focus on progress for the most
disadvantaged student groups, that it is important to hold schools
accountable for closing achievement and opportunity gaps, and that this
requirement appropriately expects teachers, principals, and other
school leaders to make greater progress with historically underserved
students.
However, multiple other commenters opposed this requirement,
variously stating that students progress at different rates; that no
subgroup should be expected to progress at a greater rate than any
other student subgroup; that the requirement is too prescriptive in
view of Congressional intent to allow States flexibility in
establishing goals; and that it ignores section
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, which
states that nothing in the ESEA, as amended by the ESSA, authorizes the
Department to prescribe the progress expected from any subgroup of
students in meeting long-term goals.
Discussion: We appreciate the support of commenters for the
proposed regulations on setting goals that require greater improvement
from lower-performing student subgroups, which we believe are essential
for clarifying and reasonably ensuring compliance with the requirement
in section 1111(c)(4)(A)(i)(III) of the ESEA, as amended by the ESSA,
that a State's goals for subgroups of students who are behind on
academic achievement and graduation rates take into account the
improvement needed to make significant progress in closing gaps on
those measures. We agree with commenters that students make progress at
different rates, but believe that it is appropriate, with the goal of
closing achievement gaps in mind, for States to set goals to make
greater progress with subgroups of students who are further behind.
Given that the requirement thus falls squarely within the
Secretary's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA (see discussion of the Department's rulemaking
authority under the heading Cross-Cutting Issues), it is not necessary
for the statute to specifically authorize the Secretary to issue this
particular regulatory requirement. Moreover, the requirement does not
violate section 1111(e) of the ESEA, as amended by the ESSA, because
the requirement for States to set goals that require greater rates of
improvement from lower-performing subgroups is within the scope of and
consistent with section 1111(c)(4)(A)(i)(III) of the ESEA, as amended
by the ESSA, which requires that a State's goals for subgroups of
students who are behind on academic achievement and graduation rates
take into account the improvement needed to make significant progress
in closing gaps on those measures. It is also consistent with section
1111(e)(1)(B)(iii)(I)(bb) of the ESEA, as amended by the ESSA, because
it does not prescribe the numeric long-term goals that a State
establishes for academic achievement and graduation rates or the
progress that is expected for each subgroup toward those goals.
Changes: None.
Comments: A few commenters requested that the Department further
clarify what is meant by requiring ``greater rates of improvement'' for
subgroups of students that are lower-achieving and subgroups of
students that graduate high school at lower rates. One commenter
specifically recommended that the Department add language ensuring that
States take into account how much improvement would be necessary for
these subgroups of students to meet long-term goals and make
significant progress in closing statewide proficiency gaps.
Discussion: We recognize that there are many ways in which States
could choose to provide for greater rates of improvement and therefore
decline to make the requested change. Rather, we intend to issue non-
regulatory guidance to support States in setting meaningful long-term
goals and measurements of interim progress.
Changes: None.
English Language Proficiency
Comments: A number of commenters responded to the Department's
directed question asking whether, in setting ambitious long-term goals
for English learners to achieve ELP, States would be better able to
support English learners if the proposed regulations included a maximum
State-determined timeline and, if so, what that maximum timeline should
be. Many commenters appreciated the parameters established in the
proposed regulations for using a uniform procedure to create long-term
goals based on English learners with similar characteristics, but felt
that English learners would be better served if the proposed
regulations also set a maximum State-determined timeline for
[[Page 86088]]
English learners to achieve ELP. The majority of the commenters in
favor of setting a maximum State-determined timeline supported a
maximum timeline of five years for English learners to achieve ELP in
order to best align with existing research. On the other hand, several
commenters urged the Department not to set a limit on the maximum
State-determined timeline for English learners to achieve ELP; these
commenters highlighted the diversity of the English learner population
as a key reason to avoid setting a uniform maximum timeline, and
worried that such a timeline would create incentives for States to
prematurely exit English learners from services. Some commenters
further believed that limiting the maximum State-determined timeline
(such as five years) would provide a disincentive for States to adopt
certain types of evidence-based language instructional education
programs, such as dual-language programs, in which English learners on
average achieve proficiency over a longer period of time, but have been
found to perform better in the academic content areas compared to
English learners who participated in other types of language
instructional education programs. In addition, some commenters believed
that creating a limit on the maximum timeline in the regulations
constitutes overreach and goes beyond any necessary requirements to
comply with the statute.
Discussion: We agree with commenters who stated that the
heterogeneity of the English learner population would make it difficult
to set an appropriate maximum State-determined timeline that would be
the same across all States for all English learners to achieve ELP.
Additionally, the Department does not wish to create a disincentive for
States in adopting any types of language instructional education
programs that have been demonstrated to be effective through research,
nor do we want to encourage States to cease providing necessary
services to English learners to avoid exceeding a certain timeline.\1\
Although there is a body of research on the time it takes for English
learners to achieve ELP which would support a maximum State-determined
timeline of five years, most research identifies a range of years over
which English learners typically achieve ELP, based on a number of
factors including the diverse and unique needs of the English learner
population.\2\ Therefore the final regulations do not establish the
same maximum State-determined timeline across all States for English
learners to achieve ELP, but leave that determination to States'
discretion.
---------------------------------------------------------------------------
\1\ For more information, including resources and links to
research, on providing high-quality instruction and supports for
English learners, please see the Department's non-regulatory
guidance on English Learners and Title III of the ESEA, as amended
by the ESSA, found here: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiiiguidenglishlearners92016.pdf.
\2\ See, for example, Hakuta, K., Goto Butler, Y., & Witt, D.
(2000). ``How long does it take English learners to attain
proficiency?'' University of California Linguistic Minority Research
Institute Policy Report 2000-1; MacSwan, J., & Pray, L. (2005).
``Learning English bilingually: Age of onset of exposure and rate of
acquisition among English language learners in a bilingual education
program.'' Bilingual Research Journal, 29(3), 653-678; Motamedi,
J.G. (2015). ``Time to reclassification: How long does it take
English language learners in the Washington Road Map school
districts to develop English proficiency?'' U.S. Department of
Education, Institute of Education Sciences; and Slavin, R.E.,
Madden, N.A., Calder[oacute]n, M.E., Chamberlain, A., & Hennessy, M.
(2011). ``Reading and language outcomes of a five-year randomized
evaluation of transitional bilingual education.'' Educational
Evaluation and Policy Analysis, 33 (1), 47-58.
---------------------------------------------------------------------------
We believe it is appropriate for a State to retain the flexibility
to adopt a uniform procedure for establishing its own maximum timeline,
with applicable timelines within that maximum for each category of
English learners to attain proficiency, based on selected student
characteristics it chooses from the list in Sec. 200.13(c) and
research, for purposes of its long-term goals. Thus, we are revising
the final regulations to require that a State set an overall maximum
timeline for English learners to achieve ELP on the basis of research
and describe its procedure and rationale in its State plan, in Sec.
200.13(c)(2)-(3).
Additionally, based on the comments received in response to the
directed question, we believe greater clarity is needed to explain how
the State-determined maximum timeline interacts with the student-level
characteristics of English learners included in Sec. 200.13 that are
used to set timelines and student-level progress targets. More
specifically, the proposed regulations were not sufficiently clear that
a State must create and use a consistent method for evaluating selected
student-level characteristics, including the student's level of ELP at
the time of a student's identification as an English learner, and,
based on those characteristics, determine the appropriate timeline for
the student to attain ELP within the State's overall maximum timeline.
The applicable timeline for a particular category of English learners
is then broken down to create targets for progress on the annual ELP
assessment for that category of English learners. In this way, the
State's uniform procedure is used to create student-level targets for
English learners who share particular characteristics. We are revising
Sec. 200.13(c) to provide greater clarity on this process for setting
timelines and student-level targets. Further, we note that both the
proposed and final regulations make clear that an English learner must
not be exited from English learner services or status until attaining
English language proficiency, without regard to such timeline.
Further, we are revising Sec. 200.13(c) to make a clearer
distinction between the State-determined maximum timeline that informs
the student-level targets (the topic on which we asked a directed
question in the NPRM) and the overall timeframe for which the State
establishes long-term goals. Thus, the final regulations specify that
the State-level long-term goals and measurements of interim progress
are based on increases in the percentage of all English learners in the
State who make annual progress toward ELP (i.e., meet their student-
level targets, based on the uniform procedure described previously).
For example, a State's goal could be that within three years, 95
percent of English learners will make sufficient progress, based on the
student-level targets, on the ELP assessment to achieve ELP within the
State's expected timeline; the measurements of interim progress might
be 85 percent and 90 percent in years one and two respectively. That
State may have timelines that expect English learners who started at
lower proficiency levels to achieve proficiency within 5-7 years, and
English learners who start at more advanced levels and at younger ages
achieving proficiency on shorter timelines. The State will set the ELP
assessment progress targets based on research and data particular to
the ELP assessment used; for those English learners at the lower levels
of proficiency and younger ages, a larger score change or level change
may typically be expected than for those who started at higher
proficiency levels and for older students. By tailoring progress
targets to categories of English learners, the State can realistically
expect all English learners to show progress.
Changes: We have revised Sec. 200.13(c) to require that: (1)
States identify and describe in their State plans how they establish
long-term goals and measurements of interim progress for increases in
the percentage of all English learners in the State making annual
progress toward attaining ELP; (2) States describe in their State plans
a uniform procedure, applied to all English learners in the State in a
consistent manner, to establish research-
[[Page 86089]]
based student level targets on which their long-term goals and
measurements of interim progress are based; and (3) the description
includes a rationale for determining the overall maximum number of
years for English learners to attain ELP in its uniform procedure for
setting research-based, student-level targets, and the applicable
timelines over which English learners sharing particular
characteristics are expected to attain ELP within the State-determined
maximum number of years. We have also revised 200.13(c)(2) to clarify
that a State's uniform procedure includes three elements: The selected
student characteristics, including the student's initial level of ELP;
the applicable timelines (up to a State-determined maximum number of
years) for English learners sharing particular characteristics to
attain ELP after the student's identification; and the student-level
targets that expect English learners to make annual progress toward
attaining English language proficiency within the applicable timelines
for such students.
Comments: Several commenters wrote in support of the particular
student-level characteristics of English learners included in proposed
Sec. 200.13(c) that States would use to determine long-term goals and
measurements of interim progress for English learners. These commenters
expressed the view that the proposed regulations would provide States
appropriate flexibility to establish long-term goals that were tailored
to the diverse needs of the English learner population and that would
support effective instruction for English learners by ensuring goals
were meaningful and attainable for students and educators.
In addition, a number of commenters recommended including
additional student-level characteristics, including disability status,
the type of language instruction educational program an English learner
receives, and other State-proposed characteristics that could have an
impact on a student's progress in achieving ELP.
Discussion: We appreciate feedback from commenters on the list of
student-level characteristics of English learners that may be taken
into account in establishing long-term goals and measurements of
interim progress for attaining ELP. While we recognize that research
has shown that disability status can affect an English learner's
ability to attain proficiency in English, and that there are cases (as
noted in Sec. 200.16(c)) where a student's type of disability directly
prevents him or her from attaining proficiency in all four domains of
ELP, we note that there are many types of disabilities that have
minimal or no impact on an English learner's ability to attain ELP and
such a determination would need to be made on an individualized basis.
Given this complexity and the difficulty in setting rules that would
apply consistently to determine when it is, and is not, appropriate to
set different expectations for attaining ELP for an English learner
with a disability, we believe it is best to address these issues in
non-regulatory guidance.
Similarly, we appreciate that students enrolled in certain types of
language instructional programs, including dual language programs, may
take longer to attain ELP, and it was not our intent to discourage LEAs
or schools from adopting such methods. However, we believe that the
current list of characteristics in Sec. 200.13 that may be considered
already includes significant flexibility for States to design
appropriate and achievable goals and measurements of interim progress
for English learners. We believe that encouraging implementation of
high-quality programs that support English learners toward acquisition
of ELP is better addressed in non-regulatory guidance.\3\
---------------------------------------------------------------------------
\3\ See, for example, the Department's non-regulatory guidance
on English Learners and Title III of the ESEA, as amended by the
ESSA, found here: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiiiguidenglishlearners92016.pdf. Please also see the 2016
policy issued by the U.S. Department of Health and Human Services
and U.S. Department of Education Policy Statement on Supporting the
Development of Children who are Dual Language Learners in Early
Childhood Programs which addresses bilingualism and nurturing the
native and home languages of our youngest learners. The statement
and its recommendations can be found here: https://www.acf.hhs.gov/sites/default/files/ecd/dll_policy_statement_final.pdf.
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters wrote in support of the general
parameters for setting long-term goals included in Sec. 200.13(c),
noting that they provided States with flexibility to set goals in ways
that are both ambitious and attainable and recognize the diversity
within the English learner subgroup. But a few commenters stated that
the proposed regulations focused too much on attainment of, rather than
progress toward, achieving English language proficiency, and would
require States to establish goals for both progress and proficiency
similar to Annual Measurable Achievement Objectives (AMAOs) under NCLB.
One commenter recommended using the statutory language of ``making
progress in achieving'' ELP, rather than ``attaining.'' Another
commenter was concerned that proposed Sec. 200.13(c) was contrary to
statutory intent in this area, and objected to imposing any additional
requirements on States regarding their long-term goals and measurements
of interim progress for English learners, believing such decisions
should be made by States.
Discussion: We appreciate commenters' support for Sec. 200.13(c).
We also recognize that the statute uses progress towards ``achieving''
rather than ``attaining'' English language proficiency, but disagree
with commenters that there is a meaningful distinction between
``achieving'' and ``attaining'' ELP. We further disagree with
commenters who asserted that the proposed requirements for long-term
goals for English Learners making progress in achieving ELP were too
prescriptive and overly focused on attainment of ELP. We continue to
believe that the parameters in Sec. 200.13(c) are essential for
ensuring that States establish meaningful long-term goals and
measurements of interim progress that are appropriate for the diverse
range of English learners found in every State.
Moreover, we do not agree that the requirements in Sec. 200.13(c)
would require States to establish attainment goals similar to AMAO-2
under the ESEA, as amended by the NCLB. Rather, States will set goals
and measurements of interim progress based on the percentage of
students attaining their student-level progress targets each year, as
clarified in revised Sec. 200.13(c)(1)-(2). There is no requirement
for States to set a goal regarding the number or percentage of English
learners achieving English language proficiency.
With respect to the comment that proposed Sec. 200.13(c) was
contrary to statutory intent in this area, and that any additional
requirements regarding long-term goals and measurements of interim
progress for English learners should be left to State discretion, as
previously described in the discussion of Cross-Cutting Issues, we
disagree with the argument that a regulation that sets parameters on
the way a State implements its discretion under the statute is
inherently inconsistent with the statute. Further, we believe the
parameters established by Sec. 200.13(c) are necessary to ensure that
the goals set by States, and timelines underlying those goals, are
reasonable and will help to ensure compliance with the requirement in
section 1111(c)(4) that a statewide accountability system be designed
to improve student academic achievement. The regulations do not dictate
a specific maximum number of years for any English learner to attain
proficiency, and do not dictate that a State choose particular student
characteristics in setting its progress
[[Page 86090]]
timelines, other than initial ELP level. As explained in the NPRM,\4\
initial ELP level as a factor in time-to-proficiency is supported by
substantial amounts of research and should help ensure fair treatment
of schools with high numbers of English learners in the State
accountability system.
---------------------------------------------------------------------------
\4\ See: 81 FR 34540, 34544 notes 1 and 2 (May 31, 2016).
---------------------------------------------------------------------------
Changes: None.
Other Topics
Comments: The Department received a variety of supportive comments
on proposed Sec. 200.13. Several commenters stated that the proposed
regulations, in general, give States the authority and discretion to
establish long-term goals and appreciated the flexibility afforded to
States in this matter. A few commenters indicated that they appreciated
that the Department emphasized holding all students to the same high
standards of academic achievement. Commenters also expressed support
for requiring States to:
Set academic achievement goals for reading/language arts
and mathematics separately;
establish goals for student subgroups as well as for all
students; and
use the same multi-year timeline to set long-term goals
for all student subgroups.
Discussion: We appreciate the support from commenters for these
regulations. We agree that it is important for States to have
flexibility to establish long-term goals and measurements of interim
progress that are appropriate for their unique contexts. Further, to
provide additional clarity on these requirements, we are revising Sec.
200.13 to emphasize the required use of the same multi-year timeline to
set long-term goals for all students and for each subgroup of students,
except that the requirement for disaggregation of long-term goals and
measurements of interim progress does not apply to goals related to
ELP.
Changes: We have revised Sec. 200.13 so that the requirement for a
State to use the same multi-year timeline to achieve its long-term
goals for all students and for each subgroup of students applies across
all three areas in which a State must set long-term goals--achievement,
graduation rates, and ELP--except that the requirement for
disaggregation of long-term goals and measurements of interim progress
does not apply to goals related to ELP.
Comments: A few commenters recommended that the Department adjust
the language in Sec. 200.13(a)(2)(i) to clarify what it means to apply
the same standards of academic achievement to all public schools in the
State, except as provided for students with the most significant
cognitive disabilities. Several commenters recommended that the
Department make clear that alternate academic achievement standards for
students with the most significant cognitive disabilities who take an
alternate assessment must be based on the same grade-level academic
content standards as for all other students. One commenter suggested
that the Department use the phrase ``academic achievement standards''
instead of ``standards of academic achievement'' to be more precise in
meaning and consistent with the statute.
Discussion: The Department agrees that it is important for the
language of the regulations to be clear regarding expectations for
students with the most significant cognitive disabilities, to whom the
same grade-level academic content standards apply, even though their
progress may be assessed using an alternate assessment aligned with
alternate academic achievement standards. However, because the statute
and applicable regulations on standards and assessments address these
concerns and because this provision is specifically focused on the
academic achievement standards, we decline to add language regarding
grade-level academic content standards in Sec. 200.13. We agree that
referencing alternate academic achievement standards, as described in
section 1111(b)(1)(E) of the ESEA, as amended by the ESSA, and changing
the phrase ``standards of academic achievement'' to ``academic
achievement standards'' is appropriate and helpful to clarify
requirements for long-term goals and measurements of interim progress
as they pertain to students with the most significant cognitive
disabilities.
Changes: We have revised the language in Sec. 200.13(a)(2)(i) to
be clear that the requirements for long-term goals and measurements of
interim progress for academic achievement against grade-level
proficiency refer to the State's academic achievement standards, as
described in section 1111(b)(1) of the Act, and to make clear that the
performance of students with the most significant cognitive
disabilities may be assessed against alternate academic achievement
standards defined by the State consistent with section 1111(b)(1)(E) of
the ESEA, as amended by the ESSA.
Comments: One commenter recommended that the Department establish a
minimum annual percentage increase in proficiency rates necessary to
meet the requirement that long-term goals and measurements of interim
progress be ``ambitious.'' Another commenter requested that the
Department establish parameters for what is meant by an interim
measurement of progress, without specific suggestions for what the
parameters should be.
Discussion: We agree that it will be important for States to
establish meaningful and ambitious long-term goals and measurements of
interim progress ambitious, but we believe the final regulations
provide States with the appropriate level of discretion in this area,
consistent with the statute. In addition, we intend to issue non-
regulatory guidance on this topic to support States in setting
meaningful long-term goals and measurements of interim progress.
Changes: None.
Comments: A few commenters requested that the Department add
clarifying language to communicate that scores from assessments given
in students' native languages should be included in the accountability
system and publicly reported. Additional commenters suggested that the
Department clarify that a State's long-term goals and measurements of
interim progress should pertain, where applicable, to a Native American
language of instruction for students instructed primarily through
Native American languages.
Discussion: We are regulating separately on assessment
requirements, but we note that the statute provides in section
1111(b)(2)(F) that States make every effort to develop student academic
assessments in languages that are present to a significant extent in
the student population. For assessments that are part of a State's
assessment system and that are given to English learners in the
student's native language for reading/language arts, mathematics, and
science, the results would be included in the State's accountability
system. Because this is clear under the statute, we do not believe it
is necessary to add this to the regulations.
With regard to the comment about instruction through a Native
American language, nothing in Sec. 200.13 addresses the language of
instruction, and thus no change is needed.
Changes: None.
Comments: One commenter requested that States be required to
establish a uniform procedure for setting long-term goals and
measurements of interim progress for students with disabilities, taking
into account student characteristics and available research, similar to
what is required of States in
[[Page 86091]]
establishing goals for English learners toward achieving ELP under
Sec. 200.13(c). This commenter suggested that such a process would be
beneficial to students with disabilities and help ensure that goals for
students with disabilities are set in alignment with accountability
requirements as well as a student's individualized education program
(IEP).
Discussion: The Department included the requirement that States
establish uniform procedures with regards to setting goals for English
learners toward achieving language proficiency in order to allow
differentiation of goals for categories of English learners that share
similar characteristics, including initial level of ELP. We believe
this is appropriate for English learners, given the varied needs and
shifting composition of the particular students included in the English
learner population and for whom the goal is to attain English
proficiency and exit the program, but do not think it is applicable or
appropriate to require States to develop such procedures for setting
goals for children with disabilities who, while their educational needs
also vary, are entitled to receive special education and related
services for as long as determined necessary by their IEP teams in
order to receive a free appropriate public education, and who therefore
are not routinely exiting the subgroup. Rather than a differentiated
process based on particular student characteristics, we encourage
States to consider how they may set long-term goals and measurements of
interim progress in ways that expect greater rates of progress, and
result in closing educational achievement gaps, for low-performing
subgroups, including--if applicable--children with disabilities. We
intend to issue non-regulatory guidance to assist States in these
efforts.
Changes: None.
Comments: One commenter recommended that the Department make clear
that failing to meet a State's established measurements of interim
progress and long-term goals is not a violation of the law.
Discussion: We do not believe this clarification is necessary, as
neither the statute nor the final regulations suggest or imply that a
failure to meet State-determined goals or measurements of interim
progress would be considered a violation of the law.
Changes: None.
Comments: One commenter indicated that the emphasis on on-time
graduation and grade-level proficiency is contrary to child development
because some students require more time and support than others to
achieve the same goal.
Discussion: We agree with the commenter that students have unique
needs and require different types and levels of support and amounts of
time to reach certain goals. However, we disagree that establishing
goals for grade-level proficiency and high school graduation is
developmentally inappropriate; such goals set high expectations for
students and provide valuable information about whether students are
performing on grade-level and are prepared to graduate from high
school. Additionally, the regulations align to the requirements in
section 1111(c)(4)(A) of the ESEA, as amended by the ESSA, that States
set long-term goals and measurements of interim progress for academic
achievement based on proficiency on annual assessments and for high
school graduation rates.
Changes: None.
Comments: None.
Discussion: We have determined that Sec. 200.13(a)(1) and Sec.
200.13(b)(1) could provide greater clarity on what information States
have to include in their State plans regarding their long-term goals
and measurements of interim progress and have revised the regulations
to make clear that States must identify and describe how they
established their long-term goals and measurements of interim progress.
We believe the language in the proposed regulations was vague and that
without this clarification States may have difficulty determining
whether they are complying with the requirement.
Changes: We have revised the language in Sec. 200.13(a)(1) and
Sec. 200.13(b)(1) to clarify what information regarding long-term
goals and measurements of interim progress a State must include in its
consolidated State plan.
Section 200.14 Accountability Indicators
Comments: One commenter opposed the requirement in proposed Sec.
200.14(a) that the same measures be used within each indicator for all
schools, asserting that this requirement would unfairly penalize
students in alternative schools.
Discussion: In general, we believe that statewide accountability
systems must include the same measures within each indicator in order
to provide fair, consistent, and transparent accountability
determinations. However, as we discuss later in these final
regulations, we have revised Sec. 200.18(d)(1)(iii) to incorporate the
flexibility included in proposed Sec. 299.17 that allows States to use
a different methodology for identifying for comprehensive support and
improvement and targeted support and improvement schools that are
designed to serve unique student populations, including alternative
schools. Given that flexibility, we decline to make any changes to this
requirement.
Changes: None.
Comments: Several commenters expressed appreciation for the
Department's clarification in the preamble of the NRPM that States can
update and modify indicators and measures over time. In particular,
these commenters noted that such flexibility would allow States to
include additional indicators as the research basis for such indicators
matures, consistent with the proposed requirements in section
200.14(d). One commenter suggested we clarify that States may include
indicators they plan to use in the future, when data is available,
within their State plans so that their intentions are transparent.
Discussion: We appreciate the support we received from commenters
regarding the flexibility for States to change or add measures to their
accountability systems over time. As we discussed in the NPRM, we
recognize that States may want to update their accountability systems
after receiving additional input or as new data become available.
However, because States may not yet know which measures they would
change or add to their accountability system at a later date, we do not
believe it would be appropriate to require States to include a
discussion of that topic in their State plans. Therefore, we decline to
add such a requirement to the final regulations.
Changes: None.
Comments: A number of commenters broadly opposed the requirements
in proposed Sec. 200.14 and recommended the Department give States as
much flexibility as possible in developing and implementing indicators
and measures within their statewide accountability systems. Some of
these commenters believe the proposed requirements reduce flexibility
for States and LEAs, inconsistent with the ESEA. Other commenters
asserted that the proposed requirements would limit States to a
specific number of indicators, contrary to the statutory requirements.
Discussion: We agree with the commenters that States have
flexibility in defining the indicators that are most appropriate for
their context. However, the ESEA, as amended by the ESSA, includes
specific requirements for each indicator and clearly identifies which
indicators must be included in the accountability system, and these
statutory requirements are reflected in the final regulations. We also
note that
[[Page 86092]]
under the statute, while States may only have a single indicator of
Academic Achievement, Academic Progress, Progress in Achieving English
Language Proficiency, and Graduation Rate, they may have more than one
indicator of School Quality or Student Success, and neither the statute
nor the proposed regulations limit the number of indicators of School
Quality or Student Success States may include.
Changes: None.
Comments: Some commenters encouraged the Department to require that
States report disaggregated data on the homeless student subgroup,
foster student subgroup, or both, on each accountability indicator
given the unique needs of students in each of those groups.
Discussion: We agree with the commenters that foster and homeless
students have unique educational needs and that it may be helpful for
stakeholders to have data on each group's performance on the
accountability indicators. To that end, sections 1111(h)(1)(C)(ii) and
1111(h)(1)(C)(iii)(II) of the ESEA, as amended by the ESSA, require
that each State report on disaggregated academic achievement and
graduation rates for students identified as homeless or as a child in
foster care. However, section 1111(c)(2), which identifies subgroups
for the purposes of accountability, does not include such students and,
thus, reporting on those subgroups is not required for the other
accountability indicators. While States are certainly welcome, and even
encouraged, to report separately on the performance of homeless and
foster students on all of the accountability indicators, the Department
declines to add such a reporting requirement.
Changes: None.
Comments: In discussing the requirement for a single summative
rating in proposed Sec. 200.18, one commenter recommended specifying
that the rating be based on all accountability indicators, including
the performance of all students and each subgroup of students on the
State's long-term goals and measurements of interim progress.
Discussion: We agree with the commenter that it is critical for the
annual meaningful differentiation of schools, as described in Sec.
200.18, to be based on all indicators. Further, we appreciate that this
suggestion highlighted a statutory requirement that was not
sufficiently recognized in the proposed regulations. Under section
1111(c)(4)(B)(i) and (iii) of the ESEA, as amended by the ESSA,
indicators of Academic Achievement and Graduation Rates must be based
on a State's long-term goals and measurements of interim progress.
Accordingly, we believe it is best to address this comment in Sec.
200.14, rather than in Sec. 200.18, so that we may emphasize this
relationship in the requirements related to indicators, rather than the
overall system of annual meaningful differentiation.
Changes: We have revised Sec. 200.14(b)(1) and (3) to specify that
the Academic Achievement and Graduation Rate indicators must be based
on the long-term goals established under Sec. 200.13.
Comments: A few commenters requested that the accountability
indicators include specific provisions for students instructed
primarily through Native American languages, including a disaggregated
subgroup for such students, and provisions relating to inclusion of
assessment scores of such students.
Discussion: We decline to add specific provisions for students
instructed through a specific language medium or through a particular
instructional approach. In addition, the student subgroups for the
indicators are specifically required by the statute (section 1111(c)(2)
of the ESEA, as amended by the ESSA), and we decline to expand those
subgroups.
Changes: None.
Academic Achievement Indicator
Comments: Numerous commenters recommended clarifying the
requirement in proposed Sec. 200.14(b)(1)(i) so that it allows for a
greater range of approaches in how States measure grade-level
proficiency in the Academic Achievement indicator. Some commenters were
concerned that the Department's interpretation of ``grade-level
proficiency'' would mean only the percentage of students that attain a
proficient score on State assessments would be recognized in the
indicator, which they feel narrowly focuses States and schools on
students just below or just above the State's achievement standards for
proficiency. A few commenters instead recommended modifying the final
regulation to affirmatively permit States to use a measure of
achievement that considers student performance at multiple levels of
achievement in order to measure grade-level proficiency. Some of these
commenters requested flexibility for States to examine student
performance at each level of achievement on the State's academic
achievement standards and create an index that awards partial credit to
a student who is not yet proficient and additional credit to a student
who is at an advanced level. Similarly, other commenters suggested
permitting States to consider a school's average scale score, rather
than proficiency rates, as the measure of grade-level proficiency in
the Academic Achievement indicator.
Discussion: Section 1111(c)(4)(B)(i)(I) of the ESEA, as amended by
the ESSA, states that the Academic Achievement indicator must be
``measured by proficiency on the annual assessments required under
subsection (b)(2)(B)(v)(I),'' and we agree with commenters that further
clarity on this language is needed. Because proficiency must be
measured by the State's annual assessments, we believe it is helpful to
clarify that grade-level proficiency in Sec. 200.14 means, at a
minimum, a measure of student performance at the proficient level on
the State's academic achievement standards.
We share the commenters' concerns that a focus exclusively on
percent proficient could create an incentive for schools to focus too
narrowly on students who are just above, or just below, the threshold
for attaining proficiency and that additional ways of measuring
proficiency could improve the statistical validity and reliability of a
State's accountability system. For these reasons, we are revising Sec.
200.14(b)(1)(ii) to clarify that the scores of students at other levels
of achievement may be incorporated into the Academic Achievement
indicator. Under the revisions to Sec. 200.14(b)(1)(ii), a State that
chooses to recognize schools for the performance of students that are
below the proficient level and, at its discretion, for the performance
of students that are above the proficient level within the Academic
Achievement indicator must do so in a way such that (1) a school
receives less credit for the score of a student that is not yet
proficient than for the score of a student that has reached or exceeded
proficiency, and (2) the credit a school receives for the score of an
advanced student does not fully mask or compensate for the performance
of a student who is not yet proficient. For example, a State may award
each school 0.5 points in the achievement index for every student that
scores at a level below the proficient level on the State's assessment,
1.0 points for every student that achieves a score at the proficient
level, and 1.25 points for every student that scores at levels above
the proficient level, but may not award 1.5 points for each of these
more advanced students (as such an approach would fully compensate for
the performance of a student who is not yet proficient). These
safeguards allow for the scores of students at other levels of
achievement
[[Page 86093]]
to contribute toward a school's overall determination, consistent with
many commenters' concerns, while minimizing the extent to which the
inclusion of measures of student performance at other levels may
detract from the required information in the indicator: Proficiency on
the State assessments. In addition, we note that all States, including
those that choose to adopt an achievement index, must report
information on its State and LEA report cards under section 1111(h) of
the ESEA, as amended by the ESSA, and Sec. 200.32, disaggregated by
each subgroup of students, on the number and percentage of students
performing at each level of achievement; this provides another
safeguard to ensure that information on proficiency on the State
assessments is clear and transparent.
Because the calculation of an average scale score treats scores
above the proficient level the same as scores below the proficient
level, however, the use of such scores in the Academic Achievement
indicator could result in an average scale score for the school above
the proficient level even if a majority of the students in the school
are not yet proficient. Such an outcome on the Academic Achievement
indicator would not be consistent with the statutory requirement to
measure students' proficiency on the State assessments, and is thus
excluded from the list of additional measures that a State may
incorporate in its Academic Achievement indicator under new Sec.
200.14(b)(1)(ii).
We also note that the ESEA, as amended by the ESSA, offers ample
flexibility for States to account for student progress and achievement
at all levels in their statewide accountability systems, particularly
by using measures of student growth in the Academic Progress indicator
(for elementary and middle schools) or Academic Achievement indicator
(for high schools), or in, for example, measures related to students
taking and succeeding in accelerated coursework or the percentage of
students scoring at advanced levels on statewide assessments as a
School Quality or Student Success indicator. We strongly encourage
States to consider these other ways to help recognize the work schools
are doing to help low-performing students reach grade-level standards
and high-performing students in maintaining excellence and support
schools in increasing access to advanced pathways for all students,
while maintaining the focus of the Academic Achievement indicator on
grade-level proficiency based on the State assessments.
Changes: We have revised and reorganized Sec. 200.14(b)(1)(i)-(ii)
to clarify that the Academic Achievement indicator must include a
measure of student performance at the proficient level against a
State's academic achievement standards, and may also include measures
of student performance below or above the proficient level, so long as
(1) a school receives less credit for the performance of a student that
is not yet proficient than for the performance of a student at or above
the proficient level; and (2) the credit a school receives for the
performance of a more advanced student does not fully compensate for
the performance of a student who is not yet proficient.
Comments: A number of commenters supported the requirements in
Sec. Sec. 200.13 and 200.14 that require academic achievement to be
measured based on grade-level proficiency, as an important check to
align school accountability requirements with challenging State
academic standards and to ensure all students and subgroups of students
are supported in meeting rigorous academic expectations. However,
several commenters generally opposed the use of student test scores in
the Academic Achievement indicator, or asserted that the proposed
requirements would continue an overemphasis on test-based
accountability systems.
Discussion: We agree with commenters that it is important for the
Academic Achievement indicator to include a measure of students' grade-
level proficiency, aligned with the State's challenging academic
standards, as a way to promote excellence for all students. We also
believe this provision is critical to fulfill the statutory purpose of
title I to close educational achievement gaps, and are revising the
final regulations to make the alignment of grade-level proficiency with
the State's challenging academic standards clearer.
While we recognize other commenters' concerns regarding a focus on
grade-level proficiency on State assessments in the Academic
Achievement indicator, we disagree that its inclusion is unwarranted.
First, section 1111(c)(4) of the ESEA requires the accountability
system to be based on the State's challenging academic standards, which
includes challenging academic achievement standards for each grade
level and subject that must be assessed and included in the
accountability system. Second, section 1111(c)(4)(B)(i) specifies that
the Academic Achievement indicator must be measured by proficiency on
the annual assessments required by section 1111(b)(2)(B)(v)(I), which
must assess student performance against the challenging academic
achievement standards for the grade in which a student is enrolled, and
in the case of students with the most significant cognitive
disabilities, may assess performance against alternate academic
achievement standards that are aligned with the State's academic
content standards for the grade in which a student is enrolled. In
addition, section 1111(c)(4)(C) of the ESEA requires that the Academic
Achievement indicator receive ``substantial'' weight in the
accountability system, a distinction not afforded to the indicators of
School Quality or Student Success, thus demonstrating intent that the
Academic Achievement indicator based on State assessments receive
greater emphasis in statewide accountability systems.
Finally, there are significant opportunities for States to design
multi-measure accountability systems under the law and the final
regulations that emphasize student performance and growth at all
levels, not just proficient and above, as well as non-test-based
measures that examine whether the school is providing a high-quality
and well-rounded education. For example, we encourage States to
consider using measures of student growth on their annual assessments,
as these measures can identify schools where students that are not yet
proficient but are making significant gains over time and closing
achievement gaps. States may also consider adding measures related to
students taking and succeeding in accelerated coursework as a School
Quality or Student Success indicator to recognize the work schools are
doing with high-performing students and encourage schools to increase
access to and participation in advanced pathways for all students.
Changes: We have revised and reorganized Sec. 200.14(b)(1)(i) to
clarify that a grade-level proficiency measure is based on the State's
academic achievement standards under section 1111(b)(1) of the Act,
including alternate academic achievement standards for students with
the most significant cognitive disabilities defined by the State
consistent with section 1111(b)(1)(E) of the Act.
Comments: A few commenters supported the requirement in proposed
Sec. 200.14(b)(1)(i) that a State's Academic Achievement indicator
equally measure grade-level proficiency on the statewide reading/
language arts and mathematics assessments required under title I of the
ESEA. Other commenters opposed this
[[Page 86094]]
requirement, with some misunderstanding it as a requirement for
equivalent assessments in both subjects (despite being based on
different academic standards) and others asserting that it is
inconsistent with the statute, including section
1111(e)(1)(B)(iii)(IV)-(V) of the ESEA regarding the Secretary's
authority to regulate on the weight of any measure or indicator or the
specific methodology that States use to meaningfully differentiate and
identify schools.
Discussion: We disagree with commenters that the Department lacks
authority to regulate in this area, given the Secretary's rulemaking
authority under GEPA, the DEOA, and section 1601(a) of the ESEA, as
amended by the ESSA, and that these regulations fall squarely within
the scope of section 1111(c)(4), consistent with section 1111(e) of the
ESEA, as amended by the ESSA (see discussion of the Department's
general rulemaking authority under the heading Cross-Cutting Issues).
Moreover, these regulations are consistent with our rulemaking
authority given that section 1111(c)(4) requires the statewide
accountability system to be based on the challenging State academic
standards for both reading/language arts and mathematics and section
1111(c)(4)(B)(i)(I) requires the indicator to measure proficiency in
both subjects. However, we agree with other commenters that the
proposed requirement to equally measure grade-level proficiency on
State assessments in reading/language arts and mathematics was
ambiguous, and that it could be misinterpreted to require these
assessments to be able to be equated (e.g., by using the same scale),
even though they must be based on separate academic content and
achievement standards. In response, we are removing the requirement,
and believe it is more appropriate to address how reading/language arts
and mathematics, as measured by the State assessments, may be
meaningfully considered within the Academic Achievement indicator in
non-regulatory guidance.
Changes: We have revised Sec. 200.14(b)(1) to remove the
requirement for States to ``equally measure'' proficiency in reading/
language arts and mathematics.
Comments: One commenter suggested the Department replace the slash
(/) in ``reading/language arts'' with ``or'' to make the language
consistent with the statutory requirements to assess students in
reading or language arts.
Discussion: We appreciate the commenter's point that the ESEA, as
amended by the ESSA, uses ``reading or language arts'' to describe the
academic content standards in these subjects. We note that the prior
authorizations of the ESEA, the NCLB and the Improving America's
Schools Act of 1994, also used the term ``reading or language arts'' to
describe standards in these subjects, while the corresponding
regulations on such acts used the term ``reading/language arts.'' As
this is consistent with policy and practice for over two decades as a
way to describe the body of content knowledge in this subject area--and
we are unaware of significant confusion on this matter--we believe it
is unnecessary to change ``reading/language arts'' in Sec. 200.14 and
other sections in the final regulations.
Changes: None.
Comments: A couple of commenters supported the requirement to
calculate the Academic Achievement indicator, based on student
participation in the State's annual assessments, by using the greater
of 95 percent of all enrolled students or the number of students that
participated in such assessments.
Discussion: We appreciate the commenters' support for the
clarification in proposed Sec. 200.14(b)(1) of the requirements for
calculating the Academic Achievement indicator.
Changes: None.
Comments: In order to allow States to incorporate measures of
student growth into their accountability systems, one commenter asked
the Department to clarify that, consistent with the proposed
requirements for high schools, an elementary or middle school could
also include growth on the statewide assessments in its Academic
Achievement indicator as part of a composite index and to include
parameters to ensure these growth measures are meaningful and reflect
student learning.
Discussion: We agree with the commenter that States should have the
ability to incorporate student growth into their accountability
systems, but disagree that growth measures are permissible in the
Academic Achievement indicator for non-high schools. Section
1111(c)(4)(B)(i)(II) of the ESEA specifies that, for high schools,
States may include a measure of student growth on State assessments as
part of the Academic Achievement indicator. However, the statute
specifies that for elementary and middle schools, student growth may be
included in the Academic Progress indicator described in section
1111(c)(4)(B)(ii) rather than the Academic Achievement indicator. We
also note that States may include a measure of student growth as part
of a School Quality or Student Success indicator, consistent with the
requirements in Sec. 200.14, providing ample opportunity for States to
include measures of growth in their indicators. Finally, because the
use of student growth measures is optional and because section
1111(e)(1)(B)(iii)(III) limits the Department from prescribing specific
metrics used to measure growth, we believe additional considerations
for States in measuring student growth are best addressed in non-
regulatory guidance.
Changes: None.
Academic Progress Indicator
Comments: Several commenters supported the use of growth in a
State's accountability system and the flexibility provided around
growth. One commenter asserted that a State should not be allowed to
include growth on statewide assessments in its State's system unless or
until adjustments can be made to account for factors beyond a school or
teacher's control, including homelessness and poverty.
Discussion: We appreciate the commenters' support for the inclusion
for growth in statewide accountability systems, but believe that States
should have discretion, consistent with the statute, to develop and
implement their own measures of student growth so long as those
measures meet the other requirements of Sec. 200.14, including
validity, reliability, and comparability. The Department declines to
restrict the growth models that States may use in order to provide
States flexibility to develop a model appropriate for their State
context, so long as it is consistent with the other requirements.
Changes: None.
Comments: A few commenters opposed what they described as the
proposed requirement that a State's Academic Progress indicator be
based on a measure of growth on the statewide assessments in reading/
language arts or mathematics. These commenters noted that the statutory
language does not require a growth score based on statewide assessments
for the purposes of calculating the Academic Progress indicator and
that the Department should not limit States to using growth based
solely on test scores.
Discussion: While we appreciate the commenters' concern, the
requirements do not limit States to using growth based solely on
statewide assessment results. Under Sec. 200.14(b)(2), a State may
include either a measure of student growth based on annual reading/
language arts and mathematics assessments or another academic measure
that meets the requirements of Sec. 200.14(c). For example, a State
could measure achievement on reading/
[[Page 86095]]
language arts or mathematics on a different assessment or could measure
achievement in science on the statewide science assessment within the
Academic Progress indicator. Given this existing flexibility, the
Department declines to make any additional changes.
In addition, as noted earlier in these regulations, it is not
necessary for the statute to specifically authorize the Secretary to
issue a particular regulatory provision, given the Secretary's
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the
ESEA, as amended by the ESSA, and that these regulations fall squarely
within the scope of section 1111(c) of the ESEA, as amended by the
ESSA, consistent with section 1111(e) (see discussion of the
Department's general rulemaking authority under the heading Cross-
Cutting Issues).
Changes: None.
Comments: One commenter encouraged the Department to require a
State electing to include student growth in its Academic Progress
indicator to use a valid and reliable growth model that adequately
measures student growth for students with the most significant
cognitive disabilities taking the alternate assessment. The commenter
also asked the Department to clarify that States may not use an
alternative growth measure, such as growth based on meeting IEP goals,
for such students. Another commenter noted more generally that we
should recognize individual growth for students with disabilities.
Discussion: We appreciate the commenters' interest in ensuring that
students with the most significant cognitive disabilities taking an
alternate assessment aligned with alternate academic achievement
standards are appropriately included in any measure within the Academic
Progress indicator. Section 200.14(a) requires that all indicators
measure performance for all students and subgroups, including students
with disabilities, and Sec. 200.14(c) requires that any measure used
by a State within the Academic Progress indicator be valid, reliable,
and comparable, and calculated in the same way for all schools across
the State. Together, these provisions require that States choose a
measure that includes all students, including those who take an
alternate assessment based on alternate academic achievement standards.
Therefore, a State could not use statewide assessment results for some
students and growth based on meeting IEP goals for other students.
Given these existing parameters, we decline to add additional
requirements.
Changes: None.
Comments: One commenter recommended that the Department use more
general language when discussing the proposed Academic Progress
indicator. The commenter suggested referring to this indicator as
``Another Indicator'' or ``Growth or Other Academic Indicator,'' which
the commenter believed aligned more closely with the statutory
description of this indicator.
Discussion: The Department believes the term ``Academic Progress''
is aligned with the description of the indicator under section
1111(c)(4)(B)(ii), which requires that such an indicator measure
academic performance of students in elementary and middle schools and
allow for meaningful differentiation. Use of the term ``Academic
Progress'' is also necessary to reasonably ensure a clear distinction
between the Academic Achievement indicator required by section
1111(c)(4)(B)(i) and the indicator required by section
1111(c)(4)(B)(ii). It thus falls squarely within the scope of title I,
part A of the ESEA, as amended by the ESSA, consistent with section
1111(e), and the Department's rulemaking authority under GEPA, the
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (see
discussion under the heading Cross-Cutting Issues).
Changes: None.
Graduation Rate Indicator
Comments: One commenter requested the Department clarify that the
Graduation Rate indicator may include only four-year and extended-year
adjusted cohort graduation rates and not other measures related to
graduation, including dropout rates or completer rates. Another
commenter recommended allowing alternative measures or indicators, such
as a high school completion indicator, in order to recognize schools
that help students complete alternate pathways in more than four years.
Discussion: Consistent with section 1111(c)(4)(B)(iii) of the ESEA,
as amended by the ESSA, the Graduation Rate indicator may only include
the four-year adjusted cohort graduation rate, and, at the State's
discretion, any extended year adjusted cohort graduation rates the
State uses, consistent with the requirements in Sec. 200.34.
Consequently, the regulations do not permit a State to include other
measures related to high school completion, including dropout or
completer rates or alternate diplomas based on high school equivalency,
in this indicator, and we believe this is accurately reflected in Sec.
200.14(c)(3). We note that States would have discretion to include
other measures of high school completion in a School Quality or Student
Success indicator, if such measures met all applicable requirements in
Sec. 200.14.
Changes: None.
Progress in Achieving English Language Proficiency Indicator
Comments: A few commenters expressed support for the provisions
pertaining to the Progress in Achieving English Language Proficiency
indicator in proposed Sec. 200.14(b)(4), including the requirement
that the indicator take into account a student's initial ELP level and,
at a State's discretion, the allowable student-level characteristics
described in Sec. 200.13(c), consistent with the State's uniform
procedure for establishing long-term goals and measurements of interim
progress for ELP.
Discussion: We appreciate the commenters' support and are
renumbering and revising Sec. 200.14(b)(4)(ii) to better align with
the final requirements in Sec. 200.13 related to the State-determined
timelines, including the State-determined maximum number of years, for
each English learner to attain ELP after their initial identification
as an English learner, which includes consideration of a student's
initial level of ELP and may include additional student-level factors
as described in Sec. 200.13.
Changes: We have revised Sec. 200.14(b)(4) to better align with
the final requirements in Sec. 200.13(c) for considering student--
level characteristics of English learners and determining applicable
timelines, within a State-determined maximum number of years, for each
English learner to attain ELP as the basis for setting long-term goals
and measurements of interim progress in setting.
Comments: Several commenters suggested that multiple measures,
specifically those not based on performance on the State's annual ELP
assessment, be used to calculate the Progress in Achieving English
Language Proficiency indicator in order to better align with the
criteria that many States use to exit students from English learner
status.
Discussion: The ESEA, as amended by the ESSA, states that the
Progress in Achieving English Language Proficiency indicator must be
measured by the assessments described in section 1111(b)(2)(G) (the
annual ELP assessment) for all English learners in grades 3-8 and once
in high school, with progress measured against the ELP assessment
results from the previous
[[Page 86096]]
grade. The Department does not have discretion to permit additional
measures beyond the State's ELP assessment to be used to calculate this
indicator. However, we are clarifying the final regulations to specify
that a State may, at its discretion, measure the progress of English
learners in additional grades toward achieving English language
proficiency on the State's ELP assessment in the indicator,
particularly given the large and growing number of English Learners
enrolled in the early grades.
Changes: We have revised Sec. 200.14(b)(4) to clarify that the
Progress in Achieving English Language Proficiency indicator must
measure English learner performance on the State's annual ELP
assessment required in ``at least'' each of grades 3 through 8 and in
grades for which English learners are assessed under section
1111(b)(2)(B)(v)(I)(bb) of the ESEA, as amended by the ESSA.
Comments: Several commenters supported the requirement that, for
calculating the Progress in Achieving English Language Proficiency
indicator, a State must use an objective and valid measure of progress
on the State's ELP assessment. However, other commenters opposed this
requirement, arguing that States should have greater flexibility when
determining the best measure to determine an English learner's
progress.
Discussion: The Department agrees that States should have
flexibility to determine which measure of progress on the ELP
assessment to use for calculating performance on the Progress in
Achieving English Language Proficiency indicator. However, we believe
that the requirement that any measure a State selects be objective and
valid is critical to ensuring that a State's accountability system
fairly and meaningfully includes the progress of English learners. We
maintain that the final regulations provide sufficient flexibility to
States in developing this indicator, while upholding critical
parameters that will help States effectively support English learners.
We therefore agree with commenters that valid and objective measures
must be used in the Progress in Achieving English Language Proficiency
indicator and decline to make changes.
Changes: None.
Comments: One commenter attested that proposed Sec. 200.14(b)(4)
conflicts with proposed Sec. 200.13(c), because the former allows a
State to include attainment of proficiency within the Progress in
Achieving English Language Proficiency indicator, while the latter
requires that a State's long-term goals and measurements of interim
progress expect that all English learners attain proficiency within a
State-determined period of time. Another commenter recommended that all
references to attainment of ELP be struck in the final regulations.
Discussion: The Department is revising Sec. 200.13(c) to clarify
how the attainment of English language proficiency factors into a
State's long-term goals and measurements of interim progress, as
described in response to comments on Sec. 200.13(c). Accordingly, we
are revising Sec. 200.14(b)(4) to better align with those
requirements, such as by clarifying in Sec. 200.14(b)(4)(ii) that the
measures in this indicator must be aligned to the applicable timelines
for each English learner to attain proficiency after their initial
identification as an English learner, within a State-determined maximum
number of years. Further, we note that the provision in Sec.
200.14(b)(4)(iii) is permissive in that States may, but are not
required to, include a measure of proficiency in setting the indicator.
We also disagree that the proposed requirements inappropriately provide
discretion for States to measure attainment of ELP and believe that a
measure of attaining ELP, if a State chooses to include one, can be
complementary to the information on progress that is required in the
indicator, providing schools additional information about how they are
supporting the diverse range of English learners found in their
communities. Therefore we are maintaining this discretion for States in
Sec. 200.14(b)(4)(iii).
Changes: We have revised Sec. 200.14(b)(4)(ii) to better align
with Sec. 200.13 and clarify that the measures in this indicator must
be consistent with the applicable timelines for each English learner to
attain proficiency after the student's initial identification as an
English learner, within the State-determined maximum number of years.
Comments: A few commenters suggested that the Department require
that States aggregate the results of English learners on the ELP
assessment at the school level (i.e., not at each grade level) for the
purposes of meeting the State's minimum n-size and calculating
performance on the Progress in Achieving English Language Proficiency
indicator.
Discussion: The Department agrees with the commenters' goal to
ensure that the assessment results of as many English learners as
possible are included when calculating performance on the Progress in
Achieving English Language Proficiency indicator. However, we do not
believe that the statute allows the Department to require States to
apply their minimum n-sizes at the school level. We note that States
may average data across grades and school years under Sec. 200.20(a),
summing the number of students with available data in order to meet the
State's minimum n-size and ensure appropriate school-level
accountability for student subgroups, and we encourage States to
consider this practice as a way to maximally include English learners
(as described further in response to comments we received on Sec. Sec.
200.17 and 200.20).
Changes: None.
Comments: One commenter did not support the reference to student
growth percentiles in proposed Sec. 200.14(b)(4)(ii) as an example of
a potential measure for the Progress in Achieving English Language
Proficiency indicator that would be valid and objective. The commenter
attested that student growth percentiles may be an inappropriate
measure for older, recently arrived English learners.
Discussion: We continue to believe that student growth percentiles
are an appropriate example of a measure for the Progress in Achieving
English Language Proficiency indicator and note that States have final
discretion over the measure or measures selected for use in this
indicator, so long as they meet all applicable statutory and regulatory
requirements. However, we are revising Sec. 200.14(b)(4)(i) to further
clarify our intent that other methods of measuring progress are also
permitted, so long as they assess progress toward achieving ELP for an
English learner from the prior year to the current year.
Changes: We have revised Sec. 200.14(b)(4)(i) to indicate that the
objective and valid measures of progress for English learners toward
ELP are based on students' current year performance on the ELP
assessment as compared to the prior year.
Comments: One commenter stated that requiring the measurement of
the Progress in Achieving English Language Proficiency indicator on an
annual basis is inconsistent with the statute.
Discussion: Annually measuring performance on the Progress in
Achieving English Language Proficiency indicator is fully consistent
with section 1111(c)(4)(B) of the Act, which requires all indicators to
be annually measured for all students and subgroups of students. The
exception included in the statute, which may have misled the commenter,
is not an exception to the requirement for annual measurement; rather,
it is an exception to the requirement for disaggregation. The indicator
for Progress in Achieving
[[Page 86097]]
English Language Proficiency is based only on the English learner
subgroup and is not required to be further disaggregated by the other
categories of students described in Sec. 200.16(a)(2). We have revised
Sec. 200.14(a)(1) to clarify this statutory exception to the
requirement for disaggregation of indicators.
Changes: We have revised Sec. 200.14(a)(1) and (c)(3) to specify
that all indicators must be disaggregated for each subgroup, with the
exception of the Progress in Achieving English Language Proficiency
indicator.
Comments: One commenter recommended that the Department require
that States use a measure in the Progress on Achieving English Language
Proficiency indicator based on reducing the number of students who are
long-term English learners in middle school and high school.
Discussion: We appreciate the commenter's suggestion, but note that
requiring additional measures within this indicator for English
learners, particularly those that are not inclusive of all English
learners and only include the progress of a subset of English learners,
would be inconsistent with section 1111(c)(4)(B)(iv) of the ESEA, as
amended by the ESSA.
Changes: None.
School Quality or Student Success Indicator
Comments: Several commenters supported the inclusion of
requirements for School Quality or Student Success indicators in the
proposed regulations, generally expressing appreciation for a more
holistic approach to accountability under the ESSA that looks at
indicators beyond test scores and graduation rates. A number of
commenters continued to be concerned that accountability systems at the
State level were focused solely on assessment results and graduation
rates, and one commenter was concerned that States were only required
to include one measure beyond standardized tests.
Some commenters generally recommended that States be given broad
flexibility in developing and implementing indicators of School Quality
or Student Success within their new statewide accountability systems.
Discussion: We agree with commenters that the inclusion of the
School Quality or Student Success indicator(s) in the statewide
accountability systems required by the ESEA, as amended by the ESSA,
presents an opportunity for States to develop robust, multi-measure
accountability systems that help districts and schools ensure each
student has access to a well-rounded education and that take into
account factors other than test scores and graduation rates in
differentiating school performance. Given that States must include
indicators beyond academic achievement and graduation rates, we
disagree with commenters who asserted that accountability systems are
solely focused on these factors. We recognize that the statute requires
only one School Quality or Student Success indicator, but anticipate
that most States will take advantage of statutory flexibility to
develop or adopt multiple indicators, particularly in view of the
examples included in the statute itself.
Changes: None.
Comments: Some commenters suggested that the Department add a
requirement that States hold schools accountable for providing students
with access to programs that address particular needs of students,
including access to arts, music, and world language programs, in order
to support development of the whole child.
Discussion: We share the commenters' interest in ensuring that all
students receive a well-rounded education that will prepare them for
success beyond the classroom. However, the Department is statutorily
prohibited from mandating curricula either directly or indirectly, as
such decisions are a State and local responsibility.
Changes: None.
Comments: One commenter opposed the use of ``Standard Core''
measures within the School Quality or Student Success indicator because
such measures lacked empirical evidence.
Discussion: While we appreciate the commenter's concern about the
use of measures that lack evidence, we are not clear which measures the
commenter is referencing; therefore, we cannot respond to the comment.
Changes: None.
Comments: One commenter raised specific questions about whether, if
a State used a survey to collect data on its School Quality or Student
Success indicator, the State must survey all students or whether the
data must be reflective of all students, or only those that are full
academic year students. Additionally, the commenter sought clarity
about whether a State could choose to measure only some grades within a
range, so long as all schools in the State had one or more of the
grades to be measured. For example, the commenter wanted to know if a
State could measure a School Quality or Student Success indicator for
grades kindergarten, 3, and 5, instead of each grade in a kindergarten-
5 school.
Discussion: We appreciate the commenter's request for clarity about
implementation of the specific indicators and measures within the
statewide accountability system, but believe that non-regulatory
guidance is a more appropriate way to address such questions.
Generally, the ESEA, as amended by the ESSA, and Sec. 200.14 of the
regulations recognize that some indicators will not include all grades
in a school. For example, the Graduation Rate indicator only includes
the results of students that are part of the cohort of students
graduating in a given year, and the Academic Achievement indicator only
includes the results of students taking assessments in specific grades
(i.e., grades 3-8 and one grade in high school). Therefore, it does not
seem unreasonable that an indicator of School Quality or Student
Success would only include the results of a specific grade. For
example, a State may choose to use as an indicator, for middle schools,
the percentage of eighth grade students that have already received
credit for a course such as Algebra I. To the specific question about
whether States must include only those students who are full academic
year students in measuring the School Quality or Student Success
indicator, section 1111(c)(4)(F) of the ESEA, as amended by the ESSA,
allows a State to exclude the performance of students who do not attend
the same school within an LEA for at least half of a school year on the
Academic Achievement, Academic Progress, Progress in Achieving English
Language Proficiency, and the School Quality or Student Success
indicators for accountability purposes. However, all students should be
included for the purposes of reporting performance on State and LEA
report cards under Sec. Sec. 200.30 and 200.31.
Changes: None.
Comments: Some commenters suggested the Department require States
to undertake stakeholder consultation specific to the development of
meaningful indicators of School Quality or Student Success. For
example, one commenter recommended the Department require States to
convene summer and other out-of-school partners for input, because
these stakeholders have expertise in supporting and measuring students'
social-emotional development. Other commenters recommended that States
be required to consult with the diverse community of professionals that
contribute to student success, including instructional support staff.
Discussion: We agree with commenters that States should engage in
robust and meaningful consultation with diverse stakeholders related to
the development or adoption of the State's
[[Page 86098]]
indicators of School Quality or Student Success. In fact, the Secretary
issued a Dear Colleague Letter to States on June 22, 2016, to emphasize
the importance of early and meaningful stakeholder engagement.\5\
States should be working now with a broad array of stakeholders on
formulating new statewide accountability and support systems.
Additionally, under Sec. Sec. 299.13 and 299.15, States are required
to consult with many stakeholders, including teachers, principals,
other school leaders, paraprofessionals, specialized instructional
support personnel, and organizations representing such individuals, as
well as community-based organizations, in the development of the State
plan. One component of that plan is a description and information about
which indicators the State plans to use in its statewide accountability
system, including School Quality or Student Success indicators. The
Department encourages States to engage stakeholders meaningfully in the
development of State plans, including School Quality or Student Success
indicators, and believes that existing consultation and State plan
requirements provide sufficient opportunity for input on State
selection of these indicators; therefore, we decline to add further
requirements specific to this category of indicators to the final
regulations.
---------------------------------------------------------------------------
\5\ See: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
---------------------------------------------------------------------------
Changes: None.
Comments: A number of commenters suggested the Department require
States to hold schools accountable for a wide range of specific
indicators of School Quality or Student Success. For example,
commenters suggested that States be required to hold schools
accountable for the presence of wrap-around services, access to
preschool, and career and technical programs.
Other commenters suggested the Department provide additional
examples of measures and indicators of School Quality or Student
Success within the regulatory requirements but not require States to
use specific indicators. For example, these commenters suggested that
the Department highlight health-based measures, specific measures of
school climate and school discipline, and measures of participation in
advanced or gifted programs.
Other commenters expressed interest in examples, which could be
made available either in regulation or non-regulatory guidance, of
valid and reliable indicators that could measure School Quality or
Student Success and support equity and excellence, as well as tools
that may be used to measure performance on these indicators (e.g.,
existing student survey tools).
Discussion: We appreciate the strong interest of commenters in
requiring or highlighting a wide range of measures that States could
include in their indicators of School Quality or Student Success, as
well as the recognition that States likely will need assistance in
selecting high-quality indicators. However, we believe that requiring
the inclusion of specific measures would be inconsistent with the
statute, and we believe that non-regulatory guidance is a more
appropriate vehicle for offering additional examples and tools to help
States select valid, reliable, and comparable indicators of School
Quality or Student Success. Therefore, we decline to include additional
examples of indicators of School Quality or Student Success, beyond the
list in Sec. 200.14(b)(5), which includes only those examples provided
in section 1111(c)(4)(B)(v) of the ESEA, as amended by the ESSA. We
plan to issue non-regulatory guidance that will provide additional
examples of indicators of School Quality or Student Success that States
may choose to include in statewide accountability systems.
Changes: None.
Comments: Several commenters provided feedback or recommendations
related to the examples of School Quality or Student Success indicators
the Department listed in the preamble of the NPRM, with some expressing
concern that the examples could preclude or discourage the use of other
indicators and other commenters highlighting specific concerns or
drawbacks with the examples and suggesting alternatives.
Discussion: While we appreciate the feedback provided by commenters
on such examples and will consider this feedback in any future guidance
on the selection and implementation of indicators of School Quality or
Student Success, the examples were provided in the preamble of the NPRM
and not in the regulatory requirements. Therefore, the Department
declines to make any regulatory changes based on this feedback.
Changes: None.
Comments: Several commenters requested that the Department require
States to define and measure school climate within specific parameters
if the State chooses to use school climate as an indicator of School
Quality or Student Success. For example, some commenters encouraged the
Department to define positive school climate and safety and offer
multiple ways of measuring data, including student surveys and through
the use of school discipline data.
Discussion: We appreciate the commenters' efforts to encourage the
selection and use of meaningful, high-quality, and readily available
measures of school climate in States that use such measures in one or
more indicators of School Quality or Student Success. We believe that
decisions about which measures to include are best made at the State
level and encourage States to meaningfully engage stakeholders in
considering them.
Changes: None.
Comments: A few commenters wanted to ensure that, in establishing
and collecting data on indicators of School Quality or Student Success,
States do not collect data regarding student social emotional factors,
beliefs and behaviors, or other information beyond the scope of the
school's purview, or use such information for accountability purposes.
Another commenter suggested the Department clarify that indicators
should not require any additional assessments beyond what is already
required by law in reading and math.
Discussion: We appreciate the commenters' concern that a State may
establish and develop an indicator of School Quality or Student Success
that will require the State to collect additional data, consistent with
the statutory requirement to measure and report on this indicator.
States must still meet the requirements for protecting personally
identifiable information described in the statute and under Sec.
200.17. Because States are best positioned to determine whether an
additional assessment or tool is needed to determine a student's
performance on its particular School Quality or Student Success
indicator(s), we decline to limit State discretion in this area.
Changes: None.
Comments: Many commenters provided feedback on the proposed
requirement in Sec. 200.14(d) that any measure used within a State's
indicators of Academic Progress and School Quality or Student Success
be supported by research that performance or progress on such a measure
is likely to increase student achievement, or at the high school level,
graduation rates. Some suggested eliminating the requirement that the
School Quality or Student Success indicator be supported by such
research, because it would prevent States from using measures of school
climate or safety, parent engagement, or other measures that they
believe may not be directly linked to
[[Page 86099]]
academic achievement. These commenters also were concerned that the
requirement restricts State flexibility to choose appropriate
indicators, results in a continued emphasis on test-based
accountability, is contrary to the ESSA's inclusion of multiple
indicators beyond assessment results, and goes beyond the authority
granted to the Secretary. Another commenter noted that the statute did
not include an evidence requirement for these indicators as it did
other parts of the statewide accountability system. A few commenters
also asserted that the proposed requirement violated sections
1111(e)(1)(B)(iii)(IV) and (V) of the ESEA, as amended by the ESSA.
Other commenters supported the proposed requirement because it
ensures that measures within each indicator are likely to close
educational achievement gaps, consistent with the purpose of title I of
the ESEA. Of those commenters that supported the requirement, one
recommended adding that the indicators should not only be linked to
student achievement, but would also be appropriate for accountability
purposes. Some commenters supported the requirement but recommended
modifying the regulations to allow States to demonstrate that proposed
measures used in indicators of School Quality or Student Success are
supported by research that performance or progress on such measures is
likely to increase at least one of a variety of outcomes beyond student
achievement and graduation rates, including student educational
outcomes, college completion, postsecondary or career success,
employment or workforce outcomes, civic engagement, military readiness,
student access to and participation in well-rounded education subject
areas, or student learning and development. Finally, one commenter
suggested that States be required to demonstrate that the indicator
they select to use in middle school is linked to student achievement or
graduation rates because waiting until high school to focus on
indicators that are linked to graduation is too late.
Discussion: The requirement that measures used for indicators of
Academic Progress and School Quality or Student Success be supported by
research demonstrating a link to increased student achievement was not
intended to limit such measures to those that improve State assessment
results. Rather, our intention was to include a wide variety of
measures of student learning such as grade point average, course
completion and performance, or credit accumulation. We maintain that a
requirement linking indicators of School Quality or Student Success to
student outcomes is critical to fulfill the goal of title I to close
educational achievement gaps and to reasonably ensure compliance with
the more specific requirements in section 1111(c)(4) that the State's
accountability system should improve ``student academic achievement.''
Accordingly, this requirement falls squarely within the scope of title
I, part A of the ESEA, as amended by the ESSA, consistent with section
1111(e) and is consistent with the Department's rulemaking authority
under GEPA, the DEOA, and section 1601(a) of the ESEA, as amended by
the ESSA.
Further, these requirements do not contravene the provisions in
sections 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the
ESSA, because they do not prescribe either the weight of any measure or
indicator or the specific methodology that States must use to
meaningfully differentiate and identify schools.
However, we recognize that many measures may be supported by
research demonstrating a positive impact on a broader array of student
outcomes that are related to college and career readiness and are
revising Sec. 200.14(d) accordingly.
Changes: We have revised Sec. 200.14(d) to provide States with
additional flexibility to demonstrate that the Academic Progress and
School Quality or Student Success indicators are supported by research
that performance or improvement on such measures is likely to increase
student learning, like grade point average, credit accumulation, or
performance in advanced coursework, or, for measures within the
indicators at the high school level, graduation rates, postsecondary
enrollment, postsecondary persistence or completion, or career
readiness.
Comments: None.
Discussion: In revising the requirement under Sec. 200.14(d),
consistent with the discussion directly above, we determined that an
additional change would clarify the requirement in order to ensure
States can comply with the requirements in 1111(c) of the ESEA, as
amended by the ESSA, and Sec. 200.14. In order to more closely align
with the purpose of the accountability system and to meaningfully
ensure that measure used within the Academic Progress and School
Quality or Student Success indicators are likely to increase student
learning, consistent with the previous discussion, we are clarifying
that a State must demonstrate that each of these indicators is
supported by research that high performance or improvement on such
measures is likely to increase student learning, or for measures within
indicators at the high school level, graduation rates, postsecondary
enrollment, postsecondary persistence or completion, or career
readiness.
Changes: We have revised Sec. 200.19(d) to clarify that each
indicator of Academic Progress and School Quality or Student Success
must be supported by research that ``high'' performance or improvement
on such measures is likely to increase student learning.
Other Indicator Requirements
Comments: A few commenters recommended that the Department include
additional requirements in the final regulations related to the
selection and use of accountability indicators, including requirements
related to ensuring that measures are valid and reliable for the
purposes for which they are being used and are developmentally
appropriate. Another commenter encouraged the Department to avoid
further defining comparability due to pending innovations in how
comparability might be demonstrated.
One commenter offered specific guidance for the Department and
States to consider in identifying or selecting research-based, non-
academic, or non-cognitive School Quality or Student Success
indicators.
Discussion: We appreciate the commenters' request for further
clarification around the requirements for accountability indicators. We
believe it will be important to carefully consider the validity,
reliability, and comparability of each State's indicators within the
broader context of its statewide accountability system through our
State plan review process and corresponding peer review, but we decline
to add new regulatory requirements in this area. We will consider this
input in the context of non-regulatory guidance.
Changes: None.
Comments: Some commenters opposed the requirement in proposed Sec.
200.14(c)(2) that States measure each indicator in the same way across
all schools, except that the indicators of Academic Progress and School
Quality or Student Success may vary by grade span. One commenter was
concerned that this requirement dilutes local flexibility to select
measures that may be more appropriate given a school's local context.
Other commenters particularly appreciated the flexibility to vary
certain indicators by grade span, because they believed this would
allow States to use a broader array of
[[Page 86100]]
indicators rather than only indicators that were relevant to all
grades.
Discussion: While we appreciate the concern that this does not
provide States with an opportunity to vary indicator measurement across
schools broadly, we believe that in order to ensure indicators are
comparable and that accountability determinations are fair and
equitable across schools and districts, the measures within those
indicators must be measured in the same way. The regulations provide
States with flexibility beyond that in the statute--to vary the
Academic Progress indicator across grade spans--but the Department
declines to allow States to measure performance on indicators
differently across schools or districts, or to permit States to adopt a
menu of measures from which districts can choose to use within an
indicator.
Changes: None.
Comments: Several commenters strongly supported the requirement in
proposed Sec. 200.14(c)(3) that States disaggregate performance on
each indicator by student subgroup, citing the need for such
disaggregation for transparency in reporting, identification of schools
with consistently underperforming subgroups for targeted support and
improvement, and alignment with the statutory requirements for
indicators. One commenter suggested clarifying that each indicator
should be disaggregated by individual student subgroup and reflect
actual student experience. That commenter was concerned that, as
drafted, the regulations would permit a school to say, for example,
that all members of a particular subgroup had access to AP courses,
even if no members of that group were actually enrolled in AP courses.
A number of commenters opposed the requirement and recommended the
Department remove or modify this provision. In particular, many
commenters were concerned that the requirement to disaggregate each
indicator of Student Quality or Student Success would preclude a State
from using indicators that cannot be disaggregated, such as teacher
mentoring programs, educator engagement or school climate measures
collected through an anonymized survey, and student access to resources
such as dual enrollment programs, specific course sequences, or school
counselors. Commenters were concerned about the latter because it would
not adequately reflect differences among subgroups in actual
participation in or use of such resources. Some commenters were
concerned with the validity and reliability of these indicators at the
subgroup level. One commenter suggested that a State should be required
to disaggregate one indicator of School Quality or Student Success, but
not each such indicator. Another commenter asked for clarification
about whether the proposed regulations would require a State using a
survey to collect demographic information for each participant.
Discussion: We appreciated hearing from commenters who supported
the requirement to disaggregate results on each indicator, and we agree
that this requirement is vitally important to ensuring equity and
meeting other statutory requirements related to indicators. For too
long, the performance of individual subgroups was hidden within State
accountability and reporting systems, and the ESSA has maintained a
focus on illuminating the performance of each subgroup by requiring in
section 1111(c)(4)(B) that States measure each indicator for all
students and separately for each subgroup of students. Additionally, in
order to identify schools with consistently underperforming subgroups
of students for targeted support and improvement, the State must
consider the performance of individual subgroups based on each
indicator. We understand that this requirement to disaggregate results
on each indicator may limit to some degree a State's selection of
indicators for its statewide accountability system, but the reasons for
such disaggregation are compelling, and the ESSA requires this
disaggregation. Therefore, we decline to make any changes. The only
exception to this requirement, as discussed previously, is that the
Progress in Achieving English Language Proficiency indicator need not
be disaggregated by student subgroup because it is measured for only
one subgroup: The English learner subgroup.
Changes: None.
Comments: While some commenters supported the proposed requirement
in Sec. 200.14(c)(4) that a State cannot use a measure more than once
in its statewide accountability system, many commenters opposed this
requirement. One commenter noted that a State may want to use the same
measure but in a different way in another indicator. For example, a
State might include proficiency, as measured by the ACT, in the
Academic Achievement indicator, but a measure of the number of students
who meet the ACT college and career readiness benchmark in three or
more content areas as a measure of postsecondary readiness within the
School Quality or Student Success indicator. Other commenters noted
that States may have other reasons to use a particular measure or
instrument in more than one indicator. For example, States may want to
use a nationally recognized assessment to measure postsecondary
readiness within the State's School Quality or Student Success
indicator, but also allow LEAs to use the same assessment in lieu of a
State-required high school assessment for the Academic Achievement
indicator, consistent with the flexibility under the ESEA, as amended
by the ESSA.
Discussion: We appreciate the commenters' concern that proposed
Sec. 200.14(c)(4) could be interpreted to prevent a State from using
an applicable measure across multiple indicators. In the scenario
described by the commenters, the State would not be using the same
measure, but rather the same instrument, within two different
indicators. The Department's intention was not to preclude a State from
using different measures derived from the same instrument for more than
one indicator in its statewide accountability system, as described in
the ACT example cited previously. Therefore, we agree that this
requirement could have the unintentional effect of limiting a State's
opportunity to use measures derived from the same data source across
two indicators, and we are removing the requirement.
Changes: We have removed the requirement in proposed Sec.
200.14(c)(4).
Comments: Several commenters supported the requirement in proposed
Sec. 200.14(e) that State-selected indicators of Academic Progress or
School Quality or Student Success produce varied results across schools
in order to meet the statutory requirement for meaningful
differentiation and to ensure that indicators provide meaningful
insight into a school's performance. A few commenters were opposed to
the requirement because they are concerned it would unduly limit State
flexibility in selecting indicators. One commenter was concerned by the
Department's language in the preamble of the NPRM that indicated
average daily attendance was unlikely to show variation across schools;
the commenter believes attendance is important and just because schools
are all doing well on an indicator should not indicate that it would be
unhelpful as a component of a statewide accountability system.
Discussion: We appreciate the support for the requirement that
indicators of Academic Progress and School Quality or Student Success
must produce varied results across schools. Under section
1111(c)(4)(B)(ii)(II) and 1111(c)(4)(B)(v)(I)(aa) of the ESEA,
[[Page 86101]]
respectively, States must ensure that Academic Progress and School
Quality or Student Success indicators allow for meaningful
differentiation in school performance. While the Department does not
define the term meaningful differentiation, or how much variation an
indicator must show, we believe that indicators in the State's system,
consistent with the requirements of the law, must show varied results
across schools in order to enable States to actually differentiate
school performance. Given concerns that this requirement will overly
limit State flexibility, which we believe may partly stem from a
misinterpretation of the proposed language, we are revising Sec.
200.14(e) to clarify that a State must demonstrate the measures in its
Academic Progress and School Quality or Student Success indicators show
variation across ``schools'' in the State, as the proposed language of
``all schools'' could be misinterpreted to require a different result
on the selected measure for each school in the State, which was not the
intent of this provision. Finally, while we think it unlikely, as
suggested in the preamble of the NPRM, that average daily attendance
would yield the varied results needed to meet this requirement, the
regulations do not prohibit such a measure if a State can demonstrate
otherwise.
Changes: We have revised Sec. 200.14(e) to refer to variation in
results across schools generally, rather than ``all schools.''
Section 200.15 Participation in Assessments and Annual Measurement of
Achievement
Comments: Many commenters expressed support for the proposed
regulations clarifying the actions that a State may take to ensure that
all schools adhere to the 95 percent participation rate requirement on
State assessments, including the 95 percent participation rate
requirement for student subgroups, with one noting that this
requirement was retained from NCLB. These commenters also stated that
the proposed regulations are consistent with the spirit of the ESEA, as
amended by the ESSA, by allowing States to determine the specific
actions for schools that do not meet the 95 percent participation rate
requirement while also providing flexibility for States to develop
their own approaches to improving participation rates. Other commenters
praised the proposed regulations for reinforcing the inclusion of all
students in the State's assessment system through the 95 percent
participation rate requirement. One commenter stated that the proposed
regulations are critical to ensuring that States, districts, and
schools take seriously the need to assess at least 95 percent of
students and avoid loopholes that could undermine accountability
systems. Several commenters also expressed strong support for the
proposed improvement plans for schools that do not meet the 95 percent
participation rate requirement, including the involvement of
stakeholders such as parents and educators in developing these plans.
Discussion: We appreciate the support of these commenters for the
proposed regulations on the 95 percent participation rate requirement.
In reviewing the comments and proposed regulations, we have determined
that the regulations could more clearly reflect the statutory
requirement that each State administer academic assessments to all
public school students in the State, and we are revising Sec.
200.15(a) to better distinguish this assessment requirement from the
separate accountability requirement under section 1111(c)(4)(E) of the
ESEA, as amended by the ESSA. The proposed regulations focused on this
requirement to annually measure, for accountability purposes, the
achievement of at least 95 percent of all students and 95 percent of
all students in each subgroup on reading/language arts and mathematics
assessments, but did not explicitly address the requirement under
section 1111(b)(2)(B)(i)(II) of the ESEA that the required assessments
in reading/language arts, mathematics, and science be administered to
all public school students in the State, or the requirement under
section 1111(b)(2)(B)(vi)(I) of the ESEA that the State must provide
for the participation of all students in such assessments. If we do not
explicitly reference these requirements in the regulations, States and
other stakeholders might misinterpret the regulations to mean that only
95 percent of students must be assessed on the required academic
assessments, contradicting the requirements in section 1111(b)(2)(B) of
the ESEA.
Changes: We have revised Sec. 200.15(a)(1) to clarify that States
are required to administer academic assessments in reading/language
arts, mathematics, and science to all public school students in the
State, and provide for all such students' participation in those
assessments.
Comments: One commenter cited numerous benefits of ensuring high
participation rates consistent with the statute and the proposed
regulations, emphasizing that high-quality assessments provide
essential information that can be used to inform instruction, support
student learning, ensure readiness for postsecondary education, guide
professional development, and target evidence-based interventions to
meet the needs of students and schools. The commenter also noted that
non-participation inhibits the data transparency needed to support
effective monitoring and program improvement, which can have a
disparate impact on students with special needs and contribute to a
widening of achievement gaps. This commenter also recommended that
States provide information to parents, educators, and the public
regarding the consequences of non-participation in assessments under
their accountability systems and include parents and other stakeholders
in developing interventions and supports for schools that do not meet
the 95 percent participation rate requirement.
Discussion: We appreciate and share this commenter's views on the
importance of the 95 participation rate requirement. We note that the
requirements for participation rate improvement plans in Sec.
200.15(c)(1) of the final regulations include involvement by
stakeholders--including principals and other school leaders, teachers,
and parents--in the development of improvement plans.
Changes: None.
Comments: One commenter expressed strong support for proposed Sec.
200.15, noting that accountability systems can be effective only when
they include information on each student's performance on assessments
aligned to rigorous State standards in reading/language arts and
mathematics, and that there is no way to determine whether all students
are meeting the long-term goals and measurements of interim progress
for academic achievement required by section 1111(c)(4)(A) of the ESEA,
as amended by the ESSA, without achievement data on State tests.
Discussion: We appreciate the commenter's support for the proposed
regulations.
Changes: None.
Comments: Many commenters asserted that the proposed regulations on
the 95 percent participation rate requirement are part of an effort to
restore what they described as test-based accountability in the ESEA,
as amended by the ESSA. These commenters objected to the menu of
proposed actions that would be required for schools that do not meet
the 95 percent participation rate requirement, describing the 95
percent requirement as an arbitrary threshold that effectively would
punish schools and in turn
[[Page 86102]]
parents for their decisions to opt out of State assessments required by
the ESEA, as amended by the ESSA.
Discussion: While the ESEA, as amended by the ESSA, promotes
statewide accountability systems based on multiple measures of student
and school performance, the accurate and reliable measurement of
student achievement on annual State assessments in reading/language
arts and mathematics remains a required component of those systems.
Specifically, as part of their statewide accountability systems
required by the ESEA, as amended by the ESSA, States must set long-term
goals and measurements of interim progress for academic achievement in
reading/language arts and mathematics under section
1111(c)(4)(A)(i)(I)(aa), as measured by the assessments in these
subjects required under section 1111(b)(2). Academic achievement as
measured by proficiency on these assessments also is a required
indicator for State systems of annual meaningful differentiation under
section 1111(c)(4)(B). In support of these requirements, the law
requires annual assessments in reading/language arts and mathematics to
be administered to all public school students in each of grades 3-8,
and at least once between grades 9 and 12, and, separately, that States
hold schools accountable for assessing at least 95 percent of their
students. The 95 percent threshold is specified in section
1111(c)(4)(E) of the ESEA, as amended by the ESSA, and both the
Department and States are responsible for ensuring that all schools
meet the 95 percent participation rate requirement. The final
regulations, like the proposed regulations, are designed to assist
States in fulfilling this responsibility, and ultimately provide States
flexibility in determining how to factor participation rate into their
accountability system.
Changes: None.
Comments: One commenter wrote that proposed Sec. 200.15 undermines
the clear intent of Congress to empower State and local educators to
engage in a collaborative process for developing broader accountability
systems based on multiple measures of performance.
Discussion: The proposed regulations on the 95 percent
participation rate requirement are narrowly and appropriately targeted
on ensuring that all schools meet that requirement, and do not in any
way undermine or interfere with the authority or discretion of States
to develop, or to engage in a collaborative process for developing, the
broader, statewide accountability systems based on multiple measures of
student and school performance that are encouraged by the ESEA, as
amended by the ESSA. Further, the provisions of Sec. 200.15 are wholly
consistent with, and within the scope of, the provisions of title I,
part A of the ESEA, as amended by the ESSA, as well as with the
Department's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA, as amended by the ESSA, (as previously described
in the discussion of Cross-Cutting Issues) because they are consistent
with and necessary to ensure that States fulfill their responsibilities
under section 1111(c)(4)(E) of the ESEA, as amended by the ESSA. As
such, they also do not violate section 1111(e) of the ESEA, as amended
by the ESSA.
Changes: None.
Comments: One commenter stated that the requirements of proposed
Sec. 200.15 do not take into account current efforts by States to
improve assessment participation rates or the unique circumstances that
may negatively affect participation rates.
Discussion: We appreciate that many States, school districts, and
schools already are engaged in efforts to increase assessment
participation rates and that there are many reasons for low
participation rates. However, the law requires States to factor the 95
percent participation rate requirement, for schools and subgroups of
students, into their statewide accountability systems regardless of
such efforts, and the proposed regulations were designed to help States
implement that requirement. States may incorporate current strategies
and incentives for improving participation rates that reflect local
needs and circumstances into the State-determined option for factoring
the 95 percent participation rate requirement into their statewide
accountability systems under Sec. 200.15(b)(2)(iv). We also note that
existing State and local efforts to improve participation rates may
provide a solid foundation for the school- and district-level
improvement plans required by the final regulations.
Changes: None.
Comments: One commenter asserted that the proposed regulations
could result in the diversion of resources from needy schools to
wealthier schools due to the recent high incidence of opt outs at many
wealthier schools. This commenter also stated that lower grades for
typically high-performing schools due to their failure to meet the 95
percent participation rate requirement could erode support for both
State accountability systems and the individuals responsible for
administering those systems.
Discussion: The Department believes it is unlikely that meeting the
95 percent participation rate requirement would divert significant
resources to wealthier schools; the combination of ESEA program
allocation requirements and the fiscal provisions in part A of title I
generally ensure that high-poverty schools continue to receive their
fair share of Federal, State, and local funds. In addition, under Sec.
200.24(a)(1), LEAs may not use section 1003 school improvement funds to
serve schools identified under Sec. 200.15(b)(2)(iii), if applicable,
for targeted support and improvement due to missing the 95 percent
participation rate requirement. This provision is explicitly intended
to prevent the diversion of section 1003 improvement funds from schools
that are identified for comprehensive or targeted support and
improvement due to consistently poor student outcomes. We also note
that the integrity of statewide accountability systems is at greater
risk when schools--regardless of general beliefs about their quality or
performance--do not meet the 95 percent participation requirement than
when they receive lower performance determinations reflecting the lack
of reliable data for accurately measuring performance against State-
determined college- and career-ready academic standards.
Changes: None.
Required Denominator for Calculation of Academic Achievement Indicator
Comments: Several commenters objected to the provisions that
require States to take specific actions for schools that fail to meet
95 percent participation rates, as well as the school and district
improvement plans in proposed Sec. 200.15(c). These commenters stated
that proposed Sec. 200.15(b)(1), which incorporates the statutory
requirement that non-participants be counted as non-proficient for the
purposes of annual meaningful differentiation, is sufficient penalty
for failing to assess at least 95 percent of all students and all
students in each subgroup.
Discussion: Section 1111(c)(4)(E) of the ESEA, as amended by the
ESSA, specifies two distinct consequences for failure to meet the 95
percent participation rate requirement: (1) Counting non-participants
in any school with a participation rate below 95 percent as non-
proficient for purposes of calculating the Academic Achievement
indicator (by ensuring that the denominator for such calculation, at a
minimum, includes at least 95 percent of students enrolled in the
school); and (2) factoring the requirement into
[[Page 86103]]
statewide accountability systems. The Department disagrees with the
commenters that the second statutorily specified consequence should be
ignored. The final regulations, like the proposed regulations, are
designed to support effective implementation of the requirement that
States factor the 95 percent participation requirement into their
accountability systems.
Changes: None.
Comments: Several commenters expressed concern about proposed Sec.
200.15(b)(1), which incorporates statutory requirements related to the
denominator that must be used for calculating the Academic Achievement
indicator, essentially requiring non-proficient scores for most non-
participants for the purpose of annual meaningful differentiation of
schools. In particular, commenters suggested that this requirement
would unfairly reduce school performance ratings for schools in which
parents are exercising their legal rights to opt their children out of
State assessments required by the ESEA, as amended by the ESSA--actions
over which districts and schools have no control. One commenter
asserted that proposed Sec. 200.15(b)(1) exceeded the Department's
legal authority.
Other commenters expressed support for proposed Sec. 200.15(b)(1)
and encouraged the Department to clarify in the final regulations how
it must be implemented, including that students who opt out of State
assessments must be part of the denominator for the Academic
Achievement indicator calculation and that the only students who may be
excluded from the denominator are those who were enrolled in a school
for less than half of the academic year, as provided under proposed
Sec. 200.20(b).
Discussion: The final regulations retain the requirement that the
denominator used for calculating the Academic Achievement indicator
must include, for all students and for each subgroup of students, at
least 95 percent of all such students in the grades assessed who are
enrolled in the school each year. This requirement has the effect of
ensuring that participation rates below 95 percent not only could have
a significant impact on a school's performance on the Academic
Achievement indicator but could also affect the school's overall
determination in a State's accountability system. We further note that
this provision is incorporated directly from the statute, specifically
from the requirement in section 1111(c)(4)(E)(ii) of the ESEA, as
amended by the ESSA. We appreciate that it would be helpful to provide
States with assistance in implementing this requirement and plan on
providing clarification in non-regulatory guidance. Finally, requiring
all students that opt-out of State assessments to be counted as non-
participants would be inconsistent with the statute, which would not
count such students as non-participants until a school's participation
rate falls below 95 percent in a given year.
Changes: None.
State Actions To Factor Participation Rate Into Statewide
Accountability Systems
Comments: Numerous commenters stated that the proposed actions that
States would be required to take in schools that do not test 95 percent
of their students in reading/language arts and mathematics,
specifically lowering the rating of such schools in statewide
accountability systems or identifying them for targeted support and
improvement, are not consistent with other requirements of the Act.
More specifically, these commenters asserted that proposed Sec. 200.15
conflicts with section 1111(b)(2)(K) of the ESEA, as amended by the
ESSA, which states that the assessment requirements in section 1111(b)
do not preempt State or local law regarding the decision of a parent to
not have his or her child participate in the assessments required by
Part A of title I of the ESEA, as amended by the ESSA. Some commenters
further expressed the belief that the proposed regulations appear to be
intended to minimize parental resistance to what they described as the
overuse and misuse of standardized tests, while others emphasized that
districts and schools should not be penalized for the actions of
parents. A few commenters stated that by not taking into account the
opt-out movement, the proposed regulations could undermine the
legitimacy and public acceptance of statewide accountability systems.
These commenters generally recommended that the proposed regulations on
assessment participation be revised to restate statutory requirements,
including the right to ``opt out'' of ESEA assessments, and permit
States to determine how to factor the 95 percent participation
requirement into their accountability systems, or that the Department
not issue any regulations on meeting the 95 percent participation rate
requirement.
Discussion: We recognize that section 1111(b) of the ESEA, as
amended by the ESSA, protects the right of parents to withhold children
from participation in State assessments in reading/language arts and
mathematics. At the same time, the law requires that all students
participate in annual assessments in English language arts and
mathematics in each of grades 3-8, and at least once between grades 9
and 12, and that States hold schools accountable for assessing at least
95 percent of their students. Ensuring that States, LEAs, and schools
have reliable, accurate assessment data on all students and all
subgroups of students is essential to design meaningful accountability
systems, to provide teachers and parents the information they need to
improve instruction and student outcomes, and to guide States and
districts in providing schools the resources, support, and assistance
they need to make sure that all students graduate high school ready for
college and careers.
The proposed regulations provide a menu of options for States to
use to help ensure that all schools meet the statutory 95 percent
participation rate requirement. We believe these options will help
protect the integrity of a State's accountability system; ensure that
participation rate is included in a State's accountability system in a
meaningful, transparent manner; and ensure that parents and teachers
get the information they need to support students. For these reasons,
the final regulations retain a menu of actions from which States may
select for schools that do not test at least 95 percent of their
students in reading/language arts and mathematics.
Changes: None.
Comments: A number of commenters requested that the Department
strengthen the State options for addressing low assessment
participation rates. One commenter provided specific recommendations
for more rigorous actions by States for schools that miss the 95
percent participation rate requirement. For example, this commenter
suggested strengthening improvement plan consultation requirements by
requiring the inclusion of at least one parent from each subgroup that
does not meet the 95 percent participation rate requirement. This
commenter also expressed concern that assigning a lower summative
rating to a school that missed the 95 percent participation rate
requirement might result in a relatively inconsequential reduction,
such as from a ``B+'' to a ``B'' rating, and called for the final
regulations to ensure that a State's actions lead to a meaningful
reduction in the rating of such schools. The same commenter recommended
that States be required to provide technical assistance aimed at
helping schools explain to parents why assessment participation is
important for the integrity of the State's
[[Page 86104]]
accountability system as well as how that system is used to provide
supports for students and schools. Other commenters recommended
clarifying that States may take more rigorous actions in schools that
do not meet the 95 percent participation rate requirement than those
included in the proposed regulations.
Discussion: The Department appreciates support from commenters for
strong actions to ensure that all schools meet 95 percent participation
rates, but does not believe that more prescriptive requirements in this
area would be consistent with the ESEA, as amended by the ESSA. We also
believe that some of the recommended changes are unnecessary; for
example, the requirement that participation rate improvement plans be
developed in partnership with parents is likely to lead to involvement
from parents from subgroups that do not meet the 95 participation
requirement. Improvement plans also are likely to include efforts to
explain to parents why assessment participation is important for the
effective functioning of State accountability systems, including the
delivery of supports for students and schools. Finally, because the
proposed regulations already require States to take ``at least one'' of
the required actions for schools that miss the 95 percent
participation, we believe the regulations are clear that States may
take more rigorous actions, including more rigorous State-determined
actions, and that this point would be more appropriately reiterated
through non-regulatory guidance.
Changes: None.
Comments: Many commenters asserted that the proposed regulations
exceed the Department's authority under the ESEA, as amended by the
ESSA, to determine how and the extent to which a State factors the 95
percent participation rate requirement into its system of annual
meaningful differentiation of schools. In support of their contention,
commenters specifically cited section 1111(e)(1)(B)(iii)(XI), which
prohibits the Secretary from prescribing the way in which a State
factors the 95 percent participation rate requirement into its
statewide accountability system. Several commenters also noted that
while the assessment participation rate was a required accountability
indicator under NCLB, it was not included among the indicators required
by section 1111(c)(4)(B) of the ESEA, as amended by the ESSA. These
commenters also stated that there is no basis in statute for the
proposed requirements for school and district improvement plans to
increase participation rates, and recommended the elimination of all
proposed actions that States, districts, and schools would be required
to take regarding schools that fail to assess at least 95 percent of
all students and students in each subgroup.
Discussion: The requirements in Sec. 200.15(b)-(c) for State
actions to factor participation rates into their accountability systems
and improve assessment participation in schools and LEAs are not
inconsistent with section 1111(e)(1)(B)(iii)(XI) of the ESEA, as
amended by the ESSA, because they do not prescribe the way in which a
State must factor the 95 percent participation requirement into its
statewide accountability system. The final regulations, like the
proposed regulations, provide options for how a State may factor the 95
percent participation rate requirement into its accountability system,
including a State-determined option. In addition, each State has
significant discretion regarding the precise manner in which it
incorporates its selected option into its overall accountability
system. Thus, we do not specify the way in which a State incorporates
the 95 percent participation rate requirement into its accountability
system.
Further, the provisions of Sec. 200.15 are consistent with, and
within the scope of, the provisions of title I, part A of the ESEA, as
amended by the ESSA, as well as with the Department's rulemaking
authority under GEPA, the DEOA, and Section 1601(a) of the ESEA, as
amended by the ESSA (previously described in the discussion on Cross-
Cutting Issues), because they are necessary to reasonably ensure that
States factor participation rate into statewide accountability systems,
as required in section 1111(c)(4)(E) of the ESEA, as amended by the
ESSA, and comply with the statutory requirement in section
1111(1)(b)(2)(B)(i) of the ESEA, as amended by the ESSA, that a State
assess all public elementary and secondary school students in the
State. As such, they also do not violate section 1111(e).
Finally, the proposed participation rate improvement plans are
intended to support effective State and local implementation of the
statutory 95 percent participation rate requirement through a
collaborative, locally determined improvement process designed to
minimize the need for more heavy-handed compliance actions by State or
Federal authorities. Consequently, we believe the improvement plan
requirements in the final regulations also are fully appropriate and
consistent with the ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter expressed support for proposed Sec.
200.15(b)(2)(iii), which provides the option that a State may identify
schools that miss the 95 percent participation rate requirement for
targeted support and improvement. However, the commenter said this
result should only be permitted if the identified schools are eligible
to receive section 1003 school improvement funds to support
implementation of their targeted support plans aimed at improving
assessment participation.
Discussion: The Department declines to make this change because the
number of schools that could be identified by a State for targeted
support and improvement due to missing the 95 percent participation
rate requirement could reduce the availability of section 1003
improvement funds for schools that are identified for comprehensive or
targeted support and improvement due to consistently poor student
outcomes.
Changes: None.
Comments: One commenter recommended that the regulations be revised
to allow States to take into account the level of assessment
participation and other factors (e.g., the number of subgroups, the
size of the participation gap, the number of years missed) in
determining consequences that would potentially increase over time if a
school continues to miss the 95 percent participation rate threshold.
Similarly, a few commenters variously recommended giving States
flexibility to design multiple State-determined actions, including
escalating interventions and supports that may be less rigorous than
those in proposed Sec. 200.15(b)(2). Another commenter suggested that
States be permitted to vary the weight given to the 95 percent
participation rate requirement, with less severe consequences if
failure to meet the requirement results from parents opting their
children out of State assessments required by the ESEA.
Discussion: The Department believes that the final regulations
governing accountability for the 95 percent participation rate, like
the proposed regulations, provide considerable flexibility for States
to take into account the circumstances attending each school that fails
to meet the 95 percent participation rate requirement. For example,
under the final regulations, a State could assign a lower summative
determination to a school that falls below the 95 percent threshold for
one subgroup, while both assigning a lower determination and
identifying for targeted support and improvement a
[[Page 86105]]
school that fails to meet the 95 percent participation requirement for
multiple subgroups. A State also could propose a set of State-
determined actions that includes escalating interventions depending on
the extent to which or how long a school has missed the 95 percent
participation rate requirement. These actions, consistent with the
section 1111(c)(4)(E) of the ESEA, as amended by the ESSA, must be
included in the State's accountability system for meaningfully
differentiating schools and identifying schools for support and
improvement. In this context it is important to note that States have
discretion under the final regulations to take more rigorous actions
for schools that consistently fail to meet the 95 participation rate
requirement or that miss the 95 percent threshold by a wide margin, or
for all students or multiple subgroups of students in the school.
However, we agree that States would benefit from greater flexibility to
devise their own State-determined actions based on the scope and extent
to which a school misses the 95 percent participation rate, and we are
revising the final regulations accordingly. We further note that the
required improvement plans also provide an opportunity for States and
districts to take into account local circumstances, such as by varying
the scope and rigor of such plans depending on the severity of the
participation rate problem in a particular school.
While we agree that States should have flexibility to determine the
action taken in the school based on the scope or extent to which a
school fails to meet the participation rate requirement, we disagree
that States should be permitted to take less rigorous actions based on
the reason for a school failing to meet the 95 percent participation
rate requirement. Ensuring that all schools meet this requirement is
essential for the integrity of the statewide accountability systems
required by the ESEA, as amended by the ESSA, and permitting
interventions that are not sufficiently rigorous risks sending the
message that it is acceptable to miss the 95 percent participation rate
requirement in some circumstances--an outcome that would not be
consistent the requirements of the ESEA, as amended by the ESSA.
Changes: We have revised Sec. 200.15(b)(2)(iv) to specify that an
State may factor the 95 percent participation rate requirement into its
system of annual meaningful differentiation through a State-determined
action or set of actions that is ``sufficiently rigorous'' to improve a
school's assessment participation so that it meets the requirement and
removed the requirements for the State-determined action to be
``equally rigorous'' and result in a similar outcome as actions
described in Sec. 200.15(b)(2)(i)-(iii).
Comments: A few commenters generally supported proposed Sec.
200.15 with the exception of language in proposed Sec.
200.15(b)(2)(iv) that would subject any State-determined action to
approval by the Department as part of the State plan review and
approval process under section 1111(a) of the Act. These commenters
believe that the Department's role, consistent with their
interpretation of the statute, should be limited to reviewing, and not
approving, proposed State-determined actions for schools failing to
meet the 95 percent participation rate requirement.
Discussion: The requirement for Department review and approval of
each State plan, which must include a description of the statewide
accountability system that complies with all the requirements in
sections 1111(c) and (d) of the ESEA, as amended by the ESSA, including
the 95 percent participation rate requirement, is specified in section
1111(a) of the ESEA, as amended by the ESSA. Limiting the Department's
role to simply reviewing proposed State-determined actions for schools
that fail to meet the 95 percent participation rate requirement would
be inconsistent with this statutory requirement.
Changes: None.
Comments: One commenter requested that the Department provide
greater clarity to States regarding what would constitute an ``equally
rigorous'' State-determined action, consistent with proposed Sec.
200.15(b)(2)(iv), in schools that do not meet the 95 percent
participation requirement for all students and all subgroups of
students. Another commenter similarly expressed concern that the term
``equally rigorous'' is subject to interpretation and thus could cause
confusion.
Discussion: We are revising ``equally rigorous'' to ``sufficiently
rigorous'' in the final regulations, as discussed previously. Given
that we have removed language regarding ``equally rigorous'' actions,
there is no need to clarify this term in the final regulations, as we
believe the revisions to the final regulation will support effective
review and approval of any proposed State-determined action or set of
actions submitted to the Department through the State plan process
under section 1111(a) of the ESEA, as amended by the ESSA. We recognize
there are many ways in which States could design actions that are
sufficiently rigorous to improve participation rates in schools that
miss the requirement under Sec. 200.15(a)(2) and therefore decline to
limit State discretion by adding more specific requirements.
Changes: None.
Comments: One commenter expressed concern that the proposed actions
for schools that miss the 95 percent participation rate requirement
would not permit flexibility when technical issues, such as the failure
of computer networks, affect test participation rates.
Discussion: The Department would retain authority under the final
regulations to address technical or logistical anomalies related to
State administration of the annual assessments required by the Act that
have a negative impact on the ability of schools to meet the 95 percent
participation rate requirement.
Changes: None.
Comments: One commenter expressed concern that the proposed
regulations would require changes to existing methods of incorporating
the participation rate into statewide accountability systems.
Discussion: We believe that the final regulations related to the 95
percent participation rate requirement, like the proposed regulations,
provide sufficient flexibility and discretion for States that already
have rigorous methods of incorporating assessment participation rates
into their statewide accountability system to use the same or similar
methods to meet the requirements of these final regulations. For
example, under Sec. 200.15(b)(2)(iv), as revised in these final
regulations, a State may propose, as part of its State plan under the
Act, a State-determined action or set of actions to factor the 95
percent participation rate requirement into its system of annual
meaningful differentiation of schools, so long as any proposed action
is sufficiently rigorous to improve participation rates in any school
that fails to assess at least 95 percent of all students or 95 percent
of students in each subgroup so that it will meet the requirements in
Sec. 200.15(a).
Changes: None.
Comments: One commenter recommended that the final regulations
include an exception to the 95 percent participation rate requirement
for States that use a small n-size, on grounds that in such cases the
effective participation rate for small schools or subgroups effectively
becomes 100 percent.
Discussion: The Department declines to make this change. Section
1111(c)(4)(E) of the ESEA, as amended by the ESSA, does not provide for
such an exception to the 95 percent participation rate requirement.
Changes: None.
[[Page 86106]]
Comments: One commenter stated that the proposed regulations
specifying a range of State actions to enforce the statutory 95 percent
participation rate requirement are unnecessary because any school
failing to meet the requirement would already be subject to State and/
or Federal compliance remedies, which could include an improvement plan
or other actions.
Discussion: The Department believes clear regulations and guidance
that promote State and local adherence to all the requirements of the
ESEA, as amended by the ESSA, better serve students, educators, and the
public than compliance remedies available under applicable law and
regulation. The final regulations provide a clear, uniform, and
understandable framework for effective implementation of the 95 percent
participation rate requirement, through collaborative efforts at the
State and local levels, which will support the overall goals and
purposes of statewide accountability systems under the ESEA, as amended
by the ESSA, while minimizing the need for heavy-handed compliance
remedies.
Changes: None.
Comments: One commenter recommended that the final regulations
regarding the 95 percent participation rate requirement include
flexibility to prevent schools that fail to meet the requirement from
being identified for comprehensive support and improvement or targeted
support and improvement if their academic performance does not support
such identification.
Discussion: We believe that the menu of options in the final
regulations provides sufficient flexibility and discretion to States to
factor the 95 percent participation rate into their statewide
accountability systems without inappropriately identifying schools for
comprehensive or targeted support and improvement.
Changes: None.
Comments: One commenter recommended delaying the State actions
required by proposed Sec. 200.15 until a school has missed the 95
percent participation rate requirement for two consecutive years. This
commenter asserted that such a delay would give schools time to meet
the 95 percent participation rate requirement without State
intervention, while ensuring that such interventions occur in schools
that continue to fail to meet the requirement.
Discussion: We appreciate commenter's recommendation in response to
the directed question in the NPRM aimed at soliciting additional or
different ways of supporting States in ensuring that low assessment
participation rates are meaningfully addressed as part of their
statewide accountability systems. However, given the statutory
requirement that each State administer academic assessments to all
public school students in the State, we believe that falling below a 95
percent participation rate requires action as part of a State's annual
system of meaningful differentiation of schools rather than what, under
the commenter's proposal, would amount to little more than a warning
after missing the 95 percent requirement for one year, even in cases
where non-participation was widespread and significant. Waiting an
additional year would jeopardize further the availability of reliable,
accurate assessment data that teachers and parents need to improve
instruction and student outcomes and that States, LEAs, and schools
need to support timely and effective school improvement consistent with
the requirements of the ESEA, as amended by the ESSA. However,
consistent with the previous regulations implementing the ESEA, as
amended by the NCLB, we are revising the final regulations to permit
States to average a school's participation rates over two to three
years for the limited purpose of meeting the requirements of Sec.
200.15(b)(2), as described in revisions to Sec. 200.20(a) under the
subheading Data Averaging.
Changes: None.
Participation Rate Improvement Plans
Comments: One commenter objected to the proposed requirement that
all schools not meeting the 95 percent participation rate requirement
develop and implement an improvement plan designed to increase
assessment participation rates. In particular, the commenter believed
that States should have flexibility around this requirement relating to
how many times a school has missed the 95 percent participation rate
requirement, the number of subgroups involved, or the size of a school
(i.e., schools with small n-sizes where a school might miss the 95
percent participation requirement due to non-participation by just one
or two students). Other commenters supported the proposed participation
rate improvement plan requirements.
Discussion: We believe the participation rate improvement plan
requirement includes much of the flexibility sought by the commenter.
For example, a school that misses the 95 percent participation rate
requirement by one or two students for a single subgroup may not
require as rigorous or comprehensive an improvement plan as a school
that has an 80 percent participation rate for the all students group.
As for triggering the requirement, section 1111(b)(2)(B) of the ESEA,
as amended by the ESSA, requires States to administer annual
assessments in reading/language arts and mathematics to all public
elementary school and secondary school students in the State and
section 1111(c)(4)(E) requires States to annually measure, for
accountability purposes, the achievement of not less than 95 percent of
all students and all students in each subgroup of students who are
enrolled in public schools. In view of these statutory requirements, we
believe requiring a participation rate improvement plan for any school
that misses the 95 percent participation rate in any year, for any
reason is consistent with the ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter recommended that schools not meeting the 95
percent participation requirement in the ESEA, as amended by the ESSA,
undertake a root cause analysis to determine the reasons for low
participation rates, with an emphasis on such issues as chronic
absence, suspension rates, school climate, student engagement, and
parental support for testing. This commenter also recommended that, in
cases where low participation rates are linked to chronic absenteeism,
the final regulations should encourage States to work with public
agencies and community stakeholders to remove barriers to regular
school attendance.
Discussion: We agree that a root cause analysis may be a useful
part of a local process to develop the participation rate improvement
plans required by the final regulations for schools that miss the 95
percent participation rate requirement, and that the factors noted by
the commenter could negatively affect assessment participation rates.
However, we decline to further prescribe the components of the required
school or district assessment rate improvement plans in recognition of
the fact that the scope of such plans may vary widely depending on
local context, and thus schools and LEAs should have discretion to
develop plans that address local needs and circumstances.
Changes: None.
Comments: One commenter expressed appreciation for the inclusion of
principals and other school leaders in the consultation requirements
for the improvement plans that would be required under proposed Sec.
200.15(c)(1), but recommended that the final regulations emphasize that
such plans should be developed under the
[[Page 86107]]
leadership of, and not just in consultation with, school principals.
Discussion: We believe that the final regulations, like the
proposed regulations, provide sufficient flexibility to support strong
leadership for principals in the development of participation rate
improvement plans, while recognizing that in some cases other
individuals or organizations (e.g., the local Parent Teacher
Association) could take the lead in developing such plans.
Changes: None.
Comments: One commenter requested that the Department clarify the
meaning of the term ``significant number of schools'' as used in
proposed Sec. 200.15(c)(2), which requires participation rate
improvement plans for districts with a significant number of schools
that fail to meet the 95 percent participation rate requirement.
Discussion: The Department declines to define or offer parameters
around the term ``significant number of schools'' in the final
regulations because the meaning may vary depending on local context and
circumstances. For example, in a medium-size district, 5 schools could
constitute a significant number, while 15 schools might not be
considered a significant number of schools in a large district.
However, the final regulations clarify that States may consider the
number or percentage of schools failing to meet the participation rate
requirement.
Changes: We have revised Sec. 200.15(c)(2) by replacing the term
``a significant number of schools'' with ``a significant number or
percentage of schools.''
Comments: One commenter recommended clarifying that locally based
approaches to improving test participation may be incorporated into
State accountability systems.
Discussion: We believe that Sec. 200.15(b)(2)(iv) provides
sufficient flexibility to incorporate locally based approaches to
improving assessment participation rates into a State-determined option
for factoring participation rates into statewide accountability systems
without further elaboration in the final regulations.
Changes: None.
Comments: Two commenters recommended that the improvement plan
requirement in proposed Sec. 200.15(c)(1) for schools that miss the 95
percent participation rate requirement be expanded to cover schools
that fail to assess at least 95 percent of their English learners on
the ELP assessment. These commenters observed that including 100
percent of English learners in ELP assessments is increasingly
difficult due to a combination of the opt-out movement and high
mobility among English learners, and asserted that requiring
improvement plans for schools that do not assess at least 95 percent of
their English learners on the ELP assessment would help improve
participation rates on that assessment. These commenters further stated
that such a requirement would align accountability requirements under
the ESEA, as amended by the ESSA, while holding English learner
students to a standard no higher than that of all other students.
Another commenter requested clarification on whether the 95
participation rate requirement applies to ELP assessments.
Discussion: The 95 percent participation rate requirement is
statutorily limited to the reading/language arts and mathematics
assessments required by section 1111(b)(2)(v)(I) of the ESEA, as
amended by the ESSA, and there is no basis for applying this
requirement to ELP assessments. Moreover, such application, even to the
extent of requiring participation rate improvement plans for schools
that fail to administer ELP assessments to 95 percent of their English
learner students, would send a confusing message to States, districts,
and schools about the requirement under section 1111(b)(2)(G)(i) of the
ESEA, as amended by the ESSA, to administer ELP assessments to all such
students. In addition, any regulatory action that might be interpreted
as permitting schools to administer ELP assessments to fewer than 100
percent of English learners would likely be judged inconsistent with
applicable civil rights laws.
Changes: None.
Other Comments on Participation in Assessments
Comments: One commenter recommended that the Department clarify
proposed Sec. 200.15(d)(2) to specify that disciplinary actions may
not be used to systematically exclude students in any subgroup of
students from participating in State assessments required by the ESEA.
Discussion: The Department agrees that disciplinary actions should
not be used to exclude students from participating in assessments, but
declines to enumerate in the final regulations the various methods and
practices that may result in systematic exclusion of students from
assessment participation. Such examples are more appropriate for non-
regulatory guidance. We are, however, revising the final regulations to
clarify that systematic exclusion of students from the assessment
system on any basis is not permitted, and that students may not be
systematically excluded on State assessments any content area: Reading/
language arts, mathematics, or science.
Changes: We have revised Sec. 200.15(d)(2) to clarify that a
State, LEA, or school may not systematically exclude students,
including any subgroup of students described in Sec. 200.16(a), from
participating in the State assessments in reading/language arts,
mathematics, and science.
Comments: One commenter urged the Department to clarify in the
final regulations that proposed Sec. 200.15(d)(3), which permits
counting a student with the most significant cognitive disabilities who
is assessed based on alternate academic achievement standards described
in section 1111(b)(1)(E) of the ESEA, as amended by the ESSA, as a
participant for purposes of meeting the 95 percent participation rate
requirements only if a State has developed the guidelines required by
section 1111(b)(2)(D)(ii) of the ESEA, as amended by the ESSA, and
ensures that its LEAs adhere to such guidelines, applies only for the
purposes of calculating the participation rate. The commenter also
sought clarification that students who take the alternate assessment,
but are not counted as participants for calculating the participation
rate because the State has not developed appropriate guidelines for IEP
teams, should be counted as participants for calculating proficiency.
Discussion: We appreciate the concerns of the commenter but believe
that the recommended clarifications are more appropriately addressed in
non-regulatory guidance.
Changes: None.
Comments: One commenter recommended revising the final regulations
to use the 95 percent participation rate requirement to increase
school-level accountability for students who drop out and to
incentivize reengagement efforts. More specifically, the commenter
recommended that students who do not participate in assessments, and
who have not been removed from a high school cohort because there is no
documentation to support their removal as outlined in Sec.
200.34(b)(3), be included in the denominator when calculating the 95
percent assessment participation rate.
Discussion: The Department appreciates and shares the commenter's
commitment to increase high school graduation rates. However, we
decline to make the recommended changes
[[Page 86108]]
because they are not consistent with the overall purpose of the 95
percent participation rate requirement. That purpose is to help ensure
the highest possible rates of student participation in the assessments
in reading/language art and mathematics that are used in statewide
accountability systems under the ESEA, as amended by the ESSA, and not
to serve as a lever or incentive to improve other student outcomes.
Changes: None.
Comments: Two commenters recommended revising proposed Sec. 200.15
to recognize the right of Native American students receiving
instruction in Native American language medium schools to opt out of
State assessments in reading/language arts and mathematics that are
administered in English. These commenters also requested that States be
required to exclude such students from the 95 percent participation
rate requirement if the State lacks an appropriate assessment in the
Native American language.
Discussion: The Department declines to make these changes because
the ESEA, as amended by the ESSA, does not provide for an exception to
the 95 percent participation rate requirement for Native American
students receiving instruction in Native American language medium
schools. In addition, a policy of excluding certain students from
statewide assessments would be inconsistent with the purpose of title I
to close educational achievement gaps.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed regulations, the Department
believes it is helpful to clarify the reason recently arrived English
learners may be counted as participants on the State's reading/language
arts assessment if they take either the State's reading/language arts
assessment or the State's English language proficiency assessment;
specifically, this flexibility applies to recently arrived English
learners that may be exempted from one administration of the State's
reading/language arts assessment, as described in Sec.
200.16(c)(3)(i)(A), and not to other recently arrived English learners
who take the State's reading/language arts assessment in each year of
their enrollment in U.S. schools. This clarification is necessary
because the ESEA, as amended by the ESSA, added an additional exemption
that States may consider for holding schools accountable for the
performance of recently arrived English learners, which requires
assessment in reading/language arts in the first year of the student's
enrollment in U.S. schools as described in Sec. 200.16(c)(3)(ii).
Changes: We have revised Sec. 200.15(d)(4) to clarify that this
provision applies to recently arrived English learners who are exempted
from one administration of the State's reading/language arts assessment
consistent with Sec. 200.16(c)(3)(i)(A).
Section 200.16 Subgroups of Students
Comments: A few commenters suggested that the Department replace
the word ``subgroups'' with the term ``student groups'' throughout the
regulations. One commenter explained that the term subgroup is an
outdated term that implies that some groups are lesser than others.
Discussion: We appreciate the commenters' suggestion, but believe
it is beneficial to use the same terminology contained in the statute.
Therefore, throughout the regulations, we refer to subgroups of
students.
Changes: None.
Comments: Two commenters asked that the Department modify proposed
Sec. 200.16 to specify that a student who meets the definition of
English learner in section 8101(20) of the ESEA and who is instructed
primarily through a Native American language be included in the English
learner subgroup for the entire time that the student is taught in a
Native American language, and that such students who transfer to a
school in which instruction is in English may be considered as newly-
enrolled English learners.
Discussion: As the commenters note, the term ``English learner'' is
defined in section 8101(20) of the ESEA, as amended by the ESSA. That
definition includes provisions under which a student who is Native
American or Alaska Native and who comes from an environment where a
language other than English has had a significant impact on his/her
level of English language proficiency is considered an English learner.
States include students in the English learner subgroup for
accountability as long as they are ``English learners.'' Specifically,
under section 3113(b) of the ESEA, as amended by the ESEA, and
Sec. Sec. 299.13(c)(2) and 299.19(b)(4) of the final regulations,
States must establish standardized statewide entrance and exit
procedures for English learners, which, as in Sec. 299.19(b)(4) of the
final regulations, require English learner exit criteria to be the same
criteria used to exit students from the English learner subgroup for
accountability purposes. The issue of when a student is no longer an
``English learner'' is not dependent on the classroom language of
instruction. Because the exit procedures are not related to the
language of instruction, there is no need for the specific provisions
requested. In addition, we note that Sec. 200.16(c) permits States to
include in the English learner subgroup the performance of former
English learners for four years, for purposes of calculating any
indictor that is based on data from State assessments under section
1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
Changes: None.
Combined Subgroups of Students (``Super Subgroups'')
Comments: Many commenters expressed support for what they believed
was a prohibition against combined subgroups of students in the
proposed regulations. One commenter suggested that Sec. 200.16(c) be
clarified to explain that a State may not combine any of the subgroups
listed in Sec. 200.16(a)(2) as an additional subgroup.
Discussion: We appreciate the support from commenters highlighting
the importance of accountability for individual subgroups of students,
but note that the proposed regulations did not prohibit combined
subgroups entirely; rather, they require the use of specified
individual subgroups of students for certain purposes in statewide
accountability systems and permit the use of additional subgroups of
students in its statewide accountability system, which may include
combined subgroups of students. Consistent with section 1111(c)(2) of
the ESEA, the regulations require that a State include certain
subgroups of students, separately, when establishing long-term goals
and measurements of interim progress under Sec. 200.13, measuring the
performance on each indicator under Sec. 200.14, annually meaningfully
differentiating schools under Sec. 200.18, and identifying schools
under Sec. 200.19. These subgroups of students include economically
disadvantaged students, students from each major racial and ethnic
group, children with disabilities, as defined in section 8101(4) of the
ESEA, and English learners, as defined in section 8101(20) of the ESEA.
However, the statute does not prohibit a State from using additional
subgroups in its statewide accountability system, which may include
combined subgroups. We also believe it is appropriate for States to
retain flexibility to include various additional subgroups, based on
their contexts, so long as each required individual subgroup is also
considered. Accordingly, we are not revising the regulations.
[[Page 86109]]
Changes: None.
Comments: A number of commenters supported the requirement that a
combined subgroup cannot be used in place of considering each of the
required individual subgroups. A few commenters focused on the
importance of maintaining the individual subgroups included in the
proposed regulations. Some commenters noted that the use of so-called
``super subgroups'' in school ratings can mask underperformance of some
individual subgroups of students, making it more difficult to identify
schools with one or more consistently underperforming subgroups of
students for targeted support and improvement, making it more
challenging to provide specialized supports to support improvement, and
limiting information available to the public and parents. Other
commenters stated that combining subgroups of students without
considering individual subgroups of students is contrary to the
statutory purpose of increasing transparency, improving academic
achievement, and holding schools accountable for the success of each
subgroup. One commenter noted that there are different funding streams
for particular subgroups of students, and that retaining individual
definitions of these subgroups helps to ensure accountability for use
of these funds.
Some commenters highlighted that a combined subgroup can be
important as an additional subgroup, as it may allow a State to include
students in the statewide accountability system that would not
otherwise be included. One commenter provided a State-level example to
highlight how many more students are identified in a State
accountability system when a combined subgroup is used in addition to
individual subgroups.
A few commenters supported the use of combined subgroups for
accountability and believe a State should be able to use them in place
of each of the required subgroups. Other commenters suggested that
holding schools accountable for individual subgroups of students could
raise questions regarding the validity and reliability of statewide
accountability systems. Some commenters suggested that combined
subgroups should be permitted for accountability, but that individual
subgroups should be maintained for reporting.
Discussion: We appreciate the wide range of views from commenters
both in support of and in opposition to the requirement that each
individual subgroup described in Sec. 200.16(a)(2) must be considered
in a State's accountability system, and that such subgroups cannot be
replaced by a combined subgroup. We believe that the final regulations
strike the appropriate balance between ensuring accountability for
individual subgroups of students specified in the ESEA, as amended by
the ESSA, while also providing flexibility for States to include
additional subgroups, including combined subgroups, in their statewide
accountability systems.
Changes: None.
Comments: One commenter opposed the requirement that all indicators
in a statewide accountability system measure the performance of each
subgroup of students that meets the minimum n-size because it would
increase the likelihood of diverse schools missing goals or receiving
lower school ratings.
Discussion: We acknowledge the commenter's concern, but believe
that the ESEA, as amended by the ESSA, requires the consideration of
individual subgroups for accountability purposes. Annual meaningful
differentiation of school performance is addressed in greater detail in
response to comments on Sec. 200.18.
Changes: None.
Comments: One commenter suggested that the Department consider
allowing the use of the combined subgroup approach for the English
learners, children with disabilities, and economically disadvantaged
subgroups of students, provided that each State that combines these
subgroups of students reports data on each subgroup individually as
well as each of the ways that these three groups of students may be
combined.
Discussion: We believe that the ESEA, as amended by the ESSA,
requires the consideration of these individual subgroups of students
for accountability purposes, and not, as recommended by the commenter,
just for reporting purposes.
Changes: None.
Comments: One commenter requested that the proposed regulations be
clarified to reflect that each subgroup of students should not include
any duplicated students. Another commenter suggested that the use of
combined subgroups of students in place of individual subgroups of
students would help address what the commenter described as the problem
of including students in multiple subgroups (e.g., an economically
disadvantaged student who is also a child with a disability).
Discussion: We appreciate that under both the ESEA, as amended by
the ESSA, and the proposed regulations some students may be identified
in more than one subgroup of students, but we believe this duplication
is essential to ensure that statewide accountability systems account
for and help address what often are the multiple needs of individual
students for different types of academic and non-academic support.
Reducing such duplication through the use of a combined subgroup could
mask underperformance by individual subgroups of students and thus
inhibit the provision of needed services and supports for such
students.
Changes: None.
Racial and Ethnic Subgroups
Comments: One commenter supported the requirement that a State
consider each major racial and ethnic subgroup separately in its
statewide accountability system. A few commenters, however, objected to
the proposed requirement that students from each major racial and
ethnic subgroup must be considered separately for the purposes of
statewide accountability systems as an overreach of the Department's
authority. These commenters asserted that the absence of the word
``each'' in the reference to students from major racial and ethnic
groups in section 1111(c)(2)(B) of the ESEA, as amended by the ESSA,
should be interpreted as providing flexibility for States to use a
combined subgroup of students that includes students from all racial
and ethnic groups. The commenters explained that the performance of
students in individual racial and ethnic subgroups can still be
reported for transparency.
Discussion: We agree with the commenter who expressed support for
the regulations requiring a State to consider each major racial and
ethnic subgroup separately for the purposes of its statewide
accountability system. We believe that this regulation reflects the
best reading of the statute, and do not agree with those commenters who
assert that the absence of the word ``each'' from section 1111(c)(2)(B)
of the ESEA, as amended by the ESSA, indicates that Congress intended
for students from all major racial and ethnic groups to be combined
into one subgroup. Such a subgroup would be virtually, if not
completely, duplicative of all students, which could not have been
Congress' intent. Rather, we believe Congress' reference to ``major
racial and ethnic groups'' was intended to refer to the fact that
States have authority to determine what the major racial and ethnic
groups in their State are for purposes of compliance with this
requirement. As such, there is not one list of major racial and ethnic
groups that Congress could have included within section 1111(c)(2)
[[Page 86110]]
of the ESEA, as amended by the ESSA. Accordingly, we believe the
regulatory clarification that ``each'' major racial and ethnic subgroup
must be included is necessary to reasonably ensure compliance with this
provision of the statute, and to ensure that States incorporate
differentiated information for historically underserved subgroups of
students into their accountability systems, thereby promoting
educational equity. We note, further, that this interpretation of the
statute is consistent with the interpretation of identical language
used in prior authorizations of the ESEA.
Changes: None.
Comments: One commenter suggested that the Department require every
student to be included as a member of one major racial and ethnic
subgroup. The commenter indicated concern that when a student is
included as a member of the ``two or more races'' subgroup of students
the student may not be identified as a member of any one specific
racial and ethnic subgroup should the ``two or more races'' subgroup of
students not be identified by the State, which could result in the
State not collecting data on all students. The commenter expressed that
requiring each student to be a part of one racial and ethnic subgroup
will help to ensure that subgroups of students meet the minimum n-size
and can be included in a State accountability system.
Discussion: We appreciate the commenter's desire to ensure that
subgroups of students accurately reflect the population of the school.
Section 1111(c)(2)(B) requires a State to identify, for the purposes of
including required subgroups of students in its statewide
accountability system, ``students from major racial and ethnic
groups.'' This requirement places responsibility on each State to
identify which racial and ethnic groups are ``major'' within the State.
Therefore, we decline to define in the final regulations which
subgroups of students must be included in a State's major racial and
ethnic subgroups, as that is a State-specific determination. For the
purposes of Federal data collection, the Department published final
guidance in 2007 that allows individuals to select more than one race
and/or ethnicity and expanded the reporting categories to include ``two
or more races.'' Accordingly, a State may choose to include two or more
races as a subgroup of students for accountability purposes, if the
State considers that subgroup of students to be a major one within the
State. We appreciate the commenter's concern that there may be small
numbers of students in certain subgroups of students, and therefore,
that students in those smaller subgroups of students may not be
identified in a State's statewide accountability system, and address
that issue in response to comments on Sec. 200.17 (disaggregation of
data).
Changes: None.
New Subgroups
Comments: A number of commenters requested that States be required
to include additional subgroups beyond those listed in proposed Sec.
200.16, including, for example, Native American students who attend
Native American Language Schools and Programs, juvenile justice-
involved youth, LGBT students, students who did not attend preschool,
homeless students, transient students, and migratory students.
Discussion: The individual subgroups of students currently required
in statewide accountability systems by the regulations are consistent
with those required by the ESEA, as amended by the ESSA. While we
understand that creating additional subgroups of students may help
focus needed attention of underserved students with unique academic and
non-academic needs, we believe States should have discretion over the
inclusion of any additional subgroups in their statewide accountability
systems. Consequently, we decline to provide further regulation in this
area.
Changes: None.
Comments: One commenter noted that proposed Sec. 200.16(b)(2)
included a reference to students with a disability who are covered
under Section 504 of the Rehabilitation Act (Section 504) when
discussing students who are English learners with a disability and
raised questions regarding the inclusion of students receiving services
under Acts other than the IDEA. The commenter noted that nowhere else
in the proposed changes, nor historically in EDFacts data collections,
have students served under Section 504 been included with the subgroup
of children with disabilities, as EDFacts collects information only on
students identified as children with disabilities under the IDEA. The
commenter questioned whether States should expect that students with
disabilities covered under Section 504 will be included in the children
with disabilities subgroup for the purposes of reporting, and asked for
additional clarification about whether the Department intends to
require separate reporting for students with disabilities covered under
Section 504.
Discussion: We appreciate the request for clarification about this
provision of the proposed regulations, which applies only to the
English learner subgroup of students with regard to using the State's
ELP assessment within the Progress in Achieving English Language
Proficiency indicator. Under the section 1111(b)(2) of the ESEA, as
amended by the ESSA, assessment accommodations for all students,
including English learners, extend to students with disabilities
covered under the IDEA, Section 504, and students with a disability who
are provided accommodations under other Acts (i.e., title II of the
Americans with Disabilities Act (ADA)). To be more consistent with
these statutory requirements, we are revising the final regulations on
English learners with a disability to include English learners that
receive services under title II of the ADA. It is possible that English
learners with a disability covered under IDEA, Section 504, or title II
of the ADA may have a disability for which there are no available and
appropriate accommodations for one or more domains of the State's ELP
assessment because the student has a disability that is directly
related to that particular domain (e.g., a non-verbal English learner
who because of an identified disability cannot take the speaking
portion of the assessment, even with accommodations)--the students
described in proposed Sec. 200.16(b)(2). Under the final regulations,
we are clarifying that this determination can be made, on an
individualized basis, by the student's IEP team, the student's 504
team, or for students covered under title II of the ADA, by the
individual or team designated by the LEA to make those decisions; for
such an English learner, the State must include the student's
performance on the ELP assessment based on the remaining domains in
which it is possible to assess the student. Whether the student
receives services under the IDEA or is not eligible for services under
the IDEA, but receives services under Section 504 or title II of the
ADA, this student's score would count for the purpose of measuring
performance against the Progress in Achieving English Language
Proficiency indicator.
These regulations do not create an additional subgroup for
accountability or for reporting purposes on the performance of students
with disabilities who receive services under Section 504 or title II of
the ADA who are also English learners. Additionally, we note that under
section 3121(a)(2) of the ESEA, as amended by the ESSA, an LEA must
provide disaggregated data when reporting the number and percentage of
English learners making progress toward ELP for English learners
[[Page 86111]]
with disabilities. The term ``English learner with a disability'' is
defined in the ESEA to mean an English learner who is also a child with
a disability as defined under section 602 of the IDEA. Rather than
modifying the students included in the children with disabilities
subgroup, the Department intended for these provisions to emphasize the
importance of ensuring that there are available and appropriate
accommodations for English learners who are also students with
disabilities and who receive services under the IDEA, Section 504, or
title II of the ADA.
Changes: We have revised Sec. 200.16(c)(2) to clarify that the
accommodations for English learners with a disability are determined on
an individualized basis by the student's IEP team, 504 team, or
individual or team designated by the LEA to make these decisions under
title II of the ADA.
Former Children With Disabilities
Comments: A number of commenters replied to the Department's
directed question asking whether the provision to allow a State to
include the scores of students who were previously identified as
children with disabilities under section 602(3) of the Individuals with
Disabilities Education Act (IDEA), but who no longer receives special
education services (``former children with disabilities''), in the
children with disabilities subgroup for the limited purpose of
calculating the Academic Achievement indicator, and if so, whether such
students may be included in the subgroup for up to two years consistent
with current title I regulations, or for a shorter period of time.
A few commenters indicated that a State should have the flexibility
to include the scores of former children with disabilities for the
purpose of calculating the Academic Achievement indicator for up to
four years, consistent with the statutory approach for former English
learners. One commenter indicated that this approach would recognize
that the student population changes over time and allow schools to be
rewarded for the progress they have made in supporting former children
with disabilities even after they exit from special education services.
Another commenter asserted that the proposed flexibility would be
important as students are still often receiving specialized supports
when they have recently exited from special education services. A few
commenters endorsed this approach so that students in the children with
disabilities subgroup would be treated the same way as students
formerly in the English learner subgroup. Another commenter believed
that the flexibility should be more expansive so that a State could
include the scores of former children with disabilities for as long as
the State determines to be appropriate. The commenter cited the example
of a student with a language-based disability who is instructed in a
Native American language and may overcome the disability as related to
the Native American language, and then encounter the disability again
when transferred to a school where the student receives instruction in
English.
A number of commenters supported States having the flexibility to
include the scores of former children with disabilities in the children
with disabilities subgroup for the purpose of calculating the Academic
Achievement indicator for up to two years. The commenters contended
that this flexibility would provide appropriate incentives to exit
students from special education when they no longer require services
and receive credit for the progress that schools have made in
supporting such students. A few commenters also noted that it would
ensure that schools remain accountable for the academic progress of
children with disabilities once they exit from special education
services. One commenter highlighted that students who transfer from
special education back to general education make up about 9.3 percent
of students aged 14-21 who exit a State's special education services
under IDEA and explained that allowing their scores to be counted in
the children with disabilities subgroup for up to two years would allow
a State to continue monitoring and better understand special education
and general education student performance.
On the other hand, many commenters objected to allowing a State to
include the scores of former children with disabilities in the children
with disabilities subgroup for purposes of calculating the Academic
Achievement indicator. Most of these commenters agreed that the last
year a student should count in the subgroup of children with
disabilities is the year in which the student exits from receiving
special education services. These commenters emphasized the need for
accountability systems to accurately reflect students who are currently
receiving special education services in the subgroup of children with
disabilities. One commenter suggested that this flexibility would
confound the baseline data in States, while a few commenters noted that
unlike with respect to former English learners, the law does not
explicitly provide States with the flexibility to include former
children with disabilities in the subgroup of children with
disabilities. One commenter asserted that extending flexibility to
former children with disabilities would exceed the Department's
rulemaking authority because such flexibility is not included in
statute. A few other commenters suggested that past reasons for
including former children with disabilities in the subgroup of children
with disabilities are irrelevant under the ESSA because of changes to
the accountability requirements. One commenter indicated that including
the achievement of former children with disabilities for purposes of
determining the achievement of the subgroup of children with
disabilities under the ESSA's accountability structure will result in a
system in which former children with disabilities are included for some
purposes, but not all--adding confusion to the system and undermining
transparency. A few commenters objected to this flexibility, noting
that while English learners are expected to gain proficiency and exit
English learner status, the goal for children with disabilities is not
necessarily to exit special education services. One commenter indicated
that there is not sufficient data on how many States, if any, are
currently using this option and another suggested it is not the
methodology employed within its State.
Finally, one commenter suggested that former children with
disabilities who are included in the subgroup of children with
disabilities should also be counted in calculations of whether a
school's subgroup of children with disabilities exceeds the State's n-
size.
Discussion: We appreciate the comments in response to the directed
question. We asked this question to determine whether we should
maintain the flexibility that exists under Sec. 200.20 of the current
regulations. Current Sec. 200.20 provides that in determining AYP for
English learners and students with disabilities, a State may include in
the English learner and students with disabilities subgroups,
respectively, for up to two AYP determinations, scores of students who
were previously English learners, but who have exited English learner
status, and scores of students who were previously identified as a
child with a disability under section 602(3) of the IDEA, but who no
longer receive services.
We believe the flexibility to count the scores of former children
with disabilities in the subgroup of children with disabilities for up
to two years after the student exits services for the limited
[[Page 86112]]
purpose of calculating indicators that are based on data from the
required State assessments in reading/language arts and mathematics
under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA,
recognizes the progress that schools and teachers make to exit students
from special education and provides an incentive to continue to support
such students in the initial years in which the student is
transitioning back to general education. We also agree that it is
critical to maintain a transparent subgroup of children with
disabilities, so that the subgroup data are accurate and schools are
appropriately identified for supports. To that end, the final
regulations require that a State include such scores only if the scores
of all former children with disabilities are included in conformance
with a uniform statewide procedure. Allowing a State to select which
former children with disabilities to include, for which purposes, or
for how long could undermine the fairness of accountability systems
across the State by encouraging the inclusion of higher-achieving
former children with disabilities only, or encouraging the inclusion of
higher-achieving former children with disabilities for longer periods
of time than their lower-achieving peers. We note that this regulation
is a limited exception as it only allows a State to include these
scores for the purposes of calculating indicators that rely on State
assessment data in reading/language arts and mathematics and, as noted
in proposed Sec. 200.16(d), does not extend such flexibility to other
elements of the statewide accountability system or for reporting
purposes.
However, we are not persuaded that either available data or current
practices related to including former children with disabilities in the
subgroup of children with disabilities justify extending this
flexibility beyond two years, whether it be up to four years as is the
case for former English learners or for a State-determined period of
time as recommended by one commenter.
We do not agree that the fact that Congress specifically provided
flexibility to include the scores of former English learners in the
subgroup of English learners precludes the Department from offering
flexibility to include the scores of former children with disabilities
in the subgroup of children with disabilities. Nothing in the statute
indicates that, by offering flexibility for one subgroup of students,
Congress intended to prohibit similar flexibility for other subgroups
of students. Providing this flexibility with respect to former children
with disabilities constitutes a reasonable exercise of the Department's
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the
ESEA, as amended by the ESSA, and does not violate section 1111(e) of
the ESEA, as amended by the ESSA (see discussion of the Department's
general rulemaking authority under the heading Cross-Cutting Issues),
as such flexibility is necessary to reasonably ensure that each
statewide accountability system is appropriately designed to improve
student academic achievement and school success, in accordance with the
requirements in section 1111(c)(4) of the ESEA, as amended by the ESSA.
For all of these reasons, we are revising Sec. 200.16 to retain
the flexibility provided in the current regulations for former children
with disabilities. We also are revising Sec. 200.16 to require States
to count former children with disabilities who are included in the
subgroup of children with disabilities for purposes of determining
whether a school's subgroup of children with disabilities exceeds the
State's n-size for the purposes of calculating any indicator that is
based on State assessment data, in accordance with the similar
treatment for former English learners.
Changes: We have revised Sec. 200.16 by adding Sec. 200.16(b) to
allow a State to include the scores of former children with
disabilities for up to two school years following the year in which the
student exits from special education services for the purposes of
calculating any indicator under Sec. 200.14(b) that uses data from
State assessments under section 1111(b)(2)(B)(v)(I) of the ESEA, as
amended by the ESSA, including that such a student must also count
toward whether the school meets the State's minimum number of students
for the children with disabilities subgroup for measuring any such
indicator, and that the State must develop a uniform statewide
procedure for doing so that includes all such students for the same
State-determined period of time. We also made conforming edits to the
remaining paragraphs in Sec. 200.16 and reorganized and renumbered
them, including by adding a paragraph on limitations in Sec. 200.16(d)
to clarify the purposes for which both former English learners and
children with disabilities may be included, consistent with revisions
to Sec. 200.34 on calculating four-year adjusted cohort graduation
rates.
Comments: One commenter suggested that the flexibility to include
former children with disabilities should extend to the Graduation Rate
indicator, as well as the Academic Achievement indicator, believing
that including the scores of exited students in both indicators will
provide a better snapshot of school performance over time. Another
commenter suggested that the flexibility to include former children
with disabilities in the children with disabilities subgroup should
extend across all indicators and to identification of schools for
targeted support and improvement.
Discussion: We believe that revisions to Sec. 200.34 of the final
regulations addresses the commenter's concern with regard to graduation
rates, because those revisions require a child with a disability to be
included in the adjusted cohort graduation rate for the children with
disabilities subgroup if the student was identified as part of the
subgroup at any time during high school. In practice, this means that
if a student exited from receiving special education services in grade
9 and graduated in four years, the student will count as a graduate for
the subgroup of children with disabilities, even though the student did
not receive services under IDEA for the student's final three years of
high school. Further, a State may include the results of former
children with disabilities in other indicators, such as Academic
Progress, if the measure is based on data from the required State
assessments in reading/language arts or mathematics (e.g., student
growth or gap closure on these assessments). However, we do not believe
further flexibility is warranted with regard to other indicators used
for differentiation and identification of schools that do not utilize
data from State assessments, as States already have significant
discretion in selecting measures for other indicators that take into
account school climate, student engagement, or other factors that are
less directly related to academic achievement.
Changes: We have revised Sec. 200.16(d) to clarify the purposes
for which both former English learners and children with disabilities
may be included within the applicable subgroups, consistent with
revisions to Sec. 200.34 on calculating adjusted cohort graduation
rates.
Comments: One commenter suggested that the ability to include the
scores of former children with disabilities should not apply to
students whose parents revoke consent to the continued provision of
special education services.
Discussion: We believe it would create undue confusion to create an
exception for parents who revoke consent to the general rule about
including the scores of former children with disabilities, especially
as this provision is already limited in scope to the calculation of
indicators that are
[[Page 86113]]
based on data from State assessments required under section
1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
Changes: None.
Former English Learners
Comments: A number of commenters requested that a State be
permitted to include former English learners for calculating indicators
in addition to the Academic Achievement indicator. One of those
commenters requested that former English learners also be included for
reporting purposes.
Discussion: Section 1111(b)(3)(B) of the ESEA, as amended by the
ESSA, permits inclusion of former English learners' results on the
reading/language arts and mathematics assessments for up to four years
for purposes of English learner subgroup accountability. These
assessment results are included in the Academic Achievement indicator,
as recognized in the proposed regulations, but we agree with
commenters, in part, that there may be cases where other indicators
should include former English learners because the indicator is also
based on data from the required State assessments in reading/language
arts or mathematics (e.g., a State that measures growth in reading/
language arts and mathematics in grades 3-8 in its Academic Progress
indicator). Further, we believe this interpretation is more consistent
with the statutory provision in section 1111(b)(3)(B) of the ESEA.
Thus, we are revising the final regulations to clarify that, if a State
chooses to include former English learners for accountability purposes,
such students may be included in any indicator under the ESEA that uses
results from the State's reading/language arts and mathematics
assessments. In any case where required State assessments in reading/
language arts and mathematics are not included in an accountability
indicator, former English learners may not be included, as expanding
this flexibility to indicators that are not based on such State
assessments or reporting would potentially limit subgroup
accountability for current English learners in contravention of the
statute. However, consistent with revisions to Sec. 200.34, an English
learner may be included for purposes of calculating the adjusted cohort
graduation rate for the subgroup if the student was identified as part
of the subgroup at any time during high school. In practice, if a
student met the State's exit criteria for English learners in grade 11
and graduated in four years, the student could be counted as a graduate
in the four-year adjusted cohort graduation rate for the English
learner subgroup, even though the student did not receive language
instruction services for the final year of high school. We believe that
this additional flexibility partially addresses the commenters' concern
with regard to the Graduation Rate indicator, but we do not believe
further flexibility is warranted with regard to other indicators, as
States already have significant discretion in selecting measures for
other indicators that take into account student progress, school
climate, student engagement, or other factors that are less directly
related to academic achievement.
Changes: We renumbered and revised Sec. 200.16(d) to clarify the
purposes for which both former English learners and children with
disabilities may be included within the respective subgroups,
consistent with revisions to Sec. 200.34 on calculating adjusted
cohort graduation rates.
Comments: A number of commenters expressed their support for
proposed Sec. 200.16(b)(1), permitting a State to include in the
Academic Achievement indicator, for up to four years, a student who has
exited English learner status. One such commenter, however, noted
concern that allowing former English learners to be included may mask
the performance of the English learner subgroup.
Discussion: We appreciate the support for proposed Sec. 200.16(b),
as well as the concern about masking of subgroup performance. Section
1111(b)(3)(B) of the ESEA, as amended by the ESSA, gives States the
discretion to include the scores of former English learners on the
reading/language arts and mathematics assessments for up to four years
for purposes of English learner subgroup accountability; States are not
required to do so. In addition, we believe that the masking concern is
mitigated by Sec. 200.16(d), which excludes former English learners
from the English learner subgroup for reporting purposes (except those
directly related to reporting on the indicators where such students may
be included), thus ensuring that parents and other stakeholders receive
information about the performance of current English learners through
the reporting requirement. Further, we note that the inclusion of
former English learners, if a State chooses to do so, may increase the
likelihood that schools are held accountable for the English learner
subgroup, as such students must be counted toward meeting the State's
minimum number of students for indicators that are based on data from
State assessments in reading/language arts and mathematics. To that
end, we are clarifying Sec. 200.16(c)(1)(ii) to specify that this
provision on counting former English learners towards meeting the
State's minimum number of students only applies for such indicators.
Changes: We have revised the regulations in Sec. 200.16(c)(1)(ii)
to specify that former English learners are included for purposes of
calculating whether a school meets the State's minimum number of
students under Sec. 200.17(a) for the English learner subgroup on any
indicator under Sec. 200.14(b) that uses data from State assessments
under section 1111(b)(2)(B)(v)(I) of the ESEA, as amended by the ESSA.
Comments: One commenter asked that the Department clarify that an
English learner whose parents refuse services should not be considered
a former English learner for purposes of proposed Sec. 200.16(b)(1).
In addition, commenters requested clarification that an English learner
who exits status during the school year would be considered an English
learner--not a former English learner--in that school year.
Discussion: We agree that only students who have exited English
learner status can be considered as students who have ceased to be
identified as English learners; English learners whose parents have
opted the student out of services are still English learners until they
meet the State's exit criteria. We also agree that students who do meet
the exit criteria during the school year should count as an English
learner for that school year. We are therefore clarifying, in Sec.
200.16(c), that the regulation applies only to students who have met
the State's exit criteria, beginning with the year after they meet
those criteria.
Changes: We have modified Sec. 200.16(c) to clarify how to
calculate the four years after a student ceases to be identified as an
English learner (i.e., the four years following the year in which the
student meets the statewide exit criteria, consistent with Sec.
299.19(b)(4)).
English Learners With a Disability
Comments: A few commenters provided suggestions related to English
learner students who are unable to be assessed in all four domains of
language on the ELP assessment, as related to the requirement that such
a student's performance be included in the Progress in Achieving
English Language Proficiency indicator. Most commenters indicated
support for proposed Sec. 200.16(b)(2), which requires that if an
English learner's IEP team or 504 team determines that the student is
unable to
[[Page 86114]]
be assessed in all four domains of language, the State must include the
student's performance on the ELP assessment based on the remaining
domains in which it is possible to assess the student. One commenter
expressed hope that this exception would truly be an exception, and not
apply to most English learners with disabilities. Another commenter
supported the rule but suggested the addition of language indicating
that the composite score for any student not assessed in the four
domains of language must be valid and reliable. Additionally, a
commenter suggested that the Department add language to the proposed
regulations to allow accommodations for students with disabilities who
have limited or no oral speech to take the speaking components of State
assessments generally in ways that measure communication skills rather
than only oral speech. The commenter provided specific examples of such
accommodations, including using text-to-speech, sign language, and/or
augmentative and assistive communication devices.
One commenter disagreed with the proposed regulation, stating that
an English learner who has a disability that prevents the student from
being assessed in one or more domains of language on the ELP assessment
should be excluded from all calculations.
Discussion: We appreciate the support we received on this
provision, as well as the nuanced issues raised by some of the
commenters. We agree with the commenter indicating that this rule
should be an exception and only serve the small fraction of English
learners with disabilities who, because of an identified disability,
cannot be assessed in one of the four domains of language. For these
reasons, we are clarifying the final regulations to specify that this
exception applies only in the case of an English learner with a
disability that precludes assessment in one or more domains of the ELP
assessment such that there are no appropriate accommodations for the
affected domain(s), as determined on an individualized basis by the
student's IEP team, 504 team, or individual or team designated by the
LEA to make these decisions under Title II of the ADA. We disagree with
the commenter who asserted that such students' scores should be
completely excluded from accountability systems; the exclusion of
student scores is not only contrary to the statute but can result in a
lack of proper attention and services for such students.
We appreciate the concerns of the commenter who requested that we
add examples of particular accommodations and discuss issues of
validity and reliability with regard to composite scores that do not
include performance in all four domains. While we believe this
information is critical to the field, we believe that the recommended
clarifications would be best addressed through non-regulatory guidance.
Further, we note that specific issues regarding the statewide ELP
assessment, including validity, reliability, and accommodations, are
outside the scope of these regulations, as they pertain to regulations
on State assessments under part A of title I.
Changes: We have revised Sec. 200.16(c)(2) to clarify that--in the
case of an English learner with a disability that precludes assessment
in one or more domains of the ELP assessment such that there are no
appropriate accommodations for the affected domains, as determined on
an individualized basis by the student's IEP team, 504 team, or
individual or team designated by the LEA to make these decisions under
Title II of the ADA--States must, for purposes of measuring performance
against the Progress in Achieving English Language Proficiency
indicator, include such a student's performance on the ELP assessment
based on the remaining domains in which it is possible to assess the
student.
Recently Arrived English Learners
Comments: A number of commenters expressed support for proposed
Sec. 200.16(b)(3)-(4) with respect to including the results from
recently-arrived English learners in accountability determinations. Of
those, two commenters suggested extending the flexibility for inclusion
of such results to three to five years.
Discussion: We appreciate the support for the regulations on
recently arrived English learners. The timeframes in proposed Sec.
200.16(b)(3) are the same as the requirements in section 1111(b)(3)(A)
of the ESEA, as amended by the ESSA.
Changes: None.
Comments: Several commenters expressed concern that the requirement
in proposed Sec. 200.16(b)(3)(ii)(C), regarding growth on content
assessments, effectively requires any State that decides to avail
itself of that option for including recently arrived English learners
in accountability to use a growth measure in its Academic Progress
indicator.
Discussion: The requirements in section 1111(b)(3)(A) of the ESEA,
as amended by the ESSA, permit the use of growth on content assessments
in lieu of proficiency for accountability purposes in limited instances
for recently arrived English learners. The commenters are correct that,
under the second statutory option (section 1111(b)(3)(A)(ii)(II)(bb),
and reflected in proposed Sec. 200.16(b)(3)(ii)), in which recently
arrived English learners are assessed in their first year on the
reading/language arts as well as the math assessments, States are
required to include a measure of student growth in the accountability
system. Under the proposed regulations, a State would have been
required to include the performance of such recently arrived English
learners in their second year of enrollment in U.S. schools on those
content assessments in a growth measure in the Academic Achievement
indicator for high schools, and in the Academic Progress indicator for
non-high schools. We recognize that not all States may decide to use a
measure of growth in the Academic Progress indicator, and are revising
Sec. 200.16(c)(3)(ii)(C) to clarify that a State may include a measure
of growth in the second year of enrollment for such an English learner
in either the Academic Achievement or Academic Progress indicator to
provide greater flexibility to States with regard to including growth
for recently arrived English learners in elementary and middle schools.
Changes: We have revised Sec. 200.16(c)(3)(ii)(C) to allow growth
for recently arrived English learners in their second year of
enrollment in elementary and middle schools to be included in either
the Academic Progress indicator or the Academic Achievement indicator.
Comments: None.
Discussion: In reviewing the proposed regulations, we believe it is
necessary to clarify the uniform statewide procedure for determining
which assessment and accountability exception, if any, applies to an
individual recently arrived English learner, for States that choose not
to apply the same exception to all recently arrived English learners in
the State. The proposed regulations specified that the statewide
procedure must take into consideration a student's ELP level,
consistent with the requirements for setting long-term goals and
measurements of interim progress for English learners in Sec. 200.13,
but did not similarly specify the point in time in which a recently
arrived English learner's ELP level should be examined. As the intent
was to consider such a student's initial level of ELP--and make a
decision about which exception would apply for each of the following
two to three years--we are revising the regulations accordingly. This
approach is necessary, as a State must determine
[[Page 86115]]
which exception is appropriate during the student's first year of
enrollment in the U.S. schools in order to comply with the requirements
of that exception in each succeeding year.
Changes: We have revised Sec. 200.16(c)(4)(i)(B) to clarify that,
for States that choose to use a uniform statewide procedure, a recently
arrived English learner's ELP level at the time of the student's
identification as an English learner must be taken into account in
determining whether the exception applies.
Section 200.17 Disaggregation of Data
N-Sizes for Accountability and Reporting
Comments: We received a number of comments regarding a State's
determination of the minimum number of students sufficient to yield
statistical and reliable information and protect student privacy,
commonly known as the ``minimum n-size.'' A number of commenters
supported the proposed requirements in Sec. 200.17(a) for information
that States must submit in their State plans related to n-size,
including that States submit a justification and receive approval from
the Department in order to use an n-size that exceeds 30 students for
accountability purposes. Multiple commenters stated that the proposal
preserves State flexibility and balances the need for n-sizes to be
small enough to be inclusive of all required student subgroups in the
statute, but also large enough to ensure statistical reliability and to
protect students' privacy. In particular, some commenters noted that
requiring States to justify n-sizes above 30 will help ensure that
historically disadvantaged student subgroups are not overlooked nor
absent from the accountability system.
Discussion: We appreciate the support of these commenters, and
agree that the requirements in Sec. 200.17(a) are necessary and
appropriate to ensure that States establish n-sizes that not only help
produce valid and reliable accountability determinations, but also
ensure all students and subgroups of students are meaningfully included
in annual meaningful differentiation and identification of schools and
in annual report cards. These provisions provide sufficient flexibility
for States to determine their own n-sizes for accountability and
reporting while protecting equity and the focus on educational
opportunity and excellence for all students.
Changes: None.
Comments: A number of commenters disagreed with the proposed
requirement for a justification to exceed a minimum n-size of 30
students and recommended eliminating this requirement in the final
regulation. These commenters recommended that instead States be allowed
to select, in consultation with stakeholders, an n-size they believe is
appropriate without any further parameters, or that the Department move
these provisions to non-regulatory guidance. Some of these commenters
also objected that a requirement for States to justify their n-size
exceeds the Department's statutory authority or violates the
prohibition in section 1111(e)(1)(B)(iii)(VIII) of the ESEA, as amended
by the ESSA, related to prescribing the minimum number of students a
State uses for purposes of accountability and reporting.
Discussion: As discussed previously, we appreciate the support of
many commenters for the requirement that States submit a justification
for a minimum n-size exceeding 30 students for review and approval by
the Department as part of the State plan process. We agree that this
approach strikes the right balance toward ensuring each State's n-size
meets all statutory requirements. We also believe this requirement is
consistent with both the Department's rulemaking authority under GEPA,
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (as
previously described in the discussion of Cross-Cutting Issues), and
the specific provisions of the ESEA, as amended by the ESSA, and that
it does not violate section 1111(e) of the ESEA, as amended by the
ESSA. More specifically, the requirement in Sec. 200.17(a)(2)(iii) and
(3)(v) is not inconsistent with section 1111(e)(1)(B)(iii)(VIII) of the
ESEA, as amended by the ESSA, because it does not prescribe a specific
minimum n-size. Rather, the regulations establish a baseline
expectation that a State will select an n-size of 30 or less, or
otherwise submit a justification for a higher number. A State that
selects an n-size that is lower than 30 has significant discretion to
select any n-size below 30, so long as it meets the requirements of
section 1111(c)(3) of the ESEA and Sec. 200.17(a)(1)-(2). Further, a
State retains the flexibility to establish an n-size that is higher
than 30, provided it demonstrates how the higher number promotes sound,
reliable accountability decisions consistent with the statutory
requirements for n-size and the law's focus on accountability for
subgroup performance at the school level. The requirements in
Sec. Sec. 200.17(a)(2)(iii) and (3)(v) fall squarely within the scope
of the title I, part A of the statute and are necessary to reasonably
ensure that States are able to meet the requirements of section
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, which requires
a State to establish a system of meaningful differentiation that
includes differentiation of any school in which any subgroup of
students is consistently underperforming, while also meeting the
requirements of section 1111(c)(3) of the ESEA.
The State-determined n-size must meet several requirements in the
statute, including to support valid and reliable accountability
determinations and data reporting; to protect student privacy; and to
support the inclusion of each subgroup of students for purposes of
measuring student progress against the State's long-term goals and
indicators, annually meaningfully differentiating schools based on
those indicators, identifying schools with low-performing and
consistently underperforming subgroups, and providing support for
improvement in those schools. We agree with commenters that stakeholder
engagement is critically important in selecting an n-size that works in
the context of each State; in fact, under the statute and Sec. Sec.
299.13 and 299.15, States are required to conduct meaningful and timely
stakeholder engagement to establish their accountability systems,
including their n-size. That said, we disagree that additional
parameters for a State to consider in setting its n-size are
unnecessary or best discussed in non-regulatory guidance only. Setting
an n-size that is statistically sound and inclusive of subgroups has
been a challenge for States, and past approaches have, at times,
prioritized setting a conservative n-size (e.g., 100 students) at the
expense of providing meaningful subgroup accountability. Current
regulations in Sec. 200.7, which were updated in 2008, include many
similar parameters as those in proposed Sec. 200.17(a). These
regulations were promulgated to provide greater transparency to the
public in how n-sizes are established and establish a reasonable
approach for States to balance statistical reliability and privacy with
the statutory emphasis on disaggregation and subgroup accountability,
consistent with the NCLB's purpose to close achievement gaps.\6\ These
reasons remain applicable under the ESEA, as amended by the ESSA, given
that section 1111(c)(3) requires all States to select an n-size that is
statistically sound and protects
[[Page 86116]]
student privacy for all purposes under title I, including subgroup
accountability and reporting. Further, since the 2008 regulations took
effect, numerous States have lowered their n-sizes, including sixteen
in the last two years.\7\ We strongly believe that creating a process
in the State plan for stakeholders to meaningfully engage in
establishing a State's n-size, including by requiring a State selecting
an n-size larger than 30 students to provide transparent data and clear
information on the rationale and impact of its selected n-size, is
essential to maintain this progress in using lower n-sizes and to
support a better, and more appropriate balance between validity,
reliability, student privacy, and maximum inclusion of subgroups of
students.
---------------------------------------------------------------------------
\6\ See: 73 FR 64335, 64441-64442 (October 29, 2008).
\7\ Cardichon, J. (2016). ``Ensuring equity in ESSA: The role of
n-size in subgroup accountability.'' Alliance for Excellence in
Education. http://all4ed.org/reports-factsheets/n-size/.
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters supported proposed Sec. 200.17(a), under
which a State must justify in its State plan setting any minimum n-size
above 30 students, but recommended that the threshold above which a
justification for the State's proposed n-size is required be lower than
30 students. The majority of those commenters recommended that any
proposed n-size above 10 students for accountability and reporting
purposes (as the proposed regulations would permit a State to select a
lower n-size for reporting) require a justification in the State plan;
a few commenters recommended that the Department require a
justification for any proposed n-size above 20. Some commenters who
supported a lower number were concerned that a threshold of 30 students
would provide an incentive for States that are currently using a lower
n-size to raise their n-size to 30.
In support of their suggestion that we lower to 10 the threshold
above which a State must provide further justification for its proposed
n-size, some commenters cited research, including a 2016 Alliance for
Excellent Education \8\ report and a 2010 IES report \9\ concluding
that data based on n-sizes of 5 or 10 students may be reported reliably
without revealing personally identifying information. To show how a
lower number would increase subgroup accountability, some commenters
provided evidence from select States on the number and percentage of
students that were ``added'' to the accountability system or the number
and percentage of schools that were newly held accountable for subgroup
performance when that State lowered its n-size. Other commenters cited
a general concern about including particular subgroups, such as
children with disabilities, English learners, or Native American
students, in the accountability system or ensuring particular schools,
like rural schools, were held accountable for subgroup performance.
Others who recommended a threshold of 10 pointed to the Department's
proposed rule, Equity in IDEA, which suggested a minimum n-size of not
more than 10 as the standard methodology to determine whether there is
significant disproportionality in each State and its LEAs, based on
race or ethnicity due to overrepresentation in the identification,
placement, and discipline of children with disabilities. Another
commenter believed that lowering the threshold to 10 would improve the
ability to make cross-State comparisons based on educational data.
---------------------------------------------------------------------------
\8\ Cardichon, J. (2016). ``Ensuring equity in ESSA: The role of
n-size in subgroup accountability.'' Alliance for Excellence in
Education. http://all4ed.org/reports-factsheets/n-size/.
\9\ U.S. Department of Education. Institute of Education
Sciences, National Center for Education Statistics (2010).
``Statistical Methods for Protecting Personally Identifiable
Information in Aggregate Reporting.'' Brief 3, NCES 2011-603.
https://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2011603.
---------------------------------------------------------------------------
Finally, a few commenters challenged the research basis for the
proposal of 30 as the n-size above which a justification is required--
but instead of recommending a lower threshold, the commenters either
requested that the final regulations provide States greater flexibility
in selecting an n-size, or require States to describe how their n-size
minimizes error and provides for adequate validity and reliability of
school-level reporting and accountability decisions generally.
Discussion: We appreciate the support of commenters for our
approach to State-determined minimum n-sizes, including requiring a
justification from States for proposing to use an n-size above a
certain threshold, and agree with the goal of maximizing subgroup
accountability; we strongly encourage States to use the lowest possible
n-size that will produce valid and statistically sound data, protect
student privacy, and meaningfully include all subgroups of students--
which may well be lower than 30 students in many States. However, we do
not believe that the current state of practice or current research on
minimum n-sizes supports requiring States to submit a justification of
an n-size below 30 students for accountability purposes, although this
could change in the future, as additional research is produced and as
evidence from State implementation of disaggregated accountability and
reporting under the ESEA is gathered. We also disagree with commenters
that research suggests 30 is an inappropriate threshold altogether and
preferred for States to provide a general description of how their n-
size meets the statutory requirements for validity and reliability.
The Department believes that requiring additional information for
an n-size above 30 students is warranted, because, based on basic
statistics and research analyses, an n-size that exceeds 30 is less
likely to meet the requirements in the statute, particularly those
requiring States to adopt school accountability systems that reflect
the performance of individual subgroups of students, and thus, requires
justification as part of the State plan review and approval process.
Validity and reliability are not the only statutory and regulatory
requirements for a State in selecting its n-size; these criteria must
be balanced with the requirement for an n-size that is small enough to
provide for the inclusion of each student subgroup in school-level
accountability and reporting. Not only is this critical to maintain
educational equity and protect historically underserved populations of
students, but it is also a clear purpose of accountability systems
under section 1111(c) of the ESEA, as amended by the ESSA, as
disaggregation is required when measuring student progress against the
State's long-term goals and indicators and notifying schools with a
consistently underperforming subgroup of students for targeted support
and improvement. Thus, it is equally important for States to justify
how their n-size preserves accountability for subgroups as it is for
States to demonstrate validity and reliability as a result of their
chosen n-size. Research demonstrates how n-sizes larger than 30 require
further justification to show that subgroups of students will be
included. For example, under NCLB, 79 percent of students with
disabilities were included in the accountability systems of States with
an n-size of 30, but only 32 percent of students with disabilities were
included in States with an n-size of 40.\10\ Similarly, a more recent
analysis
[[Page 86117]]
of California's CORE school districts,\11\ found that only 37 percent
of African American students' math scores are reported at the school-
level with an n-size of 100 students, but 88 percent of such students
were included using an n-size of 20 students. For students with
disabilities, the difference was larger: 25 percent of students with
disabilities were reported at the school-level under an n-size of 100,
while 92 percent were included with an n-size of 20. Other reports have
demonstrated that an n-size of 60 can potentially exclude all students
with disabilities from a State's accountability system.\12\
---------------------------------------------------------------------------
\10\ Harr-Robins, J., Song, M., Hurlburt, S., Pruce, C.,
Danielson, L., & Garet, M. (2013). ``The inclusion of students with
disabilities in school accountability systems: An update (NCEE 2013-
4017).'' Washington, DC: National Center for Education Evaluation
and Regional Assistance, Institute of Education Sciences, U.S.
Department of Education, pp. 24-26.
\11\ Hough, H., & Witte, J. (2016). ``Making students visible:
Comparing different student subgroup sizes for accountability.''
CORE-PACE Research Partnership, Policy Memo, 16-2.
\12\ Simpson, M. A., Gong, B., & Marion, S. (2006). ``Effect of
minimum cell sizes and confidence interval sizes for special
education subgroups on school-level AYP determinations.'' Council of
Chief State School Officers; Synthesis Report 61. National Center on
Educational Outcomes, University of Minnesota.
---------------------------------------------------------------------------
In addition, while there are many desirable and stable statistical
properties that are attributable to an n-size of 30, because that is
the sample size at which a distribution approaches normality (an
assumption for strong validity for most statistical tests of inference
based on the Central Limit Theorem), the subgroups of students that are
included for school accountability and reporting purposes are not,
technically, a sample. Because a State is required to measure the
performance of all students and all students in each subgroup of
students in calculating the accountability indicators for a given
school, the data used for accountability are representatives of a
census, or universe, of the entire school population for any given year
on any given measure. While collecting data for an entire population
does not mitigate all potential sources of error in the data, it does
mitigate one very large one: Sampling error because the data are not
representative of the school as a whole.
Accordingly, the Department does not dispute that an n-size lower
than 30 students, such as 10 or 20, may also be valid, reliable, and
maximally inclusive of subgroups--especially for reporting purposes--
which is why we believe further justification in a State selecting such
an n-size is unnecessary. In specifying 30 as the threshold, we were
not only considering the current state of research, but also current
practice; only eight States use an n-size for accountability greater
than 30 students,\13\ so we believe a threshold of 30 will not add
burden to the State plan for most States and recognizes the significant
progress many States have made in recent years to lower their n-sizes
below 30 students.\14\ We also do not believe that establishing a
threshold of 30 students will encourage States currently using a lower
n-size to move to a higher number; such States have established lower
n-sizes in response to their own needs and circumstances, and not
because of any current statutory or regulatory provision, and thus
would be unlikely to revisit earlier decisions in response to a
regulation that would not require such action. In sum, after examining
these trends in practice and research, we believe a lower threshold
would mostly result in greater burden without the desired outcome of
commenters (lower n-sizes), because, based on the current the state of
knowledge, many States could likely provide a solid justification for
selecting an n-size between 10 and 30 students in their State plans.
---------------------------------------------------------------------------
\13\ Cardichon, J. (2016). ``Ensuring equity in ESSA: the role
of n-size in subgroup accountability.'' Alliance for Excellence in
Education. http://all4ed.org/reports-factsheets/n-size/.
\14\ In the last two years alone, sixteen States and the
California CORE districts lowered their n-size for either reporting
or accountability purposes: Alaska from 26 to 5; Arizona from 40 to
30; Connecticut from 40 to 20. California's CORE districts from 100
to 20; Florida from 30 to 10; Georgia from 30 to 15; Idaho from 34
to 25; Illinois from 45 to 10; Maine from 20 to 10. Minnesota from
40 to 10 for reporting, and to 20 for accountability; Mississippi
from 30 to 10; Nevada from 25 to 10; North Carolina from 40 to 30;
Pennsylvania from 30 to 11; Rhode Island from 45 to 20; South
Carolina from 40 to 30; and Texas from 50 to 25.
---------------------------------------------------------------------------
We also note that Sec. 200.17(a)(2)(iv) would permit States to use
a lower n-size, such as 10, for reporting, while using a different n-
size for accountability. Further, Sec. 200.20(a) permits a State to
average school-level data across grades or over time for particular
accountability purposes, including calculating each indicator, so that
a State choosing to take advantage of this flexibility may sum the
number of students with valid data in a particular subgroup and
increase the likelihood that a school meets the minimum n-size (see
final Sec. 200.20(a)(1)(A)). For example, the indicators for a school
that served a total of ten English learners for each of the last three
years will, if an SEA chooses to combine results over three years, be
calculated as a combined average of its data from all grades and years;
the LEA would have 30 students in this subgroup.
This decision to maintain a threshold of 30, above which a State
must justify its proposed n-size, is independent of the different
analysis and proposal accompanying the Equity in IDEA proposed
regulations, which was based on the context and experience of the IDEA
and not the statewide accountability systems required by the ESEA.
Finally, as the ESEA provides States with discretion to develop their
own challenging academic standards and aligned assessments, ambitious
long-term goals and measurements of interim progress, and unique
measures and indicators for differentiation of schools, it is not clear
that simply setting a lower n-size would support meaningful cross-State
comparisons, since even if there was additional information available
at a school-level for particular subgroups, such comparisons would be
meaningless across States as the underlying measures are, more often
than not, unique to each State.
Changes: None.
Comments: A few commenters recommended that the Department require
all States, not only those that propose n-sizes greater than 30
students, to submit data on the number and percentage of schools that
would not be held accountable for the performance of particular
subgroups of students based on the selected n-size.
Discussion: While the final regulations require States that request
to use an n-size greater than 30 students to submit data on the number
and percentage of schools that would not be held accountable for the
results of students in each subgroup described in Sec. 200.16(a)(2),
requiring all States to submit this information would unnecessarily
increase burden on States that select an n-size that is likely to meet
the law's requirements for a threshold that is valid, reliable, and
maximally inclusive of all students and each subgroup of students, as
discussed previously. However, in light of these comments on the
importance of comparative data on school-level accountability for
subgroups, we are revising Sec. 200.17(a)(3)(v), to provide that a
State's justification of an n-size above 30 includes both data on the
number and percentage of schools in the State that would not be held
accountable for the results of subgroups described in Sec.
200.16(a)(2) under its proposed n-size as well as comparative data on
the number of schools that would not be held accountable for the
performance of those subgroups with an n-size that is 30.
Changes: We have revised Sec. 200.17(a)(3)(v) to clarify that a
State's justification for an n-size above 30 students includes data on
the number
[[Page 86118]]
and percentage of schools that would not be held accountable for
results from each subgroup based on the State's proposed n-size,
compared to data on the number and percentage of schools in the State
that would not be held accountable for each subgroup if the State had
selected an n-size of 30 students.
Comments: Some commenters recommended that all States be required
to submit data on the number and percentage of all students and
subgroups described in Sec. 200.16(a)(2) for whose results a school
would not be held accountable for each indicator in the State
accountability system. In addition, a few of these commenters
recommended making this information available on SEA and LEA report
cards in addition to the State plan.
Discussion: Proposed Sec. 200.17(a)(3)(iv) requires all States in
their State plans to submit information regarding the number and
percentage of all students and students in each subgroup of students
for whose results a school would not be held accountable in the State
accountability system for annual meaningful differentiation under Sec.
200.18. As annual meaningful differentiation of schools is based on all
of the State's indicators, we believe that it would be unnecessarily
burdensome for all States to provide an indicator-by-indicator analysis
on the number and percentage of students in each subgroup that are
included in the accountability system, or for States to provide this
information in two places, the State plan and their report cards. We
encourage States, as part of the process of meaningful and timely
consultation in developing new accountability systems as described in
Sec. Sec. 299.13 and 299.15, to conduct any analyses, in consultation
with stakeholders and technical experts, that they believe will be
useful in setting an n-size that is valid, reliable, consistent with
protecting student privacy, and maximally inclusive of all students and
each subgroup of students.\15\ We also note that States may provide
additional analyses or data on their selected n-size in their State
plans, or make such additional analyses and data public, if they so
choose.
---------------------------------------------------------------------------
\15\ See, for example: https://education.ohio.gov/getattachment/Topics/Every-Student-Succeeds-Act-ESSA/Nsize-Topic-Discussion-Guide.pdf.aspx.
---------------------------------------------------------------------------
Changes: None.
Comments: A few commenters recommended prohibiting the use of an n-
size that exceeds 30 students.
Discussion: We believe that restricting n-sizes above 30 students
would be inconsistent with section 1111(e)(1)(B)(iii)(VIII) of the
ESEA, which prohibits the Department from prescribing a State's n-size
so long as the State-determined number meets all requirements of
section 1111(c)(3).
Changes: None.
Comments: A few commenters recommended prohibiting States from
using n-sizes over 10 students for reporting purposes or requiring
States to use a lower n-size for reporting than for accountability
purposes.
Discussion: The Department agrees that States should use an n-size
that is no larger than necessary to protect student privacy for
reporting purposes, especially given the importance of providing
transparent and clear information on State and LEA report cards that
includes disaggregated information by each subgroup. However, we
decline to establish a specific threshold for reporting purposes,
because States have demonstrated a commitment to using a low n-size
(e.g., 10 or lower) for reporting purposes without regulations
requiring them to do so. In addition, we believe that restricting n-
sizes for reporting purposes above 10 students would be inconsistent
with section 1111(e)(1)(B)(iii)(VIII) of the ESEA, which prohibits the
Department from prescribing a State's n-size so long as the State-
determined number meets all requirements of section 1111(c)(3). We also
disagree with the recommendation to require a lower n-size for
reporting, as this could require States that have set a similarly low
n-size (e.g., 10 students) for both purposes to increase their n-size
for accountability, and believe the decision to use a lower reporting
n-size is best left to States.
Changes: None.
Comments: Some commenters opposed the requirement in proposed Sec.
200.17(a)(2)(ii) that the n-size be the same for all accountability
purposes, including for each indicator and for calculating
participation rates on assessments, believing that the proposed
requirements are overly prescriptive and unnecessary to ensure States
comply with the law's requirements for establishing n-sizes. In
addition, one commenter disagreed with other provisions in proposed
Sec. 200.17(a)(2), including the requirement that the State-determined
n-size be the same for all students and for each subgroup of students
and the option of using a lower n-size for reporting purposes.
Discussion: We disagree with the commenters that the proposed
requirements in Sec. 200.17(a)(2) are unnecessary to ensure that
States set valid and reliable n-sizes consistent with the law's
requirements. First, the requirement in Sec. 200.17(a)(2)(i) for the
n-size established by each State to be the same for all students and
for each subgroup of students is statutory (section 1111(c)(3)(A)(i) of
the ESEA, as amended by the ESSA) whenever disaggregation is required
under part A of title I. Second, we believe it is critical for a State
to use the same n-size for all accountability purposes, including for
each indicator in the accountability system, as required under Sec.
200.17(a)(2)(ii), in order to ensure fairness and equity in
accountability decisions and the maximal inclusion of all students in
all indicators (with the exception of the Progress in Achieving English
Language Proficiency indicator, which applies only to English
learners). For example, allowing a State to set a higher n-size for a
School Quality or Student Success indicator would reduce the number of
schools held accountable for student performance on these new
indicators and undermine a key goal of the ESEA, as amended by the
ESSA, that school performance determinations be based on broader
multiple measures of student and school performance. Finally, as
discussed previously, we believe that allowing a lower n-size for
reporting is both reflective of current practice in numerous States,
encourages States to consider ways they can report results for as many
subgroups as possible, and consistent with the statutory requirements
related to minimum n-size.
Changes: None.
Comments: A few commenters objected to the Department's proposal
that a State explain how other components of its accountability system
interact with the State's n-size to affect the statistical reliability
and soundness of the State's accountability system and to ensure the
maximum inclusion of all students and each subgroup. They recommended
eliminating this requirement because they believe it exceeds the
Department's legal authority and unnecessarily increases burden on
States.
Discussion: We believe these requirements, which mirror similar
requirements in current regulations regarding a State's n-size used for
accountability, continue to be reasonably necessary to ensure that this
key aspect of a State's accountability system--its selected n-size for
accountability purposes--is consistent with one of the stated purposes
of title I of the ESEA, as amended by the ESSA: To close educational
achievement gaps. This purpose cannot be accomplished without subgroup
accountability and, thus, it is necessary that the regulations
emphasize how States can consider
[[Page 86119]]
ways to maximize inclusion of student subgroups comprehensively,
looking across the design of their accountability system. For example,
averaging school-level data across grades or years for calculating the
indicators, as permitted under Sec. 200.20(a), is one tool a State can
use to maximize the inclusion of subgroups, as States choosing to use
this procedure combine, for any measure in an indicator, the number of
students with valid data in the applicable subgroup across a whole
school, or the number of students in the subgroup with valid data over
up to three years. As a result, a school is much more likely to meet a
State's minimum n-size for a particular subgroup because it can sum the
amount of available data (across grades and across years) for the
subgroup on each indicator as described in Sec. 200.20(a)(1)(A).
Further, making this information available in the State plan is
necessary to reasonably ensure that the public will be able to consult
on the State's n-size (consistent with section 1111(c)(3)(A)(ii) of the
ESEA) and better understand how schools are being held accountable for
the performance of students, including each subgroup. Accordingly,
these requirements fall within the Department's rulemaking authority
under GEPA and the DEOA as well as under section 1601(a) of the ESEA,
as amended by the ESSA, and, as they are within the scope of section
1111(c) of the ESEA, as amended by the ESSA, they do not violate
section 1111(e) of the ESEA, as amended by the ESSA (see further
discussion under the heading Cross-Cutting Issues). Finally, because of
the importance of n-sizes for the validity, reliability, and
transparency of statewide accountability systems, the benefits of these
requirements outweigh the burden on States of complying with them.
Changes: None.
Comments: Some commenters recommended that LEAs be added to the
list of required stakeholders in section 1111(c)(3)(A)(ii) with whom
States must collaborate in determining their n-sizes.
Discussion: LEAs are one of the stakeholders States must consult in
the overall development of the State plan consistent with Sec. Sec.
299.13 and 299.15, which includes the State's accountability system and
determination of n-size as described in Sec. 299.17.
Changes: None.
Comments: One commenter questioned why the proposed regulations
request a justification from States that select an n-size above 30
students in Sec. 200.17, but permit a high school with fewer than 100
students that is identified for comprehensive support and improvement
due to low graduation rates to forego implementation of a comprehensive
support and improvement plan under Sec. 200.21.
Discussion: The State discretion for small high schools in Sec.
200.21(g) is a statutory requirement in section 1111(d)(1)(C)(ii) of
the ESEA, as amended by the ESSA, and is separate and unrelated to the
requirements in section 1111(c)(3)(A) of the ESEA for States to
establish an n-size for any purpose where disaggregated data are
required under part A of title I.
Changes: None.
Comments: One commenter requested that the Department issue non-
regulatory guidance in addition to Sec. 200.17 to better support
States in reporting information that can be disaggregated for the
maximum number of subgroups, particular if a school or LEA does not
meet the State's n-size.
Discussion: We appreciate the commenter's suggestion and agree that
these best practices would be best discussed in non-regulatory
guidance.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed regulations, the Department
believes it is necessary to clarify that if a State elects to use a
lower n-size for reporting purposes than it does for accountability
purposes, it must do so in a way that continues to meet the statutory
requirement under section 1111(b)(3)(A)(i) and Sec. 200.17(a)(2)(i)
for the State to use the same minimum number of students for all the
students group and for each subgroup of students for provisions under
title I that require disaggregation. The intent of this flexibility in
the proposed regulations was to permit a State, consistent with current
practice, to use an n-size for reporting purposes (e.g., 6 students)
that the State may feel is too low for accountability purposes but will
maximize transparency and the amount of publicly reported data on
subgroup performance--not to exempt the State from other critical
requirements under proposed Sec. 200.17. Because a consistent n-size
for all subgroups is a statutory requirement, we believe it is
important to reiterate that it applies to any n-size used for either
reporting or accountability under title I of the ESEA.
Changes: We have revised Sec. 200.17(a)(2)(iv) to clarify that a
State that elects to use a lower n-size for reporting purposes must
continue to meet the requirement to use the same n-size for the all
students group and for each subgroup of students for purposes of
reporting.
Personally Identifiable Information
Comments: Several commenters pointed out that a minimum n-size
lower than 30 students has the ability to adequately protect student
privacy, often citing a 2010 Institute of Education Sciences (IES)
report \16\ concluding that data based on n-sizes of 5 or 10 students
may be reported reliably without revealing personally identifying
information.
---------------------------------------------------------------------------
\16\ U.S. Department of Education. Institute of Education
Sciences, National Center for Education Statistics (2010).
``Statistical Methods for Protecting Personally Identifiable
Information in Aggregate Reporting.'' Brief 3, NCES 2011-603.
https://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2011603.
---------------------------------------------------------------------------
Discussion: While we recognize that suppression of data for small
subgroups of students is often necessary to protect the privacy of
individuals in those subgroups, we maintain that the specific n-size
adopted by States is only one component of a broader methodology for
protecting privacy in public reporting. In most cases, suppression of
data about small subgroups must be accompanied with the application of
additional statistical disclosure limitation methods (e.g.,
complementary suppression, blurring, top/bottom-coding) to effectively
protect student privacy. Selection of a specific n-size (e.g., 5
students versus 10 students) to protect student privacy is secondary to
the proper application of these additional methods.
In response to those that believe a lower threshold is appropriate,
because such a lower number (e.g., 10 students) is sufficient to
protect student privacy, the proposal that States justify and receive
approval to use an n-size exceeding 30 students is not driven solely by
privacy considerations. Privacy protections must also be considered
within the larger context of selecting an n-size that meets the
statutory requirements that all disaggregated data used for
accountability and reporting purposes be of sufficient size to yield
statistically sound information and be small enough to maximally
include all students and subgroups of students.
Changes: None.
Comments: Recognizing the complexity of protecting privacy in
public reporting, several commenters requested that the Department
provide guidance to States and LEAs on this issue.
Discussion: The Department previously released several technical
assistance resources on this subject through the Privacy Technical
Assistance Center (PTAC, available at http://ptac.ed.gov), and offers
further
[[Page 86120]]
guidance and targeted technical assistance on disclosure methods
through PTAC's Student Privacy Help Desk ([email protected]). The
Department also intends to release additional non-regulatory guidance
in the future on this subject to assist educational agencies and
institutions with their reporting requirements under the ESEA, as
amended by the ESSA.
Changes: None.
Comments: Several commenters questioned the Department's authority
to expand privacy protections under this section to anyone other than
students, as the Family Educational Rights and Privacy Act only
protects personally identifiable information from students' education
records and does not extend similar protections to school personnel.
Discussion: The provision in Sec. 200.17(b) merely reiterates
section 1111(i) of the ESEA, as amended by the ESSA, which prohibits
the reporting of disaggregated information if it would reveal
personally identifiable information about teachers, principals, or
other school leaders. As Sec. 200.17(b) reiterates this statutory
requirement, it is being issued consistent with the Department's
rulemaking authority under GEPA and the DEOA and under section 1601(a)
of the ESEA, as amended by the ESSA, as the regulation is necessary to
reasonably ensure compliance with section 1111(i) of the statute.
Changes: None.
Section 200.18 Annual Meaningful Differentiation of School Performance:
Performance Levels, Data Dashboards, Summative Determinations, and
Indicator Weighting
Summative Ratings
Comments: Many commenters supported the proposed regulations as
consistent with the law's requirement for all States to meaningfully
differentiate schools and identify schools for support and improvement,
including the lowest-performing five percent of title I schools, using
a methodology that is based on all of the indicators and affords
certain indicators ``much greater'' weight. These commenters further
noted that the statute, in effect, includes three summative rating
categories: The two categories of schools that must implement
improvement plans (i.e., comprehensive support and improvement and
targeted support and improvement schools), and a third category of
schools, those not identified for comprehensive or targeted support and
improvement.
Some commenters recommended that the Department clarify that a
State may use these classifications of schools in the statute (i.e.,
comprehensive support and improvement, targeted support and
improvement, not identified for support and improvement) to meet the
proposed requirement in Sec. 200.18 to give all schools a summative
rating from among at least three categories. These commenters
recommended conforming edits throughout the regulation, including in
proposed Sec. 200.19, to refer to a State's summative
``determination'' or ``classification,'' as an alternative to a
``rating.'' Further, they suggested we clarify that a State could use a
``dashboard'' approach to make those determinations, although a State
would also be permitted to create a separate and distinct methodology,
like a numerical index.
Alternatively, several other commenters stated that the requirement
for a summative rating was inconsistent with the statute, an overreach
of the Department's authority, and at odds with the law's intent to
provide more flexibility and create less burden for States with regard
to accountability. Some of these commenters also asserted that the
requirement for a summative rating violates section
1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA, which
provides that nothing in the ESEA, as amended by the ESSA, authorizes
or permits the Secretary to prescribe the specific methodology used by
States to meaningfully differentiate or identify schools under title I,
part A.
Discussion: We appreciate commenters' support and agree with those
who recommended clarifying that (1) the requirement for each State to
provide schools with a summative rating from among at least three
rating categories is consistent with the law's requirements for school
identification, and (2) a State may satisfy the summative rating
requirement by making these statutorily required identification
determinations its summative rating for each school, as opposed to
developing a separate system of ratings that uses different categories
of schools for annual meaningful differentiation. Given that these
determinations in the statute are one way a State may meet the
requirement to provide information on a school's overall level of
performance, we are revising the final regulation to clarify that the
system of annual meaningful differentiation must produce a single
summative ``determination'' for each school that ``meaningfully
differentiates'' between schools. Because the ESEA, as amended by the
ESSA, requires identification of three summative categories of schools
based on all indicators--comprehensive support and improvement,
targeted support and improvement, and schools that are not identified--
we are further renumbering and revising Sec. 200.18(a)(4) to note that
a State's summative determinations for each school may be those three
categories. We believe the final regulation, as with the proposed
regulation, promotes State flexibility in designing accountability
systems, so that multiple approaches may be used, with different
categories, such as A-F grades, numerical scores, accreditation
systems, or other school classifications. A State choosing to use one
of these approaches would still be required to identify comprehensive
support and improvement and targeted support and improvement schools as
required under the statute.
Given the clarification in Sec. 200.18(a)(4) that a State may meet
this requirement by identifying, at a minimum, the two statutorily
required categories of schools along with a third category of schools
that are not identified, we believe it is clear that this regulation
falls squarely within the Department's rulemaking authority under GEPA,
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and
within the scope of section 1111(c) of the ESEA, as amended by the
ESSA, consistent with section 1111(e) of the ESEA, as amended by the
ESSA (see further discussion of these authorities in the discussion of
Cross-Cutting Issues). Moreover, each State retains significant
discretion to design its methodology and determine how it will reach a
single summative determination for each school. For example, one State
could develop a two-dimensional matrix, with schools assigned an
overall performance category based on how they fare on each dimension,
while another State could design a numerical index that awards points
for each indicator, with an overall score driving the summative
determination, while yet another State could assign each school a
determination based on the number of indicators on which the school
performs at a particular level or another set of business rules. A
State also has discretion to assign a single grade or number or to
develop some other mechanism, including one based on a data
``dashboard,'' for reaching a single summative determination--
categories of schools like ``priority'' and ``focus'' schools that
States have used under ESEA flexibility, for example, would
[[Page 86121]]
also be permitted.\17\ Given the broad flexibility available to a State
for meeting this requirement, Sec. 200.18(a)(4), as renumbered, is not
inconsistent with section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended
by the ESSA, because it does not prescribe a particular methodology
that a State must use to annually differentiate schools.
---------------------------------------------------------------------------
\17\ ESEA Flexibility refers to the set of waivers from certain
provisions of the ESEA, as amended by the NCLB, that the Department
offered to States from the 2011-2012 through 2015-2016 school years.
Given the overdue reauthorization of the ESEA, as amended by the
NCLB, President Obama announced in September 2011 that the
Department would grant these waivers to qualified States--those
adopting college- and career-ready expectations for all students;
creating differentiated accountability systems that target the
lowest-performing schools, schools with the largest achievement
gaps, and other schools that are not meeting targets for at-risk
students; and developing and implementing teacher and principal
evaluation and support systems that take into account student
growth, among multiple measures, and are used to help teachers and
principals improve their practices. In total, 43 States, the
District of Columbia, and Puerto Rico were awarded ESEA Flexibility.
For more information, see: http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html.
---------------------------------------------------------------------------
Changes: We have renumbered and revised Sec. 200.18(a)(4) to
clarify that a State must provide each school, as part of its system of
meaningful differentiation, a single summative ``determination,'' which
may either be (1) a unique determination, distinct from the categories
of schools described in Sec. 200.19, or (2) a determination that
includes the two categories of schools that are required to be
identified in Sec. 200.19 (i.e., schools identified for comprehensive
support and improvement and schools identified for targeted support and
improvement) and those that are not identified. We have also made
conforming edits throughout Sec. 200.18 and other sections of the
final regulations that reference school summative determinations. In
addition, we have clarified that the summative determination must
``meaningfully differentiate'' between schools.
Comments: We received a number of comments supporting the
requirement in proposed Sec. 200.18(b)(4) for a State's system of
annual meaningful differentiation to result in a single rating, from
among at least three rating categories, to describe a school's
summative performance across indicators because it would increase
transparency for parents and stakeholders by communicating complex data
and information on school quality, across a number of metrics, through
a single overall rating. These commenters generally expressed concerns
that other approaches absent a summative rating, such as a data
``dashboard,'' would make it difficult for parents to understand the
overall performance of their child's school, particularly to determine
how the results from the dashboard led to the school's identification
for comprehensive or targeted support and improvement. Other commenters
noted that summative ratings are widely used in other sectors precisely
because they communicate complex information succinctly and effectively
in a manner that empowers stakeholders and guides decision-making; this
view is consistent with that of another commenter who cited research
that suggests parents prefer summative ratings like A-F grades.\18\
---------------------------------------------------------------------------
\18\ See: http://mclaughlinonline.com/pols/wp-content/uploads/2014/05/NATL-CSS-X-TABS-PRIMARY-4-18-14.pdf.
---------------------------------------------------------------------------
Many commenters noted that a summative rating and detailed
indicator-level information in a ``dashboard'' are not mutually
exclusive, and voiced support for a summative rating requirement that,
as provided for in the proposed regulations, also requires performance
on each indicator to be reported, so that parents and the public have
information on overall school quality in the summative rating--which
would drive identification of schools--alongside more detailed
information breaking down performance on each indicator--which would
drive continuous improvement. A number of commenters also cited the
benefits of summative ratings for school improvement efforts, asserting
that such ratings support meaningful differentiation of schools,
promote successful interventions by helping direct resources to schools
that are most in need of support, and, as suggested by research,
motivate and are associated with successful efforts to improve and
achieve a higher rating.\19\
---------------------------------------------------------------------------
\19\ See, for example, Dee, Thomas S., & Jacob, B. (May 2011).
``The impact of No Child Left Behind on student achievement.''
Journal of Policy Analysis and Management, 30(3), 418-446; Carnoy,
Martin, & Loeb, S. (2002). ``Does external accountability affect
student outcomes? A cross-state analysis.'' Educational Evaluation
and Policy Analysis, 24(4), 305-31; Ahn, T., & Vigdor, J.L.
(September 2014). ``The impact of No Child Left Behind's
accountability sanctions on school performance: Regression
discontinuity evidence from North Carolina.'' NBER Working Paper No.
w20511; Hanushek, Eric A., & Raymond, M.E. (2005). ``Does school
accountability lead to improved student performance?'' Journal of
Policy Analysis and Management, 24(2), 297-327; Winters, Marcus A.
(2016). ``Grading Schools Promotes Accountability and Improvement:
Evidence from New York City, 2013-2015.'' Manhattan Institute;
Burgess, Simon, Wilson, D., and Worth J. (2013); and ``A natural
experiment in school accountability: The impact of school
performance information on pupil progress.'' Journal of Public
Economics, 106(C), 57-67.
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However, numerous other commenters suggested removing the
requirement for a single rating, because they believe it undermines the
value and transparency of an accountability system based on multiple
measures--including the addition of new indicators under the ESEA, as
amended by the ESSA--by reducing school performance, and any subsequent
improvement efforts, to a single label. The commenters asserted parents
and educators alike would find data on individual indicators more
useful and straightforward than a single rating, particularly when
designing improvement strategies targeted to a school's needs. Other
commenters suggested that requiring a summative rating for each school
would result in one-size-fits-all accountability systems that
discourage innovative accountability approaches, such as data
``dashboards,'' and demoralize educators by promoting punitive
accountability systems that are focused on ranking schools against each
other, which some linked with increased staff turnover. Many of these
commenters associated a summative rating with a requirement to assign
all schools an A-F letter grade or a single score, and noted their
objections to such methodologies. One commenter requested the
Department allow States to either award schools with a single, overall
summative determination, or multiple determinations (i.e., one for each
indicator), believing an approach that allowed for ``determinations''
instead of ratings would provide greater flexibility for States to
choose how they communicate areas in need of improvement in a school.
Finally, a number of commenters believed the requirement for a
single summative rating would create arbitrary, invalid, and unfair
distinctions among schools or objected to such a requirement as
inconsistent with research on school performance and improvement.\20\
---------------------------------------------------------------------------
\20\ See, for example, Lipnevich, A.A., and Smith, J.K. (June
2008). ``Response to assessment feedback: The effects of grades,
praise, and source of information.'' Princeton, NJ: ETS; National
Research Council. Incentives and Test-Based Accountability in
Education. Washington, DC: The National Academies Press, 2011.
doi:10.17226/12521; and the Oklahoma Center for Education Policy and
the Center for Educational Research and Evaluation. (January 2013).
``An Examination of the Oklahoma State Department of Education's A-F
Report Card.''
---------------------------------------------------------------------------
Discussion: We appreciate the strong support from many commenters
for the summative rating requirement we proposed as part of each
State's system of annual meaningful differentiation of schools. We also
acknowledge the strong objections raised by many other
[[Page 86122]]
commenters. However, we believe some of the concerns expressed by
commenters may be rooted in misconceptions about the requirement, as
proposed, which we have clarified in these final regulations, as
previously described.
We agree that the accountability requirements in the ESEA, as
amended by the ESSA, move away from a one-size-fits-all approach by
requiring multiple indicators of school success, beyond test scores and
graduation rates, to play a factor in accountability decisions.
However, we disagree that a summative determination will undermine
these positive steps, diminish the ability of States to develop
innovative models, and lead to a narrow focus on ranking schools--or on
test scores or overall school grades--at the expense of other
indicators. Under the regulations, States can design a number of
approaches to produce an overall determination, based on all
indicators, for each school--including an approach that utilizes data
``dashboards,'' A-F school grades, a two-dimensional matrix based on
the accountability indicators, or other creative mechanisms to
communicate differences in overall school quality to parents and the
public. These approaches must also be developed through meaningful and
timely stakeholder engagement, including parents and educators, as
described in Sec. Sec. 299.13 and 299.15.
Moreover, we believe the requirement for a summative determination
is most consistent with research on what makes an effective
accountability and improvement system. For example, in addition to
research cited in the NPRM, additional studies have shown the positive
benefits of providing schools with a summative determination on student
academic achievement.\21\
---------------------------------------------------------------------------
\21\ See, for example, Winters, Marcus A. (2016). ``Grading
Schools Promotes Accountability and Improvement: Evidence from New
York City, 2013-2015.'' Manhattan Institute; Rockoff, Jonah and
Turner, Lesley J. (2010). ``Short-Run Impacts of Accountability on
School Quality.'' American Economic Journal: Economic Policy, 2(4):
119-47; Winters, M.A., and Cowen, J.M. (2012). Grading New York
accountability and student proficiency in America's largest school
district. Educational Evaluation and Policy Analysis, 34(3), 313-
327; Rouse, C.E., Hannaway, J., Goldhaber D., and Figlio D. (2013).
``Feeling the Florida Heat? How Low-Performing Schools Respond to
Voucher and Accountability Pressure.'' American Economic Journal:
Economic Policy, 5(2): 251-81; Figlio, David N. and Rouse, Cecilia
Elena. (2006). ``Do accountability and voucher threats improve low-
performing schools?'' Journal of Public Economics, 90(1-2):239-255;
and Chiang, Hanley. (2009). ``How accountability pressure on failing
schools affects student achievement.'' Journal of Public Economics,
93(9-10):1045-1057.
---------------------------------------------------------------------------
We agree with commenters that ensuring transparent, clear
information on school quality for parents, educators, and the public is
an essential purpose of accountability for schools under the ESEA, an
opinion shared by those commenting in support of and opposition to the
proposed requirement for summative ratings. Further, we agree that the
increased number of required accountability indicators under the ESEA,
as amended by the ESSA, provides a valuable opportunity for States to
provide a more nuanced picture of school performance that includes both
academic and non-academic factors. This is why our regulations would
require both a summative determination and information on each
indicator, which must be reported separately as described in the
statute and in Sec. Sec. 200.30 through 200.33 and which could be
presented as part of a data ``dashboard.'' In this way, parents,
educators, and the public have a wealth of school-level information,
including information disaggregated by subgroups, at their disposal--
information that will be critical in supporting effective school
improvement. Given that many commenters did not recognize that a data
``dashboard'' or other mechanism for indicator-level reporting and a
summative determination were both a part of State systems of annual
meaningful differentiation under Sec. 200.18, we are revising the name
of the section in the final regulations to provide greater clarity and
reflect all of the components that are included. Section 200.18,
``Annual Meaningful Differentiation of School Performance: Performance
Levels, Data Dashboards, Summative Determinations, and Indicator
Weighting'' reflects our strong belief that requiring States to report
information on each school's performance on the indicators separately
and report a comprehensive determination for each school is both
effective and reasonably necessary, consistent with the requirement for
robust statewide accountability systems in the ESEA, as amended by the
ESSA, to provide useful, comparable, and clear information to parents,
teachers, and other stakeholders about how schools are performing. In
addition, we are revising Sec. 200.18(a)(4) to emphasize the
importance of transparent information by clarifying that the purpose of
the summative determination is to provide information on a school's
overall performance to parents and the public ``in a clear and
understandable manner.''
Changes: We have renamed Sec. 200.18 in the final regulations to
clarify and recognize all of the components of annual meaningful
differentiation--performance levels, data dashboards, summative
determinations, and indicator weighting. We have also clarified Sec.
200.18(a)(4) to require that the summative determination provide
information ``in a clear and understandable manner'' on a school's
overall performance on annual report cards.
Comments: Several commenters wrote in opposition to the requirement
for a single summative rating, believing such a requirement unfairly
penalizes schools based on the makeup of students in their communities,
due to the correlation between student demographics and student
achievement measures, with a few commenters specifically concerned such
a rating would fail to address the unique needs and circumstances of
rural schools.
Discussion: We disagree that a requirement for a single summative
determination, as revised in the final regulation, will unfairly
differentiate schools based on the students they serve. We believe such
criticisms may be rooted more in concerns with the accountability
system required in the past under NCLB, which primarily considered
student test scores and graduation rates, and that these concerns are
significantly mitigated by changes in the accountability systems that
will be implemented under the new law. Under Sec. 200.18, States, in
consultation with stakeholders, must develop a multi-indicator system
for annually differentiating schools that looks beyond achievement
measures to take into account a more well-rounded picture of school
success. As a result, schools could be recognized for the significant
progress they are making in helping low-achieving students grow
academically to meet State standards, improvements in school climate or
the percentage of English learners who progress toward language
proficiency, and reductions in rates of chronic absence, among many
other measures that could be added within one of the new accountability
indicators. Because of the new discretion States have to rethink the
measures they use to differentiate schools and create systems that
represent their local goals and contexts, including the particular
needs of rural communities, we are hopeful that States can avoid some
of the pitfalls of their prior accountability systems and provide
annual school determinations that are clearer and more meaningful to
the parents and the public.
Changes: None.
Comments: One commenter believed that a summative rating
requirement would inhibit capacity at the local level
[[Page 86123]]
to conduct the data analysis needed to design effective school
improvement strategies that will meet a school's specific needs, and
suggested that we add to the regulations an option for States to submit
in their State plans an alternative method (instead of a summative
rating) for differentiating schools based on their performance, which
would require approval from the Secretary based on a number of
criteria.
Discussion: Given the revisions described previously to Sec.
200.18(a)(4), we believe it is unnecessary to provide an alternative
method for States to differentiate schools--a State may use the
required categories for identification enumerated in the statute as its
summative determinations, or adopt a host of other approaches to
provide an overall picture of each school's performance across all of
the indicators. Because this overall determination must also be
presented on report cards alongside indicator-specific information
(e.g., in a data ``dashboard''), we disagree with the commenter that a
summative determination makes it more challenging for LEA and school
staff to access and analyze the data necessary to drive effective
school interventions. We strongly encourage schools to consider all
data from its State accountability system, in addition to local data,
in designing school improvement plans, so that the plans reflect, to
the fullest extent, the needs and strengths of each identified school.
Further, we are regulating on the required needs assessment for schools
identified for comprehensive support and improvement under Sec. 200.21
to ensure that the school improvement process is data-driven and
informed by each school's context, relevant student demographic and
performance data, and the reasons the school was identified, not just
an overall determination.
Changes: None.
Comments: Several commenters were concerned that aggregating
performance, including performance of student subgroups, across each
indicator into a single rating would make information about how well a
school was serving its subgroups of students more opaque and less
consequential in the overall accountability system.
Discussion: We agree with commenters that a requirement for a
summative determination for each school could appear to deemphasize
related statutory requirements to hold schools accountable for the
performance of an individual subgroup. This concern is mitigated by the
fact that summative determinations must reflect the performance of all
students and subgroups in the school. Nevertheless, we are revising
Sec. 200.18(a)(6), as renumbered, to reinforce the importance of
subgroup accountability, while retaining an overall summative
determination. Further, we note that information on LEA and State
report cards--including the overview section as described in Sec. Sec.
200.30-200.31--must show student-level data related to each indicator,
disaggregated by subgroup, which will help ensure that parents and the
public have access to both an overall understanding of school
performance, as well as detailed information broken down by subgroup.
Changes: We have renumbered and revised Sec. 200.18(a)(6) to
reiterate that the system of annual meaningful differentiation must
inform the State's methodology for identifying schools for
comprehensive and targeted support and improvement, including
differentiation of schools with a consistently underperforming
subgroup.
Comments: Two commenters suggested modifying the requirement in
proposed Sec. 200.18(b)(4) for each State to provide schools with a
single rating, from among at least three rating categories, to require
at least five rating categories. With only three categories, they
attested, the lowest category would be reserved for schools in the
lowest-performing five percent of title I schools, while the highest
category would be limited to a handful of top performers--leaving the
majority of schools in the middle tier and providing little
differentiation.
Discussion: While we appreciate the commenters' concern that three
summative categories could result in a system where many schools are
grouped into a single category, we also recognize that the requirement
for at least three summative categories of schools is most consistent
with the statutory requirement to, based on all indicators, identify
schools for comprehensive support and improvement, targeted support and
improvement, or to not identify schools for either category. Further,
we believe that a system with five categories of schools could also
result in the majority of schools identified in a single category,
depending on the State's methodology. Ultimately, the external peer
review of State plans will inform whether a State has established a
system for meaningfully differentiating between schools in a manner
consistent with the statutory and regulatory requirements. Moreover, we
believe a number of methodologies and approaches can meet these
requirements, and we want to ensure States have the ability to adopt a
range of methods to provide summative determinations. Nothing in the
regulations prevents a State from adopting additional categories of
schools, particularly if they find that three categories are not
providing sufficient differentiation, but we believe States should
retain that discretion to go beyond the three required categories,
working with stakeholders and other partners to meets their particular
needs and goals.
Changes: None.
Comments: A few commenters suggested removing the requirement in
proposed Sec. 200.18(b)(4) for each LEA report card to describe a
school's summative performance as part of the description of the
State's system for annual meaningful differentiation on LEA report
cards under Sec. Sec. 200.31 and 200.32, preferring to give States the
discretion to report a school's summative rating publicly.
Discussion: We believe the overall performance of a school is among
the most critical and essential information to make readily available
to parents and the public on LEA report cards, alongside data on
individual measures and indicators. In particular, given the role of
summative determinations in identification for support and improvement
under Sec. 200.19, parents and the public need to know a school's
determination in order to better understand why a school was, or was
not, identified for intervention.
Changes: None.
Performance Levels on Indicators
Comments: Several commenters supported the requirement in Sec.
200.18 for States to establish and report a performance level (from
among at least three levels) for each school, for each indicator, as
part of the State's system of annual meaningful differentiation of
schools, because such levels would provide necessary and complementary
information to a school's summative rating by recognizing areas of
strengths and weakness, in addition to overall performance, and would
support a more accurate and comprehensive picture of a school's impact
on learning in the context of multi-measure accountability systems. As
a result, they believe the requirement helps improves trust in, and the
transparency of, school determinations among parents and the public and
informs more effective improvement strategies targeted to the specific
needs of schools and their students.
A number of other commenters, however, objected to the proposed
requirements for States to report the level of performance, from among
at least three levels, for each indicator on LEA report cards and use
the
[[Page 86124]]
performance levels as the basis for a school's summative rating. Some
of these commenters opposed performance levels as a return to
prescriptive and limiting subgroup-based accountability formulas
required by the NCLB. Other commenters raised methodological objections
to performance levels on indicators, asserting that such an approach is
inconsistent with research and does not yield valid or reliable
accountability determinations, particularly by setting arbitrary cut
points, where there is no meaningful difference between schools just
above, and just below, those cut points.
Several commenters called for giving States more flexibility to
design their own systems for differentiating performance on indicators.
Some of these commenters believe this would result in a less
complicated and more user-friendly accountability system, while one
commenter noted that the same policy goals behind performance levels
could be reached in other ways, such as comparing performance on each
indicator to State averages or similar schools. Other commenters
asserted that the requirement for performance levels is inconsistent
with the ESEA, as amended by the ESSA, or that it violates the
prohibition in section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by
the ESSA, regarding the specific methodology used by States to
meaningfully differentiate or identify schools--noting that the only
performance levels required under the statute are the academic
achievement standards under section 1111(b)(1).
Discussion: We appreciate the support from many commenters for the
requirement for States to establish performance levels on each
indicator as part of the system of annual meaningful differentiation.
We agree that an overall determination for a school is most useful and
effective when coupled with clear information, such as would be
provided by State-determined performance levels, on the underlying
data, which helps contribute to a better understanding of how that data
led to the school's final determination. We also believe that a clear
set of performance levels provide the context parents and the public
need to understand whether a school's performance is adequate, or
exemplary, context that otherwise may not be evident from comparisons
to district and State averages on LEA report cards.
We note, however, that performance levels are not intended to
create AYP-like thresholds for individual subgroups that definitively
determine school identification, which some commenters viewed as
undermining the validity and reliability of schools' accountability
designations in the past; rather, States must report school results on
each indicator against the State-determined performance levels as part
of their overall system of meaningful differentiation of schools on LEA
report cards. We also note that States have discretion to develop their
own criteria for performance levels, including norm-referenced
approaches linked to State averages or performance quartiles--so long
as the levels are consistent with attainment of the long-term goals and
measurements of interim progress and clear and understandable, as
demonstrated in its State plan. In addition, to help clarify the role
of performance levels in providing schools with a summative
determination and the distinction between this more flexible approach
and AYP, we are revising Sec. 200.18(a)(4) to indicate that the
summative determination is ``based on differing levels of performance
on the indicators,'' rather than on ``each indicator.''
In response to commenters who stated that the requirement to
establish at least three levels of performance on all indicators
exceeds the Department's authority because it was not explicitly
included in the statutory text, as previously discussed (see discussion
of the Department's legal authority under the heading Cross-Cutting
Issues), given the Department's rulemaking authority under GEPA, the
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and that
the requirement falls within the scope of section 1111(c) of the ESEA,
as amended by the ESSA, consistent with section 1111(e), it is not
necessary for the statute to specifically authorize the Secretary to
issue a particular regulatory provision. Further, the requirements in
Sec. 200.18(a)(2)-(3), as renumbered, for States to adopt and report
on a school's performance, from among at least three levels of
performance, on each indicator are necessary to reasonably ensure that
parents and the public receive comprehensive, understandable
information on school performance on LEA report cards--information that
can empower parents, lead to continuous improvement of schools, and
guide decision-making at the local and State levels.
By increasing transparency, performance levels help reinforce the
statutory purpose of title I: ``to provide all children significant
opportunity to receive a fair, equitable, and high-quality education,
and to close educational achievement gaps.'' Without such a
requirement, publicly reported information on the accountability system
would lack the comparative information needed to determine whether all
children were receiving an equitable education and closing such gaps on
a host of measures. This is because data presented on LEA report cards
``must include a clear and concise description of the State's
accountability system'' consistent with section 1111(h)(1)(C)(i) and
1111(h)(2)(c) of the ESEA, as amended by the ESSA, yet is not (with the
exception of academic assessments under section 1111(b)(2)) presented
in any context, such as by reporting on the distribution of data at the
State or LEA level compared to a school's results. Thus, any contextual
information for parents and the public from the accountability system
regarding whether schools and LEAs are living up to this purpose would
be missing, absent a performance level requirement.
Additionally, these requirements are not inconsistent with section
1111(e)(1)(B)(iii)(V) because they do not prescribe a particular
methodology that a State must use to annually differentiate or identify
schools. States will have discretion to determine how best to meet the
requirement within the overall design of their system. For example,
each State will need to decide what the performance levels should be
for each indicator; whether the same performance levels should be used
for each indicator; how many levels are appropriate; how the levels
will be incorporated into the overall system, such as whether they will
be part of the basis for identifying consistently underperforming
subgroups; and the particular methodology it will use to determine a
level for each school.
Changes: We have revised Sec. 200.18(a)(4) to require that a
school's summative determination be based on ``differing levels of
performance on the indicators'' rather than on the school's performance
level on ``each indicator.''
Comments: One commenter suggested that requiring indicator
performance levels to inform the summative rating could mask the
performance of low-performing subgroups in the context of an overall
rating, as the performance levels would not necessarily be
disaggregated for each subgroup in the school. The commenter believed
the proposed requirements were insufficient to ensure States comply
with the statutory requirement under section 1111(c)(4)(C)(iii) for
annual meaningful differentiation to include differentiation of
consistently underperforming subgroups. Instead, the commenter
suggested requiring a school with a consistently underperforming
subgroup to receive a lower summative rating
[[Page 86125]]
than it would have otherwise received if one of its subgroups of
students was not consistently underperforming.
Discussion: We agree that the proposed regulations were not clear
on the relationship between performance levels and subgroup
accountability. Our intent was not to require a system of performance
levels for each subgroup on each indicator, but to ensure that
performance levels reflect a State's long-term goals for all students
and each subgroup of students. For example, if a State sets a goal of
achieving a 90 percent four-year graduation rate for all students and
each subgroup of students, a school with only 70 percent of English
learners and Black students graduating in four years should not receive
the highest performance level for that indicator. We recognize,
however, that not all indicators have a corresponding long-term goal;
this provision was only intended to apply to indicators for which there
is a related long-term goal (i.e., academic achievement, graduation
rates, and ELP), and we are revising the final regulations for clarity
so that this requirement only includes indicators where an applicable
long-term goal exists. Further, we are also revising Sec.
200.18(a)(6), as renumbered, to reinforce the overall importance of
subgroup accountability by stating that the system for differentiation
of schools must inform identification of consistently underperforming
subgroups.
Finally, we also agree with the commenter that to ensure
differentiation for consistently underperforming subgroups, as required
by section 1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, it
is helpful to require any school with a consistently underperforming
subgroup of students to receive a lower summative determination than it
would have otherwise received, and we are revising Sec. 200.18(c)(3)
accordingly.
Changes: We have renumbered and revised Sec. 200.18(a)(2)-(3) to
further clarify the relationship between subgroup performance and the
performance levels on each indicator. Section 200.18(a)(2) clarifies
that the three performance levels on each indicator must be consistent
with attainment of the long-term goals and measurements of interim
progress, if applicable, because the State is only required to
establish goals and measurements of interim progress for some
indicators (i.e., Academic Achievement, Graduation Rate, and Progress
in Achieving English Language Proficiency). In addition, we have
renumbered and revised Sec. 200.18(a)(6) to reiterate that the system
of meaningful differentiation must inform the State's methodology for
identifying schools for comprehensive and targeted support and
improvement, including differentiation of schools with a consistently
underperforming subgroup of students.
Finally, we have renumbered and revised Sec. 200.18(c)(3) to
require that each State, in order to meet the requirements for annual
meaningful differentiation under Sec. 200.18(a), demonstrate that any
school with a consistently underperforming subgroup of students
receives a lower summative determination than it otherwise would have
received had no subgroups in the school been so identified.
Comments: One commenter recommended revising the requirement for
each State to establish at least three levels of school performance on
each indicator under proposed Sec. 200.18(b)(2) so that binary
measures would be permitted, which could distinguish between schools
that met or did not meet a certain threshold, providing additional
flexibility for States. Another commenter suggested clarifying that
continuous measures would be permissible to meet the requirement for
setting performance levels on each indicator. For example, the
commenter suggested that an indicator measured on a 0-100 scale could
meet the requirement, without further aggregation, because it arguably
results in 101 performance levels. This comment was consistent with
others that supported the adoption of data ``dashboards'' as the
primary basis for school accountability determinations, or the
increased use of scale scores or raw performance data for
accountability purposes.
Discussion: While it is important to understand whether a school is
meeting a particular performance expectation, such information may be
incorporated into a system that includes three levels of performance,
while a binary measure would not support differentiation among above-
average, typical, and below-average performance. Given the statutory
requirement for meaningful differentiation between schools, we believe
requiring at least three performance levels on each indicator is
necessary to meet this requirement. We also believe the requirement for
three levels is not limiting on States, as nearly any binary measure
can be expressed in three or more levels (e.g., ``approaching,''
``meets,'' and ``exceeding'').
Similarly, the intent of the provision was to encourage State-
determined performance levels that provide meaningful information on
each indicator. Merely reporting that a school received 55 out of a
possible score of 100 on an indicator, for example, does not include
any context about whether a 55 is a typical score, or whether this is
an area where the school is lagging or exceeding expectations. Thus, a
continuous measure does not meet the requirement to establish at least
three levels of performance for each indicator, as it would otherwise
be no different than reporting raw data for each indicator; the
performance levels must be ``discrete.'' We recognize that a data
``dashboard'' holds potential to be a useful tool for communicating
information on school quality and may be used by a State to meet this
requirement, as reflected in revised Sec. 200.18(a)(3), so long as the
data on the ``dashboard'' is presented in context by creating bands of
performance or performance thresholds, so that parents and the public
have clear information on whether a school's level of performance is
acceptable. The requirement for performance levels on each indicator
does not prohibit the use of a data ``dashboard'' that shows the full
scale of values for an indicator; rather, it requires States to make
distinctions between schools based on the data presented in the
``dashboard,'' such as by performance bands or quartiles.
Changes: We have renumbered and revised Sec. 200.18(a)(2)-(3) to
clarify that a State must, as part of its system of annual meaningful
differentiation, include at least three distinct and discrete
performance levels on each indicator, as opposed to continuous measures
or scale scores, and may use a data ``dashboard'' on its LEA report
cards for this purpose.
Comments: One commenter requested the Department require, for the
Academic Achievement indicator, that a State's academic achievement
standards under section 1111(b)(1) of the ESEA, include below
proficient, proficient, and above proficient levels of performance.
Discussion: We appreciate the commenter's suggestions on ways to
ensure that academic achievement standards are rigorous and set high
expectations for all students. Although framed as a comment about
performance levels, the commenter is actually requesting that the
Department regulate on academic achievement standards, which require
negotiated rulemaking. Consequently, the Department is not authorized
to make the requested change through these final regulations.
Changes: None.
[[Page 86126]]
Weighting of Indicators
Comments: Numerous commenters were concerned that the proposed
regulations overemphasized the role of student achievement, as measured
by assessments in math and reading/language arts, in the system of
annual meaningful differentiation of schools. Some of these commenters
opposed the general requirements in proposed Sec. 200.18(c)(1)-(2) to
afford indicators of Academic Achievement, Academic Progress,
Graduation Rates, and Progress in Achieving English Language
Proficiency ``substantial'' weight, individually, and ``much greater''
weight, in the aggregate, than indicators of School Quality or Student
Success. A number of commenters, however, strongly supported proposed
Sec. 200.18(c)(1)-(2), recognizing that the language regarding
``substantial'' and ``much greater'' weight was taken from section
1111(c)(4)(C) of the ESEA, as amended by the ESSA.
Discussion: We appreciate that consideration of a greater number of
factors in measuring school quality can help shed light on important
aspects of school performance. However, we agree with other commenters
that the provisions in proposed Sec. 200.18(c)(1)-(2) are based on the
statutory requirements related to the weighting of indicators, which
ensure that students' academic outcomes and progress remain a central
component of accountability.
Changes: None.
Comments: A number of commenters supported the provisions in
proposed Sec. 200.18(d) for how States demonstrate they meet the
requirements for weighting of indicators and recommended maintaining
them in the final regulation. These commenters variously stated that
the requirements (1) provide helpful clarification on the vague
statutory terms ``much greater'' and ``substantial'' weight; (2) erect
necessary guardrails to ensure that student academic outcomes,
including for low-performing subgroups, drive the differentiation of
schools and identification for support and improvement within State-
determined, multi-measure accountability systems; and (3) preserve
State discretion over weighting of indicators in their accountability
systems by focusing on outcomes, rather than particular weighting
methodologies or percentages. While many of these commenters
recognized, and often appreciated, the addition of new School Quality
or Student Success indicators to add nuance to the accountability
system, they strongly believed that student academic outcomes should
have the greatest influence on differentiation and identification of
schools for support and were concerned that, absent these regulations,
accountability systems would undercut the importance of student
learning. In addition, many commenters stated that the requirements
strike an appropriate balance, noting that States could adopt a myriad
number of approaches and methodologies for weighting their
accountability indicators, based on their particular goals and needs.
Numerous commenters, however, objected to these requirements,
stating that they would prevent new School Quality or Student Success
indicators from having a meaningful impact in statewide accountability
systems, including by affecting the differentiation of school
performance, identification for support and improvement, or the school
improvement process. While they recognized that these indicators are
not afforded ``substantial'' weight under the statute, they believed
the proposed regulations would result in little or zero weight for
these measures and an overemphasis on test-based measures. In addition,
several commenters believed the requirements related to demonstrating
the weighting of indicators discourage the collection of more nuanced
accountability measures such as school climate or chronic absenteeism.
Other commenters variously stated that the requirements for weighting
would be best determined by stakeholders; result in more a complex and
less transparent system for parents and the public; inhibit creative
approaches to differentiating school performance and be overly
prescriptive; inappropriately limit State flexibility in a manner that
is inconsistent with the ESEA, as amended by the ESSA; or violate
section 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the ESSA,
which provides that nothing in the statute authorizes or permits the
Secretary to prescribe the weight of any measure or indicator or the
specific methodology used by States to meaningfully differentiate or
identify schools.
Discussion: We agree with commenters that it is vital to provide
guardrails for State systems of annual meaningful differentiation that
clarify and support effective implementation of the statutory
requirements for certain indicators to receive ``substantial'' and
``much greater'' weight, and that these are ambiguous terms that
warrant specification in regulation, given the influence of indicator
weighting on how schools will be annually differentiated and identified
for support and improvement. Section 1111(c)(4)(C)(ii) of the ESEA, as
amended by the ESSA, requires academic indicators to have a larger role
in annually differentiating schools, relative to School Quality or
Student Success indicators, which in turn influences school
identification. Moreover, we share the views of commenters who believe
it is important for student academic outcomes, including for subgroups,
to be at the heart of the accountability system in order to safeguard
educational equity and excellence for all students.
In response to commenters who argued that the requirements for
these demonstrations exceed the Department's authority because they are
not explicitly authorized by the statute, as previously discussed (see
discussion of the Department's general rulemaking authority under the
heading Cross-Cutting Issues), it is not necessary for the statute to
specifically authorize the Secretary to issue a particular regulatory
provision, given the Secretary's rulemaking authority under GEPA, the
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA. Further,
the requirements in Sec. 200.18(c), as renumbered, are within the
scope of, and necessary to reasonably ensure compliance with, the
requirements for the weighting of indicators set forth in section
1111(c)(4)(C)(ii) of the ESEA, as amended by the ESSA, and for
differentiation of schools with consistently underperforming subgroups
set forth in section 1111(c)(4)(C)(iii), and therefore do not violate
section 1111(e). If a school could receive the same overall
determination, regardless of whether one of its subgroups was
consistently underperforming or not, a State's system could not
reasonably be deemed to ``include differentiation of any . . . school
in which any subgroup of students is consistently underperforming, as
determined by the State, based on all indicators'' as required by
section 1111(c)(4)(C)(iii). Similarly, if a school can go unidentified
for support and improvement, despite the fact that this school would
have been in the bottom five percent of title I schools based on
substantially weighted indicators and despite not making significant
progress for all students on substantially weighted indicators, the
State's system of meaningful differentiation is not providing those
indicators ``much greater'' and ``substantial'' weight, as required by
section 1111(c)(4)(C)(ii). In both cases, failing to meet the
demonstrations in Sec. 200.18(c) means that factors identified by the
statute as requiring extra emphasis (i.e., substantially weighted
indicators and
[[Page 86127]]
consistently underperforming subgroups) received insufficient attention
and did not result in ``meaningful'' differentiation.''
Additionally, the requirements in Sec. 200.18(c), as renumbered,
for States to demonstrate how they have weighted their indicators and
ensured differentiation of consistently underperforming subgroups by
examining the results of the system of annual differentiation and the
schools that are identified for support and improvement are consistent
with section 1111(e)(1)(B)(iii)(IV)-(V) of the ESEA, as amended by the
ESSA, because they do not prescribe the weight of any indicator, nor a
particular methodology that a State must use to annually differentiate
schools, such as an A-F grading system. There are numerous weighting
schemes and processes for differentiating and identifying schools that
could meet these requirements--including percentages for each
indicator, business rules or other mechanisms to ensure certain schools
are identified or flagged for having a consistently underperforming
subgroup or low performance on ``substantial'' indicators, or a matrix
approach where a particular combination of performance across various
indicators results in identification.
We agree with many commenters that an approach that focuses on
outcomes (i.e., the overall determination for the school and the
schools that are identified for support and improvement), is both
appropriate and necessary to ensure compliance with the requirements in
section 1111(c)(4)(C)(ii)-(iii) of the ESEA that emphasize certain
academic indicators and the importance of differentiating schools with
underperforming groups of students, while maintaining State discretion
to develop its system of meaningful differentiation. Because these
demonstrations can apply to any methodology a State designs, they
provide the Department a way to verify a State has met critical
statutory requirements for indicator weighting and differentiation of
subgroups, without stifling the new flexibility States have to adopt
innovative approaches to differentiate and identify schools for
support, including those that use categorical labels instead of a
numerical index.
We recognize and agree that the intention of the ESSA was to create
State accountability systems based on multiple measures; however, we
disagree with commenters that Sec. 200.18(c) will result in a less
transparent, overly complicated, and test-driven accountability system.
Under both the NCLB and ESEA flexibility waivers, States often adopted
business rules or other mechanisms to ensure school identification
based on their accountability systems was aligned with definitions for
categories of identified schools, and we are confident that similar
approaches can be used to ensure compliance with the definitions and
requirements in the ESSA. Further, section 1111(h)(1) of the ESEA and
Sec. Sec. 200.30-200.33 require annual State and LEA report cards to
include a full description of the accountability system, including the
weighting of indicators, to ensure parents have a clear understanding
of how differentiation and identification work in their State. Under
these regulations, States ultimately have the responsibility to design
accountability systems that meet the statutory requirements for
weighting of indicators and as a result, may develop systems for
weighting that are either straightforward or more complex. We strongly
encourage States to consider the value of clarity and transparency in
developing their systems, and to develop them in close consultation
with stakeholders who will be regularly using the information produced
by the accountability system, including parents, educators, and
district-level officials, among others.
Finally, we note that School Quality or Student Success indicators
must, and should, play a role in providing schools with annual
determinations and identifying them for improvement and clarify that
the requirements in Sec. 200.18(c) do not prohibit School Quality or
Student Success indicators from being taken into account for these
purposes. Each school's overall determination under Sec. 200.18(a)(4)
must reflect all of the indicators the State uses, and we believe there
are significant opportunities for States to develop new and meaningful
indicators, as discussed further in response to comments on Sec.
200.14. Because these demonstrations are simply meant to ensure that--
regardless of a school's summative determination--the substantially
weighted indicators receive sufficient emphasis in determining whether
a school needs support and improvement, we believe the final
regulations do not discourage the adoption of innovative approaches to
measure school success or the collection of new indicators and that
many methods (as previously described) can meet them.
Changes: None.
Comments: Numerous commenters provided feedback on both ways that a
State must demonstrate it meets the statutory provisions for weighting
of indicators described in proposed Sec. 200.18(d)(1)-(2), which
requires that an indicator of School Quality or Student Success may not
be used to change the identity of a school that would otherwise be
identified for interventions, unless such a school was also making
significant progress on a substantially weighted indicator, for the
same reasons they supported or opposed proposed Sec. 200.18(d)
generally, as described previously.
In addition, several commenters had specific concerns about these
provisions, feeling that under proposed Sec. 200.18(d)(1)-(2) a School
Quality or Student Success indicator could only be used to penalize,
rather than reward, schools in the State's system of annual meaningful
differentiation. In doing so, they believed the proposed regulations
eliminated a valid rationale (i.e., performance on School Quality or
Student Success indicators) for differentiating between schools and
undermined the reliability and validity of school identification. A few
of these commenters also raised objections that the proposed
demonstrations potentially conflict with exit criteria in Sec. Sec.
200.21 and 200.22 by requiring improvement on test-based measures. One
commenter suggested that the proposed demonstrations in Sec.
200.18(d)(1)-(2) were unnecessary, so long as States identified the
required percentage of the lowest-performing schools for comprehensive
support and improvement.
Discussion: We disagree with commenters that these demonstrations
are unnecessary. While States are required to identify certain schools
for targeted and comprehensive support and improvement, including at
least the lowest-performing five percent of title I schools, the
requirements for weighting indicators are a distinct requirement under
section 1111(c)(4)(C)(ii) of the ESEA, as amended by the ESSA, that
must be taken into account when identifying schools, in addition to any
statutory requirements regarding the categories or definitions of
identified schools.
We also disagree that the proposed regulations failed to account
for the positive role that School Quality or Student Success indicators
can play in a State's accountability system or would lead to invalid
determinations because these factors were not considered; we believe
that some of these concerns may be ameliorated by further explanation
and clarification of how the demonstrations will work. Under the
proposed and final regulations, each school's level of performance on
all
[[Page 86128]]
indicators must be reported and factored into the school's summative
determination under Sec. 200.18(a)(2)-(4), including School Quality or
Student Success indicators. Schools that do well on indicators of
School Quality or Student Success should see those results reflected in
both their performance level for that indicator (which may be part of a
data ``dashboard''), and in their overall determination (e.g., an
overall numerical score or grade, a categorical label like ``priority''
or ``focus'' schools, etc.). The separate requirements in Sec.
200.18(c)(1)-(2), as renumbered, are intended to help States
demonstrate that their methods afford ``much greater'' weight to the
academic indicators, in the aggregate, than to indicators of School
Quality or Student Success not by focusing solely on school summative
determinations, but by analyzing school identification for
comprehensive and targeted support and improvement--this will serve as
a check to ensure that, on the whole, each substantially weighted
indicator is receiving appropriate emphasis in the State's
accountability system and that schools struggling on these measures
receive the necessary supports.
These requirements are completely distinct from exit criteria,
which are described in Sec. Sec. 200.21-200.22 and apply to schools
that have been implementing comprehensive and targeted support and
improvement plans. The demonstrations described in Sec. 200.18(c)(1)-
(2) happen earlier in the accountability process to help determine
which schools should be identified and subsequently placed in support
and improvement. In particular, a State would meet these demonstrations
for indicator weighting by flagging any unidentified school that met
two conditions: (1) The school would have been identified if only
substantially weighted indicators had been considered; and (2) the
school did not show significant progress from the prior year, as
determined by the State, on any substantially weighted indicator. While
schools are expected, under Sec. Sec. 200.21-200.22, to make progress
in order to exit improvement status, the progress referenced in
proposed Sec. 200.18(d)(1)-(2) could avoid entry into improvement
status altogether. We believe that minor clarifications to proposed
Sec. 200.18(d)(1)-(2) can help clarify how these requirements are
intended to be implemented.
Changes: We have renumbered and revised Sec. 200.18(c)(1)-(2) to
distinguish these requirements for demonstrating the weight of
indicators from exit criteria that remove schools from identified
status, as specified in Sec. Sec. 200.21 and 200.22. We have also
revised Sec. 200.18(c)(1)-(2) to clarify that these demonstrations are
intended to verify that schools that would hypothetically be identified
on the basis of all indicators except School Quality or Student
Success, but were excluded from identification when the State
considered all indicators, have been appropriately categorized in a
status other than comprehensive support and improvement or targeted
support and improvement, because these schools made significant
progress on the accountability indicators, including at least one that
receives ``substantial'' weight.
Comments: Some commenters asked for additional guidance on what
significant progress means, or for revisions to clarify that
significant progress is determined by the State. One commenter further
suggested that we strike the expectation for significant progress, and
replace it with a demonstration of sufficient progress.
Discussion: We agree with commenters that it is helpful to make
clear that significant progress, in the context of the demonstrations
for indicator weighting required under renumbered Sec. 200.18(c)(1)-
(2), is defined by the State based on the school's performance from the
prior year, and are revising the final regulations accordingly. Given
that States have this discretion to define significant progress in
context of their unique indicators and goals, we believe additional
examples or considerations for ``significant progress'' are best
addressed in non-regulatory guidance.
Changes: We have revised Sec. 200.18(c)(1)-(2) to clarify that the
meaning of significant progress from the prior year, as determined by
the State, on a substantially weighted indicator as part of these
demonstrations.
Comments: A few commenters asserted that the proposed regulations
complicated the statutory requirements for ``substantial'' and ``much
greater'' weight and recommended alternative approaches, such as
requiring that School Quality or Student Success account for less than
50 percent of all indicators in a statewide accountability system, or
that each indicator be weighted equally at 25 percent (meaning that
non-School Quality or Student Success indicators would make up 75
percent of the overall rating). Finally, some commenters recommended
additional guidance on the weighting of indicators, including specific
percentages that might be afforded to certain indicators consistent
with statutory and regulatory requirements, as well as how to
demonstrate compliance with Sec. Sec. 200.18(d)(1) and (2).
Discussion: We agree with commenters that further examples and
discussion to clarify the requirements for weighting of indicators in
Sec. 200.18(c) would be helpful and should be addressed in any non-
regulatory guidance the Department issues to support States in
implementation of their accountability systems.
Because States retain the discretion to develop numerous methods
for annual meaningful differentiation, including those that build on
data ``dashboards'', use a two-dimensional matrix, or rely on
categorical labels rather than a numerical index, we believe it would
be inappropriate to regulate that a particular percentage for each
indicator, or set of indicators, would meet the statutory requirements
to afford academic indicators ``substantial'' and ``much greater''
weight, as it could imply that only numerical indices were permitted.
Although we are not including any percentages in the final regulations,
we also note that we disagree with commenters suggesting that ``much
greater'' weight for academic indicators could be as little as half of
the overall weight in the system of differentiation--``much greater''
implies that these indicators should be afforded well over 50 percent
of the weight.
Changes: None.
Comments: One commenter stated that the required demonstrations for
States related to weighting of indicators could create confusion for
rural or small schools where data on the ``substantial'' (in
particular, those based on student assessment results) indicators may
not be available due to n-size limitations.
Discussion: We recognize the commenter's concern that there are
cases where a school may be missing a particular indicator for a number
of reasons, which would complicate meeting the requirements in Sec.
200.18(c). As discussed in greater detail below under the subheading
Other Requirements in Annual Meaningful Differentiation of Schools, we
are revising Sec. 200.18(d)(1)(iii) to include a provision previously
in proposed regulations for consolidated State plans that permit a
State to propose a different methodology for very small schools, among
other special categories of schools, in annual meaningful
differentiation, which would include how indicators are weighted.
Changes: None.
Comments: Numerous commenters provided feedback to the Department
on proposed Sec. 200.18(d)(3), which would require each State to
demonstrate that a
[[Page 86129]]
school performing at the State's highest performance level on all
indicators received a different summative rating than a school
performing at the lowest performance level on any substantially
weighted indicator, based on the performance of all students and each
subgroup of students in a school, citing the same reasons they
generally supported or opposed the requirements in proposed Sec.
200.18(d) overall.
However, a number of commenters raised additional concerns that
were specific to proposed Sec. 200.18(d)(3). Several commenters felt
the requirement would undermine the transparency of summative ratings,
because a single low-performing subgroup could prevent a school from
receiving the highest possible distinction in the State's
accountability system. They further noted that the proposed
demonstrations felt like a return to the top-down and prescriptive
system of AYP, which the ESSA eliminated in favor of greater
flexibility for States with respect to the design of accountability
systems and determinations. In addition, a few commenters suggested
eliminating this provision, citing their overall objection to summative
ratings.
Other commenters suggested replacing this demonstration with a
requirement that would emphasize differentiation of schools with
consistently underperforming subgroups of students, believing that
Sec. 200.18(d)(3), as proposed, created incentives for States to
establish a very small ``highest'' rating category (e.g., an A+
category of schools in an A-F system), so that schools could still
receive a very high rating when one or two subgroups were struggling on
a substantially weighted academic indicator. They recommended requiring
a State to demonstrate that any school with a consistently
underperforming subgroup of students, as identified under Sec. 200.19,
would be assigned a lower summative rating than it would have otherwise
received as a stronger way to ensure States' systems of annual
meaningful differentiation meet the statutory requirement to
differentiate schools with consistently underperforming subgroups.
Discussion: We appreciate many commenters' views on the importance
of upholding the statutory requirements for the academic indicators to
receive ``substantial'' weight individually, and ``much greater''
weight in the aggregate, in each State's system of annual meaningful
differentiation, and their recognition that this is particularly
important to ensure subgroup performance is meaningfully recognized in
the State's accountability system. Moreover, the statute requires the
Academic Achievement, Academic Progress, Graduation Rate, and Progress
in Achieving English Language Proficiency indicators to have a ``much
greater'' role in school differentiation, compared to School Quality or
Student Success indicators, and we share the views of commenters who
believe that student academic outcomes, including outcomes for
subgroups, must be a primary focus of the accountability system as a
way to promote equity and excellence for all students.
We agree with commenters that these ends, however, would be better
realized by revising the proposed regulations to require that a school
with a consistently underperforming subgroup of students receive a
lower summative determination than it would have otherwise received if
the subgroup were not consistently underperforming, given the
commenters' argument that the proposed regulations did not adequately
include the statutory requirement differentiate schools with a
consistently underperforming subgroup. We believe the suggestion of
linking this demonstration to consistently underperforming subgroups of
students better reinforces the requirement in section
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, for a State's
system of annual meaningful differentiation to include differentiation
of schools with a consistently underperforming subgroup; we agree that
if a school is able to receive the same overall determination,
regardless of whether a subgroup is underperforming, a State has not
met this requirement. We also agree with the commenter that this
approach will provide less of an incentive for States to create a very
small ``highest'' category (an ``A+'' category), rather than remove
schools from an exemplary category (an ``A'' grade) due to subgroup
performance.
While we recognize commenters' concerns that this demonstration, as
proposed, would undermine the transparency of school determinations or
would require States to develop an AYP-like accountability system, we
believe that such concerns are outweighed by the statutory requirement
that consistently underperforming subgroups must be meaningfully
differentiated each year and be identified for targeted support and
improvement--and believe that an accountability system is not
communicating school performance clearly to the public if a
consistently underperforming subgroup is not reflected in a school's
overall performance designation. Finally, in response to commenters
that opposed this provision as proposed due to their opposition to
summative ratings for schools, as the final regulation clarifies that
the summative determination may be aligned to the categories required
for school identification (in which case, schools with a consistently
underperforming subgroup would be in targeted support and improvement),
we believe the revisions to Sec. 200.18(a)(4) address their concerns.
Changes: We have renumbered and revised Sec. 200.18(c)(3) to
require that each State, in order to meet requirements for annual
meaningful differentiation under Sec. 200.18(a) and section
1111(c)(4)(C)(iii) of the ESEA, as amended by the ESSA, demonstrate
that any school with a consistently underperforming subgroup of
students receives a lower summative determination than it otherwise
would have received had no subgroups in the school been so identified.
Comments: A few commenters suggested replacing all three of the
demonstrations related to indicator weighting with an alternative
requirement that States demonstrate in their State plans how the
academic indicators carry ``much greater'' weight than non-academic
indicators, and how the State's methodology to identify schools will
ensure that schools with low performance on indicators receiving ``much
greater'' weight will be identified for improvement as a result.
Discussion: We appreciate the commenters' recognition that a
State's system for weighting indicators should align with its
methodology for identifying schools for comprehensive and targeted
support and improvement. While we disagree that the demonstrations in
Sec. 200.18(c), as renumbered, are unnecessary (as previously
described), we agree that schools performing poorly on substantially
weighted indicators should be more likely to be identified for
intervention, and the focus on the outcomes of the system of annual
meaningful differentiation (rather than inputs) is consistent with our
approach to the weighting requirements generally. To reiterate this
focus on outcomes and ensure that, through its State plan, each State
describes how it is meeting the underlying purpose of the requirements
in Sec. 200.18(c)(1)-(2) related to weighting, we are revising Sec.
200.18(d)(1)(ii) to specify that the overall goal behind the
requirements for weighting indicators is to ensure that schools
performing poorly across the indicators receiving ``much greater''
weight are more likely to be identified for support and improvement
under
[[Page 86130]]
Sec. 200.19 and to include this explanation in the State plan with the
State's demonstration of how it is meeting the requirements of Sec.
200.18(c).
Changes: We have revised Sec. 200.18(d)(1)(ii) to require that
each State describe in its State plan how it has met all of the
requirements of this section, including how the State's methodology for
identifying schools for comprehensive support and improvement and
targeted support and improvement ensures that schools with low
performance on substantially weighted indicators are more likely to be
so identified.
Comments: Several commenters supported the clarification in
proposed Sec. 200.18(e)(2) that the indicators required by the statute
to receive ``substantial'' weight (Academic Achievement, Graduation
Rate, Academic Progress, and Progress in Achieving English Language
Proficiency) need not be afforded the same ``substantial'' weight in
order to meet the requirement--promoting flexibility and discretion for
States in designing their accountability systems under the ESSA and
weighting indicators based on State-determined priorities and goals.
Discussion: We appreciate the commenters' support for this
provision.
Changes: None.
Comments: A few commenters expressed support for the requirements
in proposed Sec. 200.18(c)(3) and (e)(3) that States maintain the same
relative weighting between the accountability indicators for all
schools within a grade span, including for schools that are not held
accountable for the Progress in Achieving English Language Proficiency
indicator, as a way to maintain consistency and fairness in States'
systems for differentiating schools. Other commenters, however, opposed
the requirement. Some believed the requirement goes beyond the statute
because the only requirements related to grade spans in section 1111(c)
of the ESEA, as amended by the ESSA, are related to indicators of
School Quality or Student Success. Others thought the requirement was
an overly prescriptive intrusion on State discretion over the weighting
of indicators, as States will be in a better position to determine a
method to maintain comparable and fair expectations for all schools. A
few other commenters requested that we modify the relative weighting
requirement so that States may vary the weighting between indicators
not only by grade span, but also based on the characteristics of
students served by the school or the amount of data available for a
given indicator in a school; these commenters believed, for example,
that school demographics could make one indicator more relevant than
other indicators, and thus deserving of greater weighting, in measuring
school performance. Similarly, commenters questioned how this provision
would work in small schools and in schools that serve variant grade
configurations. However, another commenter believed that all schools
should be held accountable for the Progress in Achieving English
Language Proficiency indicator, regardless of the number of English
learners in the school, to ensure that States selecting higher n-sizes
do not avoid accountability for ELP.
Discussion: We appreciate that commenters want to ensure States
have the ability to establish multi-indicator accountability systems
that are fair for all schools and accurately capture a school's overall
impact on student learning, consistent with the requirements for
substantially weighing certain indicators, and agree that requiring the
same relative weighting among all schools within a grade span should be
maintained.
We recognize that it is challenging to have a system of annual
meaningful differentiation with completely uniform weighting, given
differences in school size, grade configurations, and special
populations of students served. Therefore, we are revising the
regulations, as discussed previously, to permit States to propose
alternative approaches that are used to accommodate special kinds of
schools. However, very small schools or schools with variant grade
configurations that do not fit into a single grade span are the
exception, not the norm; we believe it is paramount to ensure that
schools are treated consistently in the system of annual meaningful
differentiation given the consequential decisions (e.g., identification
for comprehensive or targeted support and improvement, eligibility for
school improvement funding) that flow out of this system. The statute
requires a statewide, multi-indicator accountability system, and a non-
uniform weighting scheme between those indicators across a State would
undermine this requirement significantly. States retain significant
flexibility to design the statewide weighting scheme between each grade
span using their various indicators, but without uniform weighting
within each grade span, the methodology for differentiating schools and
identifying them for support and improvement could be unreliable from
district to district, or worse, biased against particular schools or
set lower expectations for certain schools, based on the population of
students they serve.
Thus, it is crucial that all of the accountability indicators be
afforded the same relative weights across schools within a grade span
to reasonably ensure compliance with the statutory requirements in
section 1111(c) regarding a statewide system of annual meaningful
differentiation and identification of schools for support and
improvement, including the weighting of indicators in section
1111(c)(4)(c). As such, this regulation falls squarely within the
Department's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA and within the scope of section 1111(c) of the
ESEA, as amended by the ESSA, and therefore does not violate section
1111(e). For example, allowing the Academic Achievement indicator to
matter more for subgroups that are already high achieving, and less in
schools where subgroups are low-performing, would be both inconsistent
with the purpose of the accountability system to improve student
achievement and school success, and introduce bias into the system of
differentiation. In response to commenters who noted this provision was
not explicitly referenced in the statutory text, given the Secretary's
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the
ESEA, as amended by the ESSA (see discussion of the Department's
general rulemaking authority under the heading Cross-Cutting Issues),
it is not necessary for the statute to specifically authorize the
Secretary to issue a particular regulatory provision.
In general, because the Progress in Achieving English Language
Proficiency indicator is the sole indicator that is measured for a
single subgroup, we believe it is helpful to clarify that the relative
weighting of indicators must be maintained when a school cannot be held
accountable for this indicator due to serving a low number of English
learners; as the n-size will be determined by each State, and as some
schools may not serve any English learners, we cannot require all
schools to be held accountable on the basis of this indicator. Since
the statute creates this distinction (by creating one of the five
required indicators around a single subgroup), we believe it is
appropriate to include a specific exception to the relative weighting
requirement based on this indicator, but to limit other exceptions to
the relative weighting requirement.
Changes: None.
Comments: A few commenters suggested that the Department encourage
each State to emphasize
[[Page 86131]]
student growth or progress, over absolute achievement, when weighting
its accountability indicators consistent with proposed Sec.
200.18(c)(1)-(2), because they believe student growth more accurately
reflects the impact of a school on student learning than a measure of
achievement taken at a single point in time.
Discussion: We agree that student academic growth is a critical
measure to include in State accountability systems, and encourage all
States to incorporate both achievement and growth into the annual
differentiation of schools, because a student growth measure can reveal
and recognize schools with low achievement levels that nevertheless are
making significant strides to close achievement gaps and thus should be
celebrated, and may not need to be identified for improvement. However,
we believe it is most consistent with the statute for each State, and
not the Department, to determine whether using student growth is
appropriate for its accountability system, and to select the weight
afforded to student growth relative to other required indicators.
Changes: None.
Other Requirements in Annual Meaningful Differentiation of Schools
Comments: Several commenters suggested that Sec. 200.18 should
include additional references to stakeholder engagement, including
consultation with parents, district and school leaders, educators and
other instructional support staff, and community members, in developing
the system of annual meaningful differentiation. One commenter
suggested such engagement be expanded to include the creation of parent
and community advisory boards to develop and implement the system of
differentiation used in their State and LEA, while another commenter
suggested schools be held accountable for how well they involve parents
in key decisions and improvement efforts.
Discussion: The requirements for annual meaningful differentiation
of schools in Sec. 200.18 already are subject to requirements for
timely and meaningful consultation as part of the consolidated State
plan regulations, and we believe additional emphasis on stakeholder
engagement here is unnecessary.
Changes: None.
Comments: A number of commenters supported the reiteration of
statutory requirements in proposed Sec. 200.18(b)(1) for the system of
annual meaningful differentiation to include the performance of all
students and each subgroup of students on every required accountability
indicator, consistent with the requirements for inclusion of subgroups
in Sec. 200.16, for n-size in Sec. 200.17, and for partial enrollment
in Sec. 200.20. Other commenters objected to these requirements as
precluding certain indicators that could provide helpful information to
differentiate between schools but could not be disaggregated for each
student subgroup, such as teacher or parent surveys or whole-school
program evaluations.
Discussion: Section 1111(c)(4)(B) of the ESEA, as amended by the
ESSA, is clear that each indicator used in statewide accountability
systems must be disaggregated by subgroup, with the exception of the
Progress in Achieving English Language Proficiency indicator, which is
only measured for English learners. Further, section 1111(c)(4)(C)
states that meaningful differentiation of schools must be based on all
indicators for all students and for each subgroup of students.
Changes: None.
Comments: A few commenters objected to the requirements in proposed
Sec. 200.18(b)(5) for the system of annual meaningful differentiation
to meet requirements in Sec. 200.15 to annually measure the
achievement of at least 95 percent of all students and 95 percent of
students in each subgroup on the required assessments in reading/
language arts and mathematics.
Discussion: Section 1111(c)(4)(E) of the ESEA, as amended by the
ESSA, requires each State to measure the achievement of at least 95
percent of students and 95 percent of students in each subgroup and
factor this participation requirement into the statewide accountability
system, and this provision only reiterates regulatory requirements
described further in Sec. 200.15.
Changes: None.
Comments: A number of commenters requested additional flexibility
or exceptions to the requirements for annual meaningful differentiation
for certain categories of schools, such as rural schools, small
schools, schools that combine grade spans (e.g., a K-12 schools), and
alternative schools (e.g., schools serving overage or under-credited
students, other dropout recovery programs, or students with
disabilities who may need more time to graduate). These commenters
generally acknowledged the need to hold such schools accountable for
their performance, but sought flexibility to use different indicators
or methods that they believe would be more suited to the unique needs
and circumstances of these schools. One commenter noted that while
proposed Sec. 299.17 would permit States to propose different methods
for differentiating school performance in their consolidated State
plans, it was not sufficiently clear whether this flexibility extended
to school identification. Other commenters expressed concerns about
creating loopholes in the accountability system for schools that serve
vulnerable and historically underserved student populations.
Discussion: We appreciate the commenters' concerns with designing
accountability systems that are inclusive of all schools and provide
fair, consistent methods for reporting school performance and
determining when additional interventions and supports are necessary.
We share these goals, which is why proposed Sec. 299.17 permitted
States flexibility to develop or adopt alternative methodologies under
their statewide accountability systems that address the unique needs
and circumstances of many of the schools cited by commenters.
This flexibility, which is similar to past practice under NCLB, is
also intended to apply to both annual meaningful differentiation and
identification of schools under Sec. Sec. 200.18 and 200.19, and
allows a State, if it desires, to propose an alternative way for
producing an annual determination for these schools (based on the same,
or modified, indicators) and for identifying these schools for
comprehensive or targeted support and improvement. We are revising
Sec. 200.18(d)(1)(iii) to include the list of schools for which a
State may use a different methodology for accountability previously
included in Sec. 299.17, with additional clarification or examples to
better explain why such schools might require this flexibility. We
note, however, that this provision allows for this flexibility only
where it is impossible or inappropriate to include all of the
indicators a State typically uses to differentiate schools, and thus is
not generally applicable to regular public schools, including most
rural schools.
Changes: We have revised Sec. 200.18(d)(1)(iii) to include
clarifying language, previously in proposed Sec. 299.17, that a State
may propose a different methodology for annual meaningful
differentiation--and by extension, identification for comprehensive and
targeted support and improvement--for certain schools, such as: (1)
Schools in which no grade level is tested on the assessments required
by the ESEA under section 1111(b)(2)(B) (e.g., P-2 schools); (2)
schools with variant grade configurations (e.g., K-12 schools); (3)
[[Page 86132]]
small schools that do not meet the State's n-size on any indicator even
after averaging data across schools years or grades consistent with
Sec. 200.20; (4) schools that are designed to serve special
populations, such as students receiving alternative programming in
alternative educational settings; students living in local institutions
for neglected or delinquent children, including juvenile justice
facilities; students enrolled in State public schools for the deaf or
blind; and recently arrived English learners enrolled in public schools
for newcomer students; and (5) newly opened schools where multiple
years of data are not available consistent with procedures for
averaging school-level data described in Sec. 200.20 for at least one
indicator (e.g., a high school that has not yet graduated its first
cohort for students).
Comments: We received several comments from tribal organizations
that recommended exempting schools from the requirement for annual
meaningful differentiation in section 200.18 if they instruct students
primarily in a Native American language and if the State does not
provide an assessment in that Native American language; these
commenters suggested such schools should be listed as
``undifferentiated.'' However, other tribal organizations supported the
proposed regulations for a single statewide accountability system,
particularly because over 90 percent of American Indian and Alaska
Native students attend State-funded public schools, as opposed to
schools funded by the BIE or private operators. For these public school
students, one commenter noted, the statewide accountability systems,
including indicators that measure student achievement, are especially
important.
Another tribal organization raised concerns about a lack of
accountability for schools served by the Bureau of Indian Education
(BIE) and requested that separate accountability measures should apply
to tribally-controlled schools, and that schools located on Indian
lands should be funded and monitored directly by the Department rather
than by States.
Discussion: While States have some flexibility to develop alternate
methods for differentiating and identifying schools, as described
previously, the ESEA, as amended by the ESSA, continues to require that
all public schools in each State be held accountable through a single
statewide system of annual differentiation, and States may not exempt
any school entirely from annual meaningful differentiation or
identification. This includes schools that primarily instruct students
in a Native American language.
In addition, under section 8204(c)(1) of the ESEA, as amended by
the ESSA, the Secretary of the Interior must use a negotiated
rulemaking process to develop regulations pertaining to standards,
assessments, and accountability, consistent with section 1111, for BIE-
funded schools ``on a national, regional, or tribal basis, as
appropriate, taking into account the unique circumstances and needs of
such schools and the students served by such schools.'' Given the
specific rulemaking process required for schools funded by the BIE, we
cannot address in these regulations the role of individual schools
under the BIE accountability system. We do note, however, that section
8204(c)(2) permits a tribal governing body or school board of a BIE-
funded school to waive, in part or in whole, the requirements that BIE
establishes and to submit a proposal to the Secretary of the Interior
for alternative standards, assessments, and an accountability system,
consistent with section 1111, that takes into account the unique
circumstances and needs of the school or schools and students served.
The Secretary of the Interior, along with the Secretary of Education,
must approve those alternative standards, assessments, and
accountability system unless the Secretary of Education determines that
they do not meet the requirements of section 1111.
With respect to the comment about the funding and monitoring of
schools located on Indian lands, to the extent that the comment is
referring to State-funded public schools, State funding and oversight
are matters of State law and are outside the scope of these
regulations.
Changes: None.
Comments: None.
Discussion: Each State must describe in its State plan how its
system of annual meaningful differentiation meets all statutory and
regulatory requirements, but in proposed Sec. 200.18, multiple
paragraphs referenced information that must be included in the State
plan. To provide additional clarity for States, prevent the inadvertent
omission of required information in a State plan, and ensure that
required information is transparent for those preparing and reviewing
State plan submissions, we are revising Sec. 200.18 to combine all
requirements related to information submitted on annual meaningful
differentiation in the State plan in a single paragraph.
Changes: We have revised Sec. 200.18(d)(1), and renumbered
remaining paragraphs of Sec. 200.18 accordingly, to include, in one
paragraph, all information that each State must submit in its State
Plan under section 1111 of the ESEA to describe how its system of
annual meaningful differentiation meets the regulations.
Comments: While many commenters supported the provisions in Sec.
200.18 regarding annual meaningful differentiation of schools, a few
commenters recommended striking Sec. 200.18 in its entirety, out of
concern that the regulations are too prescriptive, punitive, test-
driven, and unnecessary to clarify the statute.
Discussion: As discussed previously, the regulations are necessary
and useful to clarify the requirements for annual meaningful
differentiation and weighting of indicators. Further, we believe these
regulations will help States in their efforts to support students and
schools, consistent with the purpose of title I: ``to provide all
children significant opportunity to receive a fair, equitable, and
high-quality education, and to close educational achievement gaps.''
Changes: None.
Section 200.19 Identification of Schools
Comments: One commenter stated that the proposed regulations lack
clarity regarding the terms used for the various groups of schools that
States must identify for school improvement. As an example, the
commenter noted that schools identified for additional targeted support
are referenced as having either a chronically low-performing subgroup
or a low-performing subgroup.
Discussion: The Department has made every effort to use consistent
language throughout the regulations when referring to categories of
identified schools. The examples cited by the commenter actually refer
to two separate categories of schools. Schools with low-performing
subgroups are schools identified for targeted support and improvement
that also must receive additional targeted support under section
1111(d)(2)(C) of the ESEA, as amended by the ESSA; if they do not
improve over time, then they are defined as chronically low-performing
subgroup schools and must be identified for comprehensive support and
improvement. For greater clarity regarding the types of schools that
must be identified, the Department is revising the final regulations to
include the chart below, which summarizes each category of schools that
States must identify to meet the requirements in section
[[Page 86133]]
1111(c) and 1111(d) of the ESEA, as amended by the ESSA:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Statutory Timeline for Initial year of
Types of schools Description \22\ provision \23\ Regulatory provision identification identification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category: Comprehensive Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lowest-Performing............ Lowest-performing five percent Section Sec. 200.19(a)(1)...... At least once 2018-2019.
of schools in the State 1111(c)(4)(D)(i every three
participating in Title I. )(I). years.
Low High School Graduation Any public high school in the Section Sec. 200.19(a)(2)...... At least once 2018-2019.
Rate. State with a four-year 1111(c)(4)(D)(i every three
adjusted cohort graduation )(II). years.
rate at or below 67 percent,
or below a higher percentage
selected by the State, over no
more than three years.
Chronically Low-Performing Any school participating in Section Sec. 200.19(a)(3)...... At least once State-determined.
Subgroup. Title I that (a) was 1111(c)(4)(D)(i every three
identified for targeted )(III), years.
support and improvement 1111(d)(3)(A)(i
because it had a subgroup of )(II).
students performing at or
below the performance of all
students in the lowest-
performing schools and (b) did
not improve after implementing
a targeted support and
improvement plan over a State-
determined number of years.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category: Targeted Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Consistently Underperforming Any school with one or more Section Sec. 200.19(b)(1), (c). Annually........ 2019-2020.
Subgroup. consistently underperforming 1111(c)(4)(C)(i
subgroups. ii),
1111(d)(2)(A)(i
).
Low-Performing Subgroup...... Any school in which one or more Section Sec. 200.19(b)(2)...... At least once 2018-2019.
subgroups of students is 1111(d)(2)(D). every three
performing at or below the years.
performance of all students in
the lowest-performing schools.
These schools must receive
additional targeted support
under the law. If this type of
school is a Title I school
that does not improve after
implementing a targeted
support and improvement plan
over a State-determined number
of years, it becomes a school
that has a chronically low-
performing subgroup and is
identified for comprehensive
support and improvement.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes: We have revised Sec. 200.19 to include a table that
describes each category of school support and improvement, including
each type of school within the category, and lists the related
statutory and regulatory provisions.
---------------------------------------------------------------------------
\22\ This chart provides a summary description only; please
refer to the regulatory text for a complete description of the
schools in these categories.
\23\ Section numbers refer to sections of the ESEA, as amended
by the ESSA.
---------------------------------------------------------------------------
Comments: Several commenters expressed concerns that the proposed
regulations would not allow States to identify schools for support if
they are eligible for, but do not receive, title I funds. Commenters
believe this is inconsistent with current practice and would result in
the identification of fewer high schools because most school districts
run out of title I funds before awarding funds to high schools. A few
commenters suggested that the Department allow States to identify the
lowest-performing five percent of title I-eligible schools, rather than
the lowest-performing five percent of title I-receiving schools. One
commenter raised concerns that if a State did not identify any high
schools for support and improvement because they did not receive title
I funds, then high schools would not be eligible for funds under
section 1003.
Discussion: We appreciate commenters' interest in ensuring that all
low-performing high schools are identified and supported. However,
under section 1111(c)(4)(D)(i)(I) of the ESEA, as amended by the ESSA,
a State is limited to identifying only schools that receive title I
funds when it identifies its lowest-performing five percent of title I
schools for comprehensive support and improvement. On the other hand,
States must identify any public high school with a graduation rate
below 67 percent for comprehensive support and improvement and any
school with subgroups that are consistently underperforming for
targeted support and improvement, regardless of their title I status.
Any school identified for comprehensive or targeted support and
improvement that meets the definitions of those categories of schools
under the statute is eligible for funds under section 1003 of the ESEA,
as amended by the ESSA, regardless of whether the school receives other
title I funds. Given these statutory requirements for States to
identify and support high schools that do not receive title I funds, we
do not believe that additional regulatory flexibility is appropriate or
necessary.
Changes: None.
Comments: One commenter suggested the Department provide non-
regulatory guidance on how title I funds can be used to support non-
title I high schools identified for comprehensive support
[[Page 86134]]
because they have a graduation rate less than 67 percent.
Discussion: We appreciate the commenters' suggestion and will
consider this recommendation for non-regulatory guidance. As described
in the previous discussion section, a school non-title I high school
identified for comprehensive support because it has a graduation rate
of 67 percent or less is eligible for funds under section 1003 of the
ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter asked for clarity about whether a single
school can be identified for comprehensive and targeted support and
improvement simultaneously.
Discussion: It is possible that a school could meet the criteria to
be identified for both comprehensive and targeted support and
improvement. Given that the requirements for developing and
implementing comprehensive and targeted support and improvement plans
do not fully align, we are revising the regulations to clarify that
States must identify any school that is not identified for
comprehensive support and improvement under Sec. 200.19(a), but that
has a consistently underperforming subgroup or low-performing subgroup,
for targeted support and improvement. We encourage States and LEAs to
ensure that, for each school that is identified for comprehensive
support and improvement but who has a consistently underperforming or
low-performing subgroup, to ensure that the school's comprehensive
improvement and support plan identifies the needs of all students and
includes interventions designed to raise the achievement of all low-
performing students.
Changes: We have revised Sec. 200.19(b)(1)-(2) to clarify that any
school identified for comprehensive support and improvement under Sec.
200.19(a) need not also be identified for targeted support and
improvement under Sec. 200.19(b)(1) or (2).
Comments: One commenter suggested the Department eliminate any
requirement to identify comprehensive support and improvement schools
beyond those that are in the lowest-performing five percent of all
title I schools in the State and any public high school in the State
failing to graduate one-third or more of its students. The commenter
also suggested that the Department eliminate the targeted support and
improvement category.
Discussion: Section 1111(c)(4)(D) of the ESEA, as amended by the
ESSA, requires that each State identify three types of schools for
comprehensive support and improvement: Those that are the lowest-
performing five percent of all title I schools, all public high schools
failing to graduate one third or more of their students, and all title
I schools with low-performing subgroups that were originally identified
for targeted support and improvement but have not met the LEA-
determined exit criteria after a State-determined number of years.
Additionally, section 1111(d)(2)(A) requires States to identify schools
with consistently underperforming subgroups for targeted support and
improvement, and section 1111(d)(2)(C) requires identification of
schools if a subgroup, on its own, is performing as poorly as students
in the lowest-performing five percent of title I schools, i.e., a low-
performing subgroup. Given these statutory requirements, the Department
declines to make changes in this area.
Changes: None.
Comments: One commenter suggested that the Department add a
requirement that a school identified for comprehensive support and
improvement must provide support through the Native American language
of instruction to those students instructed primarily in a Native
American language, and provide such support through the Native American
language based in the structure and features of the language itself
such that it does not limit the preservation or use of the Native
American language.
Discussion: We appreciate the commenter's emphasis on ensuring that
interventions in comprehensive support and improvement schools align
with the unique characteristics and goals of schools that provide
instruction primarily in a Native American language. We believe that,
in general, the concerns of the commenter would be addressed through
key components of the school improvement process, such as a needs
assessment and consultation requirements, both of which could emphasize
the need for instructional interventions to be delivered through the
specific Native American language used in the school. We encourage
States and districts to work with such schools to address the required
components of the school improvement process, while also maintaining
the core aspects of the Native Language instructional program.
We note that it may not be necessary for some interventions
developed and implemented as part of a school's comprehensive or
targeted support and improvement plan (e.g., an early warning system
aimed at curbing chronic absenteeism) to be delivered in a Native
American language. The specific suggestion that the supports be
provided to students in a particular language is beyond the scope of
these regulatory provisions, which address comprehensive support and
improvement for a school in general (see examples in Sec.
200.21(d)(3)), rather than to students individually. Therefore, we
decline to make the use of Native American language a blanket
requirement for such interventions.
Changes: None.
Comments: One commenter requested that the Department require
States to identify schools for comprehensive support and improvement
every year.
Discussion: While the statute and proposed regulations provide
States with the flexibility to identify schools for comprehensive
support and improvement each year, section 1111(c)(4)(D)(i) of the
ESEA, as amended by the ESSA, requires States to identify schools no
less than once every three years. The change requested by the commenter
would not be consistent with this statutory flexibility.
Changes: None.
Comments: Some commenters encouraged the Department to clarify that
States may adopt or continue more rigorous systems for school and
subgroup accountability than those required by the statute and
regulations. For example, the commenters suggested clarifying that a
State could identify all high schools with a single subgroup that has a
graduation rate at or below 67 percent, rather than only schools where
the all students group has a graduation rate at or below 67 percent.
Additionally, one commenter suggested that the Department clarify that
States can identify more than the lowest performing five percent of
title I schools.
Discussion: We appreciate the commenters' interest in clarifying
that States have additional flexibility to design and implement
accountability systems that go beyond the minimum requirements of the
ESEA, as amended by the ESSA, and corresponding regulations. For
purposes of identifying schools to meet the Federal requirements for
school identification and to determine eligibility for Federal funds,
including school improvement funds under section 1003 of the ESEA,
States must use the applicable statutory and regulatory definitions,
and we believe the regulations should reflect these minimum
requirements. States may go beyond these minimum requirements by
identifying additional categories of schools, such as Warning Schools
or Reward Schools. Likewise, they may identify for comprehensive or
targeted support and improvement additional schools that do not meet
the definitions for those categories of
[[Page 86135]]
schools, but any such additional schools would not be eligible to
receive Federal funds--including school improvement funds under section
1003 of the ESEA--that are specifically for schools identified for
comprehensive or targeted support and improvement, as defined in the
statute. We believe that further clarification on this issue is more
appropriate for non-regulatory guidance.
We recognize, however, that the language in the proposed
regulations stating that a State's identification of schools for
comprehensive support and improvement must include ``at a minimum'' the
three types of schools specified in the statute and regulations, and
similar language regarding the two types of schools specified in the
statute and regulations for targeted support and improvement, may have
created some confusion as to whether a State has authority to identify
additional types of schools for comprehensive and targeted support and
improvement, and thereby to make such additional schools eligible for
funds that are to be provided specifically to schools identified for
comprehensive or targeted support and improvement. To clarify this
issue, we are removing the words ``at a minimum'' from those paragraphs
of the final regulations.
Additionally, section 1111(c)(4)(D)(i)(I) of the ESEA, as amended
by the ESSA, is clear that State must identify ``not less than'' the
lowest-performing five percent of title I schools for comprehensive
support. To clarify that this permits a State to identify more than the
lowest-performing five percent of title I schools (e.g., the bottom ten
percent of title I schools or five percent of each of title I
elementary, middle, and high schools), we have revised the regulatory
language to include this statutory flexibility.
Changes: We have removed the phrase ``at a minimum'' from Sec.
200.19(a) and (b). We have also revised Sec. 200.19(a)(1) to include
the phrase ``not less than'' in describing the lowest-performing
schools identified for comprehensive support.
Lowest-Performing Schools
Comments: One commenter expressed support for the requirement to
identify the lowest-performing five percent of schools, but another
commenter opposed the implication of the requirement that a State could
never have a system in which all schools were successful.
Discussion: The regulation requiring identification of the lowest-
performing schools implements section 1111(c)(4)(D)(i)(I) of the ESEA,
as amended by the ESSA, which requires that each State identify not
less than its lowest-performing five percent of title I schools for
comprehensive support and improvement.
Changes: None.
Comments: Several commenters raised concerns that proposed Sec.
200.19(a)(1) would require each State to identify the lowest-performing
five percent of schools at each of the elementary, middle, and high
school levels for comprehensive support and improvement. Other
commenters found this requirement inconsistent with section
1111(c)(4)(D)(i)(I) of the ESEA, which requires the identification of
the lowest-performing five percent of title I schools in the State. One
commenter specifically requested that States have flexibility to
identify the lowest-performing schools across grade spans, while
another commenter warned that such flexibility could result in not
identifying any schools in a particular grade-level (if, for example,
all of a State's elementary schools were high-performing but most
middle schools were performing poorly).
Discussion: We agree with the commenters that the proposed
requirements may have created confusion with respect to whether States
were required to identify the lowest-performing five percent of title I
schools at each of the elementary, middle, and high school levels. This
was not our intent, and we are revising the final regulations to
eliminate the reference to each grade span, although a State could
choose to identify five percent of title I schools at each grade span.
While we appreciate that a State could identify more schools in a
particular grade span than another, we believe it is unlikely that a
State would not identify any schools in a grade span and do not believe
it is appropriate to require a State to identify schools in each grade
span if it is otherwise identifying the lowest-performing five percent
of all title I schools in the State.
Changes: We have revised Sec. 200.19(a)(1) to clarify that each
State must identify the lowest-performing five percent of its title I
schools, without reference to particular grade spans.
Comments: Commenters raised concerns about the proposed requirement
that States identify the lowest-performing five percent of all title I
schools in the State based on each school's summative rating among all
students. Some of these commenters opposed the requirement because they
generally oppose the requirement to provide each school with a
summative rating and, as a result, oppose the requirement that it be
used for school identification. Another commenter questioned whether
summative ratings will be precise enough to separate a school at the
fifth percentile from a slightly higher ranked school. Other commenters
suggested specific approaches or flexibilities related to identifying
the lowest-performing five percent of schools, such as using school
academic proficiency rates, a combination of assessment data and other
measures, such as parent and climate surveys and graduation rates,
methods similar to those used to identify priority schools under ESEA
flexibility, or a combination of summative ratings and factors related
to school capacity and district support.
Discussion: Section 1111(c)(4)(D) of the ESEA, as amended by the
ESSA, requires States to identify schools for comprehensive support and
improvement based on the State's system of annual meaningful
differentiation, which includes multiple indicators beyond statewide
assessment results. Moreover, as required under Sec. 200.18(a)(4), a
State's system of meaningful differentiation must result in a summative
determination that is based on a school's performance on all
indicators, but does not include other factors, such as district
capacity or commitment. Therefore, a State cannot identify a school as
among its lowest-performing schools for comprehensive support and
improvement based on a single indicator, such as student performance on
the statewide assessments, nor incorporate into such identification
factors that are not indicators in its statewide accountability system.
However, as noted previously, States have the ability to identify more
than five percent of title I schools if the State determines such
identification is appropriate and useful to ensure additional low-
performing schools receive support. Further, as noted in the discussion
on Sec. 200.18, each State retains significant discretion to design
its system of meaningful differentiation and may incorporate a wide
range of academic and non-academic factors in the indicators that will
be used for the providing a summative determination for each school and
identification of the lowest-performing 5 percent of title I schools.
We are also revising Sec. 200.18(a)(4) to allow a State to use the
summative determinations discussed in the statute (i.e., comprehensive
support and improvement, targeted support and improvement, not
identified for support) and are making corresponding changes to Sec.
200.19(a)(1) to incorporate this flexibility.
Changes: Consistent with the changes to Sec. 200.18, we have
revised
[[Page 86136]]
Sec. 200.19(a)(1) to require States to identify at least the bottom
five percent of title I schools consistent with the summative
determinations provided under Sec. 200.18(a)(4).
Comments: One commenter suggested that once summative ratings were
used to identify the bottom five percent of title I schools, teachers
from the top five percent of schools should be sent to the bottom five
percent of title I schools to help them improve.
Discussion: Under the ESEA, as amended by the ESSA, school
districts are responsible for determining appropriate interventions in
schools identified for comprehensive support and improvement.
Changes: None.
Comments: None.
Discussion: Under Sec. 200.18 of the regulations, States must
include the performance of all students in calculating a school's
performance on each of the accountability indicators under Sec.
200.14, as well as in calculating the school's summative determination.
Therefore, it is unnecessary to refer to ``all students'' in Sec.
200.19(a)(1), which requires States to identify the lowest-performing
five percent of title I schools for comprehensive support and
improvement.
Additionally, consistent with the existing regulations and practice
across many States, Sec. 200.20 allows a State to average school-level
data across grades and across no more than three years in determining a
school's performance for accountability purposes. Therefore, the
Department is removing references in Sec. 200.19(a)(1) to averaging
summative determinations over no more than three years because,
although States may use data that have been averaged over up to three
years to calculate performance on indicators consistent with Sec.
200.20, the determinations themselves are not averaged. For clarity, we
are also removing other references to data averaging throughout Sec.
200.19 because Sec. 200.20 provides the full parameters under which
States may average school-level data over school years and across
grades.
Changes: We have revised Sec. 200.19(a)(1) to: (1) Remove
references to ``all students,'' and (2) remove references to averaging
summative ratings (now summative determinations in the final
regulations) over no more than three years. We have also removed a
reference from data averaging in Sec. 200.19(c)(2).
Low High School Graduation Rate
Comments: Some commenters opposed the 67 percent graduation rate
threshold for identification of high schools for comprehensive support
and improvement, particularly if applied to dropout recovery high
schools. Another commenter recommended identifying for comprehensive
support and improvement the lowest 10 percent of high schools based on
graduation rates, similar to the requirement that States identify the
lowest-performing five percent of all title I schools.
Discussion: The regulations are consistent with section
1111(c)(4)(D)(i)(II) of the ESEA, as amended by the ESSA, which
requires States to identify all public high schools in the State that
fail to graduate one-third or more of their students. Section
200.18(d)(1)(iii), which contains provisions that were included in
proposed Sec. 299.17, allows a State to use a differentiated
accountability approach for schools that serve special populations,
including dropout recovery high schools.
Changes: None.
Comments: A number of commenters supported the Department's
proposal to require States to consider only the four-year adjusted
cohort graduation rate in identifying low graduation rate high schools
for comprehensive support and improvement and to permit a State to set
a threshold higher than 67 percent in identifying such schools. One
commenter suggested that the Department clarify that the threshold for
such determination was inclusive of schools with a graduation rate of
67 percent, rather than just schools with graduation rates below 67
percent, and that this criterion applies to all public high schools in
the State, not just those that receive funds under title I of the ESEA.
Discussion: We appreciate the commenters' support for the exclusive
use of the four-year adjusted cohort graduation rate in identifying low
graduation rate high schools and agree that a school with a graduation
rate of 67 percent must be identified, consistent with the statutory
requirement that the State identify each public high school that fails
to graduate one third or more of its students; we are revising the
regulations to clarify this point. However, we do not believe it is
necessary to further clarify that States must identify all public low
graduation rate high schools, not just schools receiving title I funds,
for comprehensive support and improvement, given that the statute and
regulations are clear on this point.
Changes: We have revised Sec. 200.19(a)(2) to specify that a high
school with a four-year adjusted cohort graduation rate at or below 67
percent must be identified for comprehensive support and improvement.
Comments: Several commenters suggested that the regulations be
modified to allow States to identify low graduation rate high schools
based on the four-year adjusted cohort graduation rate, an extended-
year adjusted cohort graduation rate, or a combination of these rates.
Similarly, one commenter suggested that a State be allowed to use an
extended-year adjusted cohort graduation rate for this purpose,
provided the State sets a higher graduation rate threshold (e.g., 70
percent) for identifying schools based on an extended-year rate.
Some commenters believe that an extended-year adjusted cohort
graduation rate is a more appropriate measure because it would
recognize the importance of serving students who may take longer than
four years to graduate. Many of these commenters suggested that the use
of the four-year adjusted cohort graduation rate only to identify
schools is inconsistent with the inclusion, at the State's discretion,
of extended-year adjusted cohort graduation rates in the calculation of
long-term goals, measurements of interim progress, and indicators under
section 1111(c)(4)(A)(i)(I)(bb)(BB) and 1111(c)(4)(B)(iii)(II) of the
ESEA and proposed Sec. Sec. 200.13-200.14. Some of these commenters
also stated that the statute's silence on the rate to be used for
purposes of identifying schools should be interpreted as providing
States flexibility in this area.
Commenters were particularly concerned that identifying schools
based solely on the four-year adjusted cohort graduation rate would
discourage schools from serving over-age or under-credited youth who
may take longer than four years to graduate, is inconsistent with many
States' provision of a Free Appropriate Public Education (FAPE) until a
student turns 21, and would inappropriately identify alternative
schools such as dropout recovery schools, schools for students in
neglected or delinquent facilities, and schools for recently arrived
immigrants. One commenter stated the proposed regulations were
inconsistent with title IV of the ESEA, which creates a priority for
charter schools to serve students at risk of dropping out or who have
dropped out of school (Section 4303(g)(2)(E) of the ESEA) and with the
Workforce Innovation and Opportunity Act (WIOA), which encourages
schools and States to reengage out of school youth and provide a high
school diploma as a preferred credential for those aged 16 to 24.
Another commenter recommended that the Department
[[Page 86137]]
allow dropout recovery schools to collect and report one-year
graduation rates in place of the four-year and extended-year adjusted
cohort graduation rates because using even the extended-year rate would
over-identify such schools.
A few commenters noted that the Department previously recognized
the need for flexibility under its 2008 title I regulations by allowing
States to use a four-year adjusted cohort rate and an extended-year
adjusted cohort graduation rate in calculating AYP for high schools.
Other commenters suggested that a more nuanced approach that allowed a
State to use an extended-year rate for certain alternative education
programs would be appropriate. One commenter noted that, under the
proposed regulations, nearly all of the alternative high schools in its
State would be identified.
Discussion: We agree with commenters that it is vital for States,
LEAs, and schools to serve students who have been traditionally
underserved because of their age or lack of credits, and that programs
and priorities like those in title IV of the ESEA and the WIOA are
essential to support these students. However, we also seek to ensure
that States identify and support high schools that fail to graduate
one-third of their students, as required by section
1111(c)(4)(D)(i)(II) of the ESEA, as amended by the ESSA. The four-year
adjusted cohort graduation rate is the primary measure of graduation
rates within the statewide accountability system, including the
Graduation Rate indicator, long-term goals, and measurements of interim
progress. Therefore, identifying low graduation rate high schools using
the four-year adjusted cohort graduation rate is critical to ensuring
that when schools fail to graduate one-third of their students, they
are identified and receive appropriate and meaningful supports so that
each of their students can graduate. Indeed, using the four-year
adjusted cohort graduation rate is essential to helping ensure that low
graduation rate high schools are identified and receive appropriate and
meaningful supports, even if a State establishes a graduation rate
threshold that is higher than 67 percent.
However, we recognize that for a small subset of schools that serve
unique populations of students, an extended-year rate may be a more
appropriate indicator of a school's performance, and we have revised
Sec. 200.18(d)(1)(iii) to clarify that States have flexibility to
develop and implement alternate accountability methods--which may
include the use of extended-year graduation rates--for schools designed
to serve special student populations, including alternative schools,
dropout recovery programs, and schools for neglected and delinquent
youth. Under this provision, a State could, for example, propose
through its State plan to use a five- or six-year adjusted cohort
graduation rate to determine if an alternative or dropout recovery
school's graduation rate was 67 percent or less for the purposes of
identifying those schools.
Given this flexibility, the Department does not believe that
requiring States to use the four-year adjusted cohort graduation rate
will result in the inappropriate or over-identification of schools that
primarily serve special populations of students.
Further, in response to commenters who noted the statute's silence
on the particular rate to use for identification of low graduation rate
high schools, given the Secretary's rulemaking authority under GEPA,
the DEOA, and section 1601(a) of the ESEA, as amended by the ESSA (see
discussion of the Department's general rulemaking authority under the
heading Cross-Cutting Issues), it is not necessary for the statute to
specifically authorize the Secretary to issue a particular regulatory
provision. Moreover, we do not agree that Congress' silence on which
graduation rate is to be used for purposes of identifying schools
precludes the Department from clarifying the requirement. To the
contrary, given the specific references to extended-year rates in the
statutory provisions regarding goals, measurements of interim progress,
and accountability indicators, it seems clear that if Congress intended
to permit States to use an extended-year rate for purposes of
identifying schools, it would have specified. Accordingly, we believe
that the clarification in Sec. 200.19(a)(2) that identification of low
graduation rate high schools is to be based on the four-year adjusted
cohort graduation rate falls squarely within the scope of section
1111(c) of the ESEA, as amended by the ESSA, consistent with section
1111(e) and is reasonably necessary to ensure compliance with the
requirements in section 1111(c)(4)(D)(i)(II) and, as such, constitutes
an appropriate exercise of the Department's rulemaking authority.
Changes: None.
Comments: Some commenters suggested that the Department allow
States, in identifying low graduation rate high schools, to use a non-
cohort graduation rate or to include students who attain an alternate
diploma in determining if a school's graduation rate was 67 percent or
less. Another commenter requested that the Department allow States to
include students who have met all the terms of their IEPs as graduates.
Discussion: While we understand the commenters' interest in
recognizing the support schools provide to all students, regardless of
whether those students receive a regular high school diploma, sections
8101(23)(A)(ii) and 8101(25)(A)(ii) of the ESEA and related regulations
in Sec. 200.34 already explicitly allow States to include students
with the most significant cognitive disabilities who take an alternate
assessment based on alternative academic achievement standards, meet
certain other criteria, and receive an alternate diploma, in the
State's adjusted cohort graduation rate or rates. The statute expressly
prohibits States from including students that earn a high school
equivalency diploma or other alternate diploma in the State's adjusted
cohort graduation rate or rates. Therefore, we decline to allow States
to use measures other than the four-year or extended-year adjusted
cohort graduation rates, calculated consistently with the statutory and
regulatory requirements, to identify high schools for the purposes of
comprehensive support and improvement.
Changes: None.
Chronically Low-Performing Subgroup
Comments: Some commenters asserted that the Department created a
third category of comprehensive support schools, those with chronically
low-performing subgroups, that was not in the statute. One commenter
proposed making it clear that it was up to States to include this
category of schools through the development of a State plan. Another
commenter noted the statute uses the term consistently underperforming
subgroup, but does not refer to chronically low-performing subgroups.
One commenter suggested that the Department reconsider its
definition of chronically low-performing subgroup schools and move this
definition into non-regulatory guidance. The commenter is concerned
that this requirement, in conjunction with other provisions in this
section, will result in very high rates of identification of schools
for comprehensive support and improvement.
Discussion: The chart at the beginning of this section provides a
reference guide on the types of schools that must be identified for
comprehensive support and improvement or targeted support and
improvement under the law. With respect to ``chronically low-performing
[[Page 86138]]
subgroups,'' that term is not specifically used in the statute but is
the term we are using in the regulations to identify a category of
schools described in two sections of the ESEA. Section 1111(d)(2)(C) of
the ESEA, as amended by the ESSA, requires each State to identify
schools with low-performing subgroups (i.e., those with subgroups who,
on their own, are performing as poorly as the lowest-performing five
percent of all title I schools) for targeted support and improvement
and these schools also must receive additional targeted support.
Section 1111(c)(4)(D)(i)(III) then states that if these schools do not
improve after implementing a targeted support and improvement plan over
a number of years, they must be identified for comprehensive support
and improvement. When these schools are first identified for targeted
support and improvement, they are referred to in the regulations as
schools with ``low-performing subgroups''; however, if they do not
improve over a State-determined number of years, they must be
identified for comprehensive support and improvement. The Department is
referring to these schools as schools with ``chronically low-performing
subgroups'' for the sake of clarity because the statute does not
provide a specific term for them and a term is needed to clarify for
States their statutory obligations with respect to these schools.
Changes: None.
Comments: Several commenters opposed the proposed requirement that
States identify for comprehensive support and improvement any title I
school with a low-performing subgroup that has not improved after
implementing a targeted support and improvement plan over no more than
three years. In particular, commenters believed that the proposed
requirement would force States to set a three-year timeline for the
exit criteria for a school with a low-performing subgroup and would
likely result in the over-identification of schools with chronically
low-performing subgroups. The commenters referred to section
1111(d)(3)(A)(i)(II) of the ESEA, as amended by the ESSA, which
requires States to set exit criteria for schools with low-performing
subgroups and to determine the number of years by which, if such a
school is a title I school that has not met the exit criteria, it must
be identified for comprehensive support and improvement. One commenter
suggested, in addition to modifying the regulations to reflect that the
State determine the number of years before a school with a low
performing subgroup be identified for comprehensive support, that
States publish a list, at least once every three years, of the schools
with low-performing subgroups that are identified for targeted support
and improvement that also must receive additional targeted support
because they have one or more low-performing subgroups that are still
identified as such because they have not yet met the State's exit
criteria. Another commenter stated that three years was too long to
permit a school to languish as a school receiving additional targeted
support before it is identified for comprehensive support, and would
result in students in such schools not receiving timely support.
Discussion: Section 1111(c)(4)(D)(i)(III) requires States to
identify schools with chronically low-performing subgroups for
comprehensive support and improvement at least once every three years.
Section 1111(d)(3)(A)(i)(II) authorizes States to establish statewide
exit criteria for such schools. Under this same section, if those
criteria are not satisfied in a State-determined number of years, those
schools that receive title I funds must be identified for comprehensive
support and improvement. The final regulations reflect these statutory
requirements. Within these requirements, States still have discretion
regarding the timelines and exit criteria. Thus, we encourage each
State to carefully consider the various timelines for school
identification it must implement to meet its statutory and regulatory
obligations. Finally, we do not believe that an additional reporting
requirement is necessary as States and LEAs must annually publish State
and local report cards that include information about schools
identified for support and improvement, including those with low-
performing or chronically low-performing subgroups.
Changes: The Department has revised Sec. 200.19(a)(3) to clarify
that States determine the number of years over which a school with a
low-performing subgroup identified for targeted support under Sec.
200.19(b)(2) may implement a targeted support plan before the State
must determine that the school has not met the State's exit criteria
and, if it receives title I funds, identify the school for
comprehensive support and improvement. We have made a corresponding
change to Sec. 200.22(f)(2).
Comments: One commenter opposed the requirement that a school be
identified for comprehensive support and improvement if a single
subgroup's low performance would lead to such identification. In
particular, the commenter was concerned that requiring a school with a
single low-performing subgroup to be identified for comprehensive
support and improvement would dilute State support services and
funding, diminishing support for schools with greater needs.
Discussion: The identification of schools with chronically low-
performing subgroups for comprehensive support and improvement if they
do not improve after implementing a targeted support and improvement
plan over a State-determined number of years is required by section
1111(c)(4)(D)(i)(III) of the ESEA, as amended by the ESSA, and reflects
the key focus of title I on closing educational achievement gaps.
Changes: None.
Targeted Support and Improvement, in General
Comments: One commenter suggested that the Department amend
proposed Sec. 200.19(b) to encourage States to consider third-grade
reading scores as one measure that can trigger the need for targeted
support.
Discussion: The Department recognizes that there are a wide range
of measures that States may choose to incorporate into their systems of
annual meaningful differentiation of schools, including for purposes of
identifying schools for targeted support and improvement, but we
believe the inclusion of any additional measures should be left to
State discretion.
Changes: None.
Comments: Several commenters recommended that the Department remove
proposed Sec. 200.19(b) and allow States to determine the parameters
for identifying schools for targeted support and improvement. Some of
these commenters argued that the proposed regulations would result in
the identification of more schools than required by the statute. One
commenter was concerned that the number of schools identified within
this category would overwhelm State title I staff that support school
improvement, leading to inadequate support for such schools. Another
commenter noted that the law requires identification of the lowest-
performing five percent of title I schools, but failed to recognize the
law also requires identifying schools for targeted support, and said
that the proposed regulations require school identification based on
subgroup status, which would result in States exceeding what the
commenter believed to be a statutory limit of five percent. One
commenter asserted that proposed Sec. 200.19(b) violated section
[[Page 86139]]
1111(e)(1)(B)(iii)(V) of the ESEA because it specifies requirements for
differentiating schools for targeted support and improvement.
Discussion: Section 1111(c)(4)(C)(iii) and section 1111(d)(2)(A) of
the ESEA, as amended by the ESSA, require a State to use its method for
annual meaningful differentiation, based on all indicators, to identify
any public school in which one or more subgroups of students is
consistently underperforming, so that the LEA for the school can ensure
that the school develops a targeted support and improvement plan.
Section 1111(d)(2)(D) further requires that, if a subgroup of students
in a school, on its own, has performed as poorly as all students in the
lowest-performing five percent of title I schools that have been
identified for comprehensive support and improvement, the school must
be identified for targeted support and improvement and implement
additional targeted supports, as described in section 1111(d)(2)(C).
Given these explicit statutory requirements regarding the schools that
must be identified for targeted support and improvement, which are
incorporated into Sec. 200.19(b), we disagree with commenters who
asserted that the requirements in this regulatory provision are not
explicitly authorized by the statute. Further, we disagree with
comments asserting that Sec. 200.19(b) is inconsistent with section
1111(e)(1)(B)(iii)(V) of the ESEA; Sec. 200.19(b) does not prescribe a
specific methodology to meaningfully differentiate or identify schools.
Rather, it simply clarifies the two types of schools that the statute
requires to be identified for targeted support and improvement. States
retain flexibility to determine precisely how they will identify these
schools. For example, States have discretion to determine how they will
identify schools with subgroups that are performing as poorly as
schools that are in the lowest-performing five percent of title I
schools. Although we appreciate the commenters' concerns about the
limited capacity of States and LEAs to support all identified schools,
because the requirements regarding which schools to identify for
targeted support and improvement are statutory (section 1111(d)(2)(A)
and (D) of the ESEA), we decline to make the suggested changes.
However, we recognize that language in Sec. 200.19(b)(1) allowing
States to identify, at the State's discretion, schools that miss the 95
percent participation rate requirement for all students or a subgroup
of students, within the category of schools with consistently
underperforming subgroups identified for targeted support, conflated a
statutory requirement and regulatory flexibility. While, under Sec.
200.15(b)(2)(iii), States retain the option to identify such schools
for targeted support and to require these schools to implement the
requirements under Sec. 200.22, we are removing the reference to these
schools in Sec. 200.19(b)(1) because schools with low participation
rates may not necessarily meet the State's definition of consistently
underperforming subgroups.
Changes: We have removed language in Sec. 200.19(b)(1) that
referred to schools identified under Sec. [thinsp]200.15(b)(2)(iii).
Low-Performing Subgroup
Comments: One commenter was concerned that the requirement to
identify schools with subgroups performing as poorly as the lowest-
performing five percent of title I schools would require States to
generate summative ratings for individual subgroups of students. The
commenter noted that under ESEA flexibility, the commenter's State
identified the lowest-achieving five percent of schools solely on the
basis of academic proficiency rates of the all students group. Another
commenter noted that the statute refers to subgroups performing as low
as the lowest-performing five percent of title I schools, but does not
require that States look at the results for the all students group or
use a summative rating in identifying schools.
Discussion: We understand the commenters' concern that a State may
need to undertake additional analysis at the subgroup level to identify
when an individual subgroup is performing as poorly as students in the
lowest-performing five percent of title I schools. The statute requires
that States identify schools based on its system of annual meaningful
differentiation which relies on multiple measures; therefore, an
approach that only considered academic proficiency rates would be
inconsistent with the ESEA, as amended by the ESSA. We generally agree
with the commenters that States may take different approaches to
identify a school with at least one subgroup that is as low performing
as the lowest-performing five percent of title I schools, but section
1111(d)(2)(C) requires that a State identify schools with low-
performing subgroups based on the same methodology it uses to identify
the lowest-performing five percent of title I schools. We are revising
the regulations to clarify that States must use the same approach to
identify schools with low-performing subgroups as they do to identify
the lowest-performing five percent of all title I schools.
The regulations do not require reporting of subgroup-specific
summative determinations. However, they do require a consistent
approach in order to ensure that States are meeting the requirement in
section 1111(d)(2)(C) of the ESEA, as amended by the ESSA, to identify
each school with an individual subgroup whose performance on its own
would result in the school's identification in the lowest-performing
five percent of title I schools.
Changes: We have revised Sec. 200.19(b)(2) to remove the
requirement that a State compare each subgroup's performance to the
summative rating (now summative determination in the final regulations)
of all students in the lowest-performing five percent of title I
schools in order to identify schools with low-performing subgroups.
Instead, States must use the same methodology they use to identify the
lowest-performing five percent of title I schools under Sec.
200.19(a)(1) to identify schools with low-performing subgroups.
Comments: One commenter stated that the proposed regulations helped
clarify the statutory requirements around identifying schools for
targeted support and improvement and additional targeted support, but
encouraged the Department to provide States with additional flexibility
in identifying such schools. A few commenters objected to the
Department's proposed definition of low-performing subgroups. They said
the proposed definition ignores statutory provisions that limit this
group of schools to a subset of those identified for targeted support
and improvement because they also include consistently underperforming
subgroups. Other commenters suggested that the requirement to
separately identify schools for targeted support and improvement and
additional targeted support is inconsistent with the statute. Some
commenters believed that the statute does not contain the requirement
for two separate sets of schools, and that the proposed requirements
require separate identification on separate timelines, adding
significant complexity to accountability systems.
Discussion: Section 1111(c)(4)(C)(iii) of the ESEA, as amended by
the ESSA, requires each State to annually identify schools with
consistently underperforming subgroups for targeted support and
improvement. Separately, section 1111(d)(2)(C) requires each State to
identify for targeted support and improvement schools with any subgroup
of students that, on its own,
[[Page 86140]]
would have resulted in a school's identification as one of the lowest-
performing five percent of title I schools in the State that are
identified for comprehensive support and improvement. These schools
must receive additional targeted support under the law and are
described as schools with low-performing subgroups in the regulations.
We, therefore, believe that these requirements are wholly consistent
with the identification requirements and methodologies specified in the
ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter expressed concern that the proposed
requirements for identifying schools with low-performing subgroups that
receive targeted support and improvement, as well as additional
targeted support, might not be appropriate for high schools, because
most high schools do not receive title I funds and, therefore, the
lowest-performing five percent of title I schools may not contain any
high schools. The commenter recommended that, for the purpose of
identifying schools with low-performing subgroups at the high school
level, States be permitted to measure subgroup performance against the
lowest-performing five percent of all high schools or high-poverty high
schools, rather than comparing performance only to those high schools
identified in the lowest-performing five percent of schools that
receive title I funds.
Discussion: We appreciate the commenter's concern that there may be
few high schools identified within a State's lowest-performing five
percent of title I schools, but section 1111(d)(2)(C) expressly
requires that a State identify for targeted support and improvement any
school with a subgroup that, on its own, would have resulted in the
school's identification as a school in the lowest-performing five
percent of title I schools. For this reason, the Department declines to
make the suggested change.
Changes: None.
Comments: One commenter was unclear about whether, in identifying
schools with low-performing subgroups, the State should be comparing a
subgroup's performance to the performance of the all students group on
individual accountability indicators, or on the indicators
collectively. The commenter suggested the Department clarify the
requirements for school identification broadly, but particularly in
this area.
Discussion: We appreciate the commenter's request for
clarification. We are revising Sec. 200.19(b)(2) to specify that
schools with low-performing subgroups must be identified using all
indicators and the same methodology the State uses to identify its
lowest-performing five percent of title I schools. We will consider
providing further clarification in non-regulatory guidance to support
States in identifying each group of schools, consistent with applicable
statutory and regulatory requirements.
Changes: We have revised Sec. 200.19(b)(2) to clarify that schools
with low-performing subgroups are identified by applying the State's
methodology for identifying its lowest-performing schools to individual
subgroups.
Comments: Several commenters expressed concern that the lack of a
cap on the number of schools that could be identified as having low-
performing subgroups that receive targeted support and improvement, as
well as additional targeted support, may result in exceeding a State's
capacity to support effective school improvement or hindering efforts
to create robust statewide systems of support that are tailored to
local needs and goals. Some commenters suggested capping the number of
schools that could be identified for targeted support and improvement
at five to ten percent of title I schools.
Discussion: Under the regulations, as under the statute, States
have flexibility to design their systems for annual meaningful
differentiation in a way that takes into account the requirement to
address the needs of low-performing subgroups as well as State capacity
to support meaningful and effective school improvement. Given that the
ESEA, as amended by the ESSA, requires identification of all schools
that fall within the various identification categories, we do not
believe that providing a cap on the number or percentage of schools
that are identified for targeted support and improvement, as well as
additional targeted support, would be consistent with the statute.
Changes: None.
Comments: One commenter expressed concern that setting a threshold
at the lowest-performing five percent of title I schools to identify
schools with low-performing subgroups for targeted support and
improvement that also receive additional targeted support could be
detrimental to students with disabilities because it might not require
a generally high-performing school to address the needs of a particular
subgroup until its performance dropped to the level of the lowest-
performing five percent of title I schools.
Discussion: We believe that the concerns of the commenter are
addressed in significant part by the requirements that States identify
any schools with a consistently underperforming subgroup and schools
with a low-performing subgroup for targeted support and improvement.
This requirement will help ensure that any school in which the students
with disabilities subgroup is underperforming receives support even if
the subgroup is not performing as poorly as the lowest-performing five
percent of title I schools.
Changes: None.
Methodology To Identify Consistently Underperforming Subgroups
Comments: Many commenters supported proposed Sec. 200.19(c)(1),
which requires States to consider each subgroup's performance over no
more than two years in identifying schools with consistently
underperforming subgroups for targeted support and improvement, because
the regulation would ensure prompt recognition of underperforming
subgroups so that students in those subgroups receive timely and
appropriate supports to improve student outcomes, particularly because
many of these subgroups have been historically underserved. However,
many commenters opposed two years as an arbitrary timeline for
identifying consistently underperforming subgroups. Others stated that
the Department was exceeding its legal authority, with some of these
commenters pointing specifically to section 1111(e)(1)(B)(iii)(V) of
the ESEA, as amended by the ESSA, which provides that nothing in the
ESEA authorizes or permits the Department to prescribe the specific
methodology used by States to meaningfully differentiate or identify
schools under title I, part A. Some of these commenters noted that
identifying schools with a single subgroup underperforming for only two
years would result in the over-identification of schools, replicate the
identification of schools under NCLB, and overstretch the capacity of
States and districts to support identified schools. One commenter also
noted that using just two years of data could increase the likelihood
of misidentification because the State would not be able to ensure that
the data used was valid and reliable. These commenters generally
suggested that the Department remove all specific timeline
considerations from the requirements.
As an alternative, one commenter suggested that a State be
permitted to identify schools based on whether an individual subgroup
had been low-performing on the majority of current year indicators or
demonstrated low
[[Page 86141]]
levels of performance on the same indicator over three years,
consistent with the flexibility for States to average a school's data
over three years under proposed Sec. 200.20. One other commenter
suggested requiring a State to consider at least three years of data in
identifying schools with consistently underperforming subgroups, while
another suggested allowing a State to determine its own timeline of no
more than four years, consistent with other requirements to identify
schools and evaluate a school's performance on relevant exit criteria
after no more than four years.
Discussion: The Department appreciates support from commenters who
agreed that identifying schools with consistently underperforming
subgroups based on two years of data is essential to ensuring prompt
recognition of, and support for, such subgroups of students. We believe
that this benefit, which is consistent with the focus of title I on
closing achievement gaps, outweighs the risk of over-identifying
schools, particularly because a longer timeline could permit entire
cohorts of low-performing students to exit a school before the school
is identified for targeted support and improvement. However, we
appreciate that a State may, due to the specific design of the State's
accountability system, require flexibility in order to consider the
performance of subgroups of students over more than two years. We,
therefore, have revised the regulations to permit a State to consider
student performance over more than two years, in certain circumstances.
Specifically, to ensure that students in subgroups that are
underperforming in schools that have not yet been identified for
targeted support and improvement will receive support and that a State
will meet the requirement in section 1111(c)(4)(A)(i)(III) of the ESEA,
as amended by the ESSA, we are revising Sec. 200.19(c)(1) to require
that a State that proposes to use a longer timeframe demonstrate how
the longer timeframe will better support low-performing subgroups of
students to make significant progress in achieving long-term goals and
measurements of interim progress, in order to close statewide
proficiency and graduation rate gaps. In response to commenters who
believe that provisions in Sec. 200.19(c)(1) were not explicitly
authorized in the statutory text, these regulations are being issued in
accordance with the Secretary's rulemaking authority under GEPA, the
DEOA, and section 1601(a) of the ESEA, as amended by the ESSA, and need
not be specifically authorized by the statutory text. Further, issuing
this requirement is a proper exercise of the Department's rulemaking
authority as revised Sec. 200.19(c)(1) falls squarely within the scope
of, and is necessary to reasonably ensure compliance with section
1111(c)(4), which requires statewide accountability systems to be
designed to improve student academic achievement and school success, as
well as with the purpose of title I of the ESEA, to provide all
children significant opportunity to receive a high-quality education
and to close educational achievement gaps. For these reasons, the
regulation does not violate section 1111(e) of the ESEA, as amended by
the ESSA. Moreover, we do not agree that proposed or revised Sec.
200.19(c)(1) is inconsistent with section 1111(e)(1)(B)(iii)(V) because
the regulation does not require the State to use a specific methodology
in identifying schools with consistently underperforming subgroups.
More specifically, revised Sec. 200.19(c)(1) permits a State to
consider subgroup performance over a longer timeframe if it makes the
required demonstration.
Changes: Section 200.19(c)(1) has been revised to allow a State, in
order to identify schools with one or more consistently underperforming
subgroups, to consider a school's performance among each subgroup of
students in the school over more than two years, if the State
demonstrates that a longer timeframe will better support low-performing
subgroups of students to make significant progress in achieving long-
term goals and measurements of interim progress in order to close
statewide proficiency and graduation rate gaps, consistent with section
1111(c)(4)(A)(i)(III) of the Act and Sec. 200.13.
Comments: A few commenters supported the proposed definitions,
including the option for a State-determined definition, of consistently
underperforming subgroups under Sec. 200.19(c)(3). Some commenters
recommended removing all of the proposed definitions in Sec.
200.19(c)(3) because the Department does not have the authority to
require States to choose one of these definitions. Others suggested
that the Department make it clear that the proposed definitions are
optional. These commenters generally cited section 1111(c)(4)(C)(iii)
of the ESEA, as amended by the ESSA, which allows a State to determine
what constitutes consistent underperformance, and one commenter cited
section 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA,
which provides that nothing in the ESEA authorizes the Secretary to
prescribe the specific methodology States use to meaningfully
differentiate schools.
Discussion: The Department's regulations provide States with a
number of options for identifying schools with consistently
underperforming subgroups of students in a way that promotes equity and
ensures compliance with one of the stated purposes of title I--to close
educational achievement gaps--as well as with the requirement for
accountability systems to be designed to improve student academic
achievement and school success. The regulations allow a State to
propose its own definition of consistently underperforming subgroups,
so long as that definition considers each school's performance among
each subgroup of students and is based on all the indicators used for
annual meaningful differentiation, consistent with the weighting
requirements for such indicators. As such, the regulation is a proper
exercise of the Department's rulemaking authority (see further
discussion under the heading Cross-Cutting Issues). We do not agree
that Sec. 200.19(c)(3) is inconsistent with section 1111(c)(4)(C)(iii)
or 1111(e)(1)(B)(iii)(V) of the ESEA, as amended by the ESSA, because
the regulation does not require the State to use a specific methodology
in identifying schools with consistently underperforming subgroups.
However, in reviewing the comments, the Department has determined
that some of the definitions proposed in Sec. 200.19(c)(3) were
unclear or inconsistent with the proposed requirement in Sec.
200.19(c)(2) to consider each indicator used for annual meaningful
differentiation. Accordingly, we are revising Sec. 200.19(c)(2)-(3)
for clarity to ensure that: (1) Each State's methodology to identify
schools with a consistently underperforming subgroup must be based on
all indicators a State uses for annual meaningful differentiation; and
(2) States defining consistently underperforming subgroups on the basis
of long-term goals or measurements of interim progress also consider
indicators for which the State is not required to establish goals or
measurements of interim progress. In this way, States defining a
consistently underperforming subgroup on the basis of its long-term
goals and indicators can, for example, develop a methodology that
considers all goals and indicators, even if identification for targeted
support and improvement is made only on the basis of a single goal or
indicator.
Changes: We have revised Sec. 200.19(c)(2)-(3) to clarify that all
definitions of consistently
[[Page 86142]]
underperforming subgroups must be based on all indicators in the
accountability system, so that a State's methodology examines a
school's performance across all indicators, even if a subgroup's
performance against the State's measurements of interim progress and
long-term goals or performance on a single indicator is sufficient to
trigger identification of the school for targeted support and
improvement.
Comments: Several commenters specifically opposed the options for
defining consistently underperforming subgroups of students in proposed
Sec. 200.19(c)(3)(ii)-(iv), because States would be able to use a
definition that includes a relative threshold for identification rather
than an absolute standard and, consequently, only schools with the very
lowest-performing subgroups would be identified.
Discussion: We appreciate the commenters' concern that the use of a
relative measure may narrow the definition of consistently
underperforming subgroups depending on the range of performance across
measures within a State. Therefore, while we are retaining a State's
flexibility to propose a State-determined definition, we are removing
the proposed options for identifying consistently underperforming
subgroups of students that included relative measures, such as the size
of performance gaps between the subgroup and State averages.
Changes: We have removed the definitions in proposed Sec.
200.19(c)(ii) through (iv) of the final regulations.
Comments: Many commenters suggested requiring all States to
consider a subgroup's performance against the State's long-term goals
and measurements of interim progress, as described under
200.19(c)(3)(i), in determining whether a subgroup is consistently
underperforming.
Discussion: Sections 1111(c)(4)(C)(iii) and 1111(d)(2)(A) of the
ESEA, as amended by the ESSA, require that States consider a subgroup's
performance on all of the indicators in identifying schools with
consistently underperforming subgroups for targeted support and
improvement. Because only two of these indicators--the Academic
Achievement indicator and the Graduation Rate indicator--must be based
on a State's long term goals and measurements of interim progress, a
methodology for identifying consistently underperforming subgroups that
looked only at long-term goals or measurements of interim progress
would not be consistent with the statute.
Changes: None.
Comments: One commenter suggested that the Department provide
States with two additional options for identifying consistently
underperforming subgroups: (1) Comparing a subgroup's performance
against the average performance among all students, or the highest
performing subgroup, in the school, and (2) comparing a subgroup's
performance against the all students group, or the highest performing
subgroup, in the LEA. The commenter also recommended that these
additional options be used in tandem with a method based on an absolute
measure, such as a subgroup's performance against a State's long-term
goals and measurements of interim progress.
Discussion: We appreciate the commenter's suggestion and believe
that a State could propose either of the options suggested by the
commenter under final Sec. 200.19(c)(3)(ii) so long as its proposal
also met the requirements of 200.19(c)(1)-(2). A State could also
propose to use one of these options in concert with a subgroup's
performance against a State's long-term goals and measurements of
interim progress. Because these approaches could already be proposed by
a State as part of a State-determined definition of consistently
underperforming subgroup, we decline to add these specific options to
the regulations.
Changes: None.
Comments: While a few commenters recommended that the Department
remove the requirement under proposed Sec. 200.19(c)(2) regarding the
use of indicators, other commenters asked the Department to clarify
that States must consider a subgroup's performance on each indicator,
including indicators of School Quality or Student Success, in
determining which schools have consistently underperforming subgroups.
Specifically, commenters were concerned that a State could consider
performance only on a single indicator, such as Academic Achievement,
but not other indicators in identifying schools with consistently
underperforming subgroups.
Discussion: As previously discussed in the second summary of
changes in the ``Methodology to Identify Consistently Underperforming
Subgroups'', the Department has modified the regulations to clarify
that a State must establish a definition of consistently
underperforming subgroups that is based on all of the indicators, and
that a school need not be underperforming on every indicator in order
to be identified for targeted support and improvement. In other words,
although a State's definition must examine a subgroup's performance on
all indicators, a school may be identified based on having a subgroup
that is underperforming on any one (or more) of those indicators. For
example, although a State cannot systematically look only at each
subgroup's performance on the Academic Achievement indicator to
identify schools with low-performing subgroups (it must look at
performance on all the indicators under Sec. 200.14), it may identify
an individual school for targeted support and improvement if a subgroup
in that school is underperforming on the Academic Achievement
indicator. We appreciate the commenters' concern that this requirement
was not sufficiently clear in the proposed regulations.
Changes: We have revised Sec. 200.19(c)(2)-(3) to clarify that all
definitions of consistently underperforming subgroups must be based on
all indicators in the accountability system, such that a State's
methodology examines performance across all indicators, even if a
subgroup's performance against the State's measurements of interim
progress and long-term goals or low performance on a single indicator
is sufficient to trigger identification of the school for targeted
support and improvement.
Comments: A few commenters suggested that the Department require a
State's definition of consistently underperforming subgroups to result
in the identification of more schools for targeted support and
improvement than the State identifies for targeted support and
improvement due to low-performing subgroups.
Discussion: The statute requires each State to identify two
categories of schools--those with consistently underperforming
subgroups for targeted support and improvement and those with low-
performing subgroups for targeted support and improvement that must
also receive additional targeted support. We believe requiring one
group to be larger than the other would be arbitrary and inconsistent
with the requirements to identify all schools that meet the applicable
definitions. Consequently, we decline to set parameters around the
number of schools that must be identified in either category.
Changes: None.
Comments: One commenter suggested requiring that a State's method
for identifying consistently underperforming subgroups be
understandable by all stakeholders to promote transparency.
[[Page 86143]]
Discussion: We agree that it is important for stakeholders,
including schools, educators, and parents to understand a State's
methodology for identifying consistently underperforming subgroups. In
its State plan and in the description of its system of annual
meaningful differentiation on its State report card under Sec. 200.30,
each State must describe its methodology for identifying schools with
consistently underperforming subgroups. Therefore, we decline to add an
additional consultation or reporting requirement.
Changes: None.
Timeline
Comments: One commenter supported the proposed requirements in
Sec. 200.19(d)(1) that States must identify: (1) Schools for
comprehensive support and improvement at least once every three years,
beginning with identification for the 2017-2018 school year; (2)
schools with one or more consistently underperforming subgroups for
targeted support and improvement annually, beginning with
identification for the 2018-2019 school year; and (3) schools with one
or more low-performing subgroups for targeted support and improvement
that must also receive additional targeted support when it identifies
schools for comprehensive support and improvement, beginning with
identification for the 2017-2018 school year. Many commenters, however,
strongly opposed the proposed timelines because they would require
States to use data from the 2016-2017 school year to identify schools
by the beginning of the 2017-2018 school year. These commenters
generally encouraged the Department to move the timeline back one year,
so that States must identify schools for the first time by the
beginning of the 2018-2019 school year. A handful of commenters also
encouraged the Department to move the timeline for identifying schools
with consistently underperforming subgroups for targeted support and
improvement back one year, to the beginning of the 2019-2020 school
year.
Commenters believed that the delayed timelines they proposed were
necessary to allow States to engage in more robust consultation with
stakeholders, to better align with the Department's intended State plan
submission and review timeline, and to ensure consistency with sections
1111(c)(4)(D)(i) and 1111(d)(2)(D) of the ESEA, as amended by the ESSA.
In particular, commenters were concerned that schools would be
identified on the basis of results generated under States' prior
accountability systems, using existing indicators with a heavy emphasis
on test-based data, rather than the broader range of academic and non-
academic indicators required by the ESEA, as amended by the ESSA. They
suggested that the originally proposed timeline would not allow States
to meaningfully establish systems--including taking the time to design
new indicators to satisfy the requirements of the Student Success or
School Quality indicator--and collect information on new indicators
that had not previously been part of the accountability system.
Some commenters also encouraged the Department to allow States,
under the proposed extended implementation timelines, to maintain their
lists of identified schools from the 2016-2017 school year into the
2017-2018 school year consistent with the flexibility for the 2016-2017
school year under the ESSA transition provisions.
Discussion: We agree that extending the timelines for
identification of schools for improvement would better support full and
effective implementation of the statewide accountability systems,
consistent with the requirements of the ESEA, as amended by the ESSA,
and are revising the regulations accordingly. The Department also
anticipates releasing non-regulatory guidance to support States in
using the 2017-2018 school year as a transition year, and to ensure
that States continue to support low-performing schools during this
time.
Changes: We have revised Sec. 200.19(d), and made conforming
revisions throughout the final regulations, to allow States to: (1)
Identify schools for comprehensive support and improvement no later
than the beginning of the 2018-2019 school year; (2) identify schools
with low-performing subgroups for targeted support and improvement that
also must receive additional targeted support no later than the
beginning of the 2018-2019 school year, based on data from the 2017-
2018 school year, and (3) allow States to identify schools with
consistently underperforming subgroups for targeted support and
improvement no later than the beginning of the 2019-2020 school year.
We have made also made additional clarifying edits, including
renumbering and reorganizing this section, that do not change the
substance of the requirements. Additionally, given revisions to the
deadlines for submission of consolidated State plans, if a State chose
to submit its plan in the first application window, it is possible the
State may be able to begin their process for identifying schools for
comprehensive and targeted support and improvement sooner than the
required timeline in order to take advantage of the new multi-measure
accountability systems established under the ESSA more quickly.
Comments: Some commenters supported the requirement to identify
schools for comprehensive and targeted support and improvement by the
beginning of the school year in order to give schools sufficient notice
and planning time to implement appropriate interventions. One commenter
recommended moving identification up by one week so that teachers know
a school's status before school starts.
Other commenters opposed the requirement to identify schools by the
beginning of each school year, primarily because they believed the
requirement does not take into account State timelines for the
collection, validation, and reporting of the data that will be used to
identify schools. Some commenters recommended alternatives to the
requirement that States identify schools by the beginning of the school
year. For example, some commenters suggested requiring that schools be
identified no later than one month after school starts, by the end of
the first quarter of the school year, in the fall, by December 31 of
each year, or on a State-determined timeline developed in consultation
with stakeholders and submitted with State plans.
Some commenters opposed any specific timeline for school
identification because they asserted the statute does not identify a
point during the school year by which identification must occur.
Discussion: While we understand the challenges associated with
making accountability decisions by the beginning of the school year, we
believe that, given the time required for planning and implementing
high-quality school improvement plans that include meaningful
consultation with stakeholders, it is imperative that districts and
schools know they have been identified for comprehensive or targeted
support and improvement before the beginning of the school year. To
that point, we are revising the regulation to clarify that it is
preferable for State to identify schools as soon as possible,
particularly so LEA and school staff have this information while they
are engaged in other planning for the school year. Further, we believe
that requiring identification no later than the start of the school
year is necessary to reasonably ensure compliance with section 1111(d)
of the ESEA, as amended by the ESSA, which requires that States develop
and implement
[[Page 86144]]
plans aimed at improving student performance. It therefore falls
squarely within the scope of title I, part A of the statute, consistent
with section 1111(e) of the ESEA, as amended by the ESSA, and within
our rulemaking authority under GEPA, the DEOA, and section 1601(a) of
the ESEA, as amended by the ESSA.
Changes: We have revised Sec. 200.19(d)(2)(i) to clarify that a
State should identify schools for comprehensive or targeted support and
improvement as soon as possible, but no later than the beginning of the
school year for each year in which it identifies schools.
Comments: Some commenters stated that because cohort graduation
rates include students who graduate at the end of the summer following
the regular school year, it would not be feasible to use graduation
rate data from one school year to identify schools at the beginning of
the next school year.
Discussion: We recognize that the use of the preceding year's
adjusted cohort graduation rate data will be difficult given the
inclusion of summer graduates. For this reason, we are revising the
regulations to permit States to lag graduation rate data by one year
for the purposes of school accountability, including the identification
of low graduation rate high schools and calculation of the Graduation
Rate indicator. Additionally, in revising these regulations, we are
making additional edits to clarify and streamline the regulatory
requirements for the use of preceding data in school identification.
Changes: We have revised Sec. 200.19(d)(2) to clarify that States
generally must use data from the preceding school year to identify
schools for comprehensive and targeted support and improvement by the
beginning of each school year, but may use data from the year
immediately prior to the preceding year to calculate the Graduation
Rate indicator and to identify high schools with low graduation rates
for comprehensive support and improvement.
Section 200.20 Data Procedures for Annual Meaningful Differentiation
and Identification of Schools
Averaging Data
Comments: None.
Discussion: The Department is concerned that the use of both the
terms ``combining'' and ``averaging'' in proposed Sec. 200.20(a) is
confusing because it suggests that using data from multiple grades
involves a different procedure than using data from multiple school
years. Both Sec. 200.20(a)(1) and (a)(2) enable States to include
greater numbers of students and students in each subgroup in data
calculations for school accountability, by adding up the total number
of students in a given subgroup from the current school year and the
previous two school years, and by adding the total number of students
in a given subgroup across each grade in a school. For example, a State
using chronic absenteeism as a School Quality or Student Success
indicator and selecting to combine data across school years and grades
would add the number of students in the school that missed 15 days or
more in each of the past three school years, and divide that number by
the total number of students in the school, summed across each of the
past three years--resulting in an indicator based on averages across
both school years and grades. To clarify that the data procedures for
combining data across grades are the same as averaging data across
grades (i.e., in both cases a State would ``combine'' data in order to
produce an averaged result), we are revising Sec. 200.20(a)(1) by
replacing the term ``averaging'' with the term ``combining'' in each
place that it appears, while maintaining the term ``averaging'' to
describe the general concept in Sec. 200.20(a). We are also revising
Sec. 200.20(a)(1)(A) to specifically clarify that in combining data
across multiple schools years for purposes of calculating a school's
performance on each indicator and determining whether a subgroup of
students in a school meets the State's minimum n-size, the State's
uniform procedure for combining data must sum the total number of
students in each subgroup of students in a school described in Sec.
200.16(a)(2) across all available years.
Further, as discussed in response to comments on Sec. 200.19, we
believe the proposed regulations were not sufficiently clear about
which school-level data could be considered over multiple years--the
measures that are included in a particular indicator used for annual
meaningful differentiation, or a school's overall determination. We are
revising Sec. 200.20(a) to clarify that the indicators may be averaged
over up to three school years or across all grades in a school, and
that these indicators are subsequently used for differentiation and
identification of schools. Further, we are revising Sec. 200.20(a), as
previously discussed in response to comments on Sec. 200.15, to
clarify that a State may average school-level data for the limited
purpose of meeting the requirement in Sec. 200.15(b)(2), and the
adjusted cohort graduation rate for purposes of identifying high
schools with low graduation rates. Any further clarification of these
requirements will be provided in non-regulatory guidance.
Changes: We have revised Sec. 200.20(a) to (1) be more consistent
and clear in using the term ``averaging'' to describe generally how
school-level data may be used over multiple years or school grades and
``combining'' to describe the procedures in Sec. 200.20(a)(1) and (2);
(2) to specify that in averaging data across years a State must sum the
total number of students in each subgroup of students across all school
years for purposes of calculating school performance on the indicators
and whether a particular subgroup meets the State's minimum n-size; and
(3) to clarify the purposes for which a State may average data across
years: Calculating indicators used for annual meaningful
differentiation, meeting the requirement under Sec. 200.15(b)(2), and
identifying low graduation rate high schools.
Comments: One commenter suggested that proposed Sec. 200.20
require that the procedure used for averaging data across school years
and combining data across grades be identified in LEA report cards, in
addition to State report cards.
Discussion: Section 200.32(a)(3) requires each State and LEA report
card to describe, as part of the description of the accountability
system, the State's uniform procedure for averaging data across years
or across grades consistent with Sec. 200.20.
Changes: None.
Comments: One commenter recommended allowing States to average date
used for accountability purposes for more than three school years.
Discussion: The Department's proposal gives States the flexibility
to combine data across years or grades because averaging data in this
manner can increase the data available to consider as part of
accountability systems, both improving the reliability of
accountability designations and increasing the number of subgroups in a
school that meet the State's minimum n-size (e.g., because adding
together up to three cohorts of students for whom there is available
data potentially triples the number of students with valid data,
consistent with final Sec. 200.20(a)(1)(A)). The Department believes
that averaging data over more than three school years is inconsistent
with current practice and regulation, ill-aligned with the requirements
for school identification under the statute (e.g., the identification
of schools for comprehensive support and improvement at least once
every three years), and increases the risk of inappropriately masking
current-year
[[Page 86145]]
school performance--increasing the risk that low-performing schools are
not identified in a timely fashion.
Changes: None.
Comments: Commenters supported the proposed requirement that States
continue to report data for a single year, without averaging, on State
and LEA report cards, even if a State averages data across years. Other
commenters supported the language in this section that allows States to
average data across school years to meaningfully differentiate schools.
Commenters noted this flexibility allows States to have more meaningful
accountability determinations for smaller schools, while also
minimizing the number of schools that move in or out of a particular
status from year to year due to n-size limitations.
Discussion: We appreciate the commenters' support for these
provisions and agree that this flexibility is an important tool for
States in designing effective systems of school accountability.
Changes: None.
Comments: Some commenters felt that the ESEA, as amended by the
ESSA, does not authorize the Department to regulate on data averaging
and that decisions about data averaging should remain with the States.
Other commenters objected to the proposed requirement that States
continue to report data that is not averaged for each indicator on
State and LEA report cards even if a State averages data across years
for accountability purposes (Sec. 200.20(a)(1)(ii)(B)). The commenters
asserted that reporting data that is not averaged undermines the
purpose of averaging, which is to obtain a more statistically valid and
reliable measure of performance than shorter timeframes such as a
single year, and that States electing to average data over three years
should report a rolling average for each indicator each year.
Discussion: The proposed data averaging procedures are intended to
provide States with limited additional flexibility to increase the data
available to consider in the accountability system, thereby improving
the reliability of accountability determinations and increasing the
number of subgroups in a school that meet the State's minimum n-size.
These rationales are not as relevant to reporting, where the key goal
is to inform parents and other stakeholders (e.g., teachers, principals
or other school leaders, local administrators) of the performance of
specific students rather than cohorts of students averaged over
multiple years.
Further, we believe the requirement to use the same uniform data
averaging procedure for all public schools is necessary to ensure that
the Statewide accountability system is applied in a fair and consistent
manner to all public schools in a State. Additionally, the requirement
to report data for a single year, even if a State averages data for
accountability purposes, is necessary to ensure compliance with the
requirement in section 1111(h) of the ESEA that report cards be
presented in an ``understandable and uniform format.'' Accordingly, the
parameters that the regulation places on a State's use of data
averaging fall squarely within the scope of section 1111 of the ESEA,
as amended by the ESSA, consistent with section 1111(e), and constitute
an appropriate exercise of the Department's rulemaking authority under
GEPA, the DEOA, and section 1601(a) of the ESEA (see further discussion
under the heading Cross-Cutting Issues).
Changes: None.
Partial Enrollment
Comments: Some commenters objected to the use of the term
``enroll'' in proposed Sec. 200.20(b) instead of ``attend,'' which is
the term used in the statute.
Discussion: The Department believes that enrollment, rather than
attendance, is a better measure of determining which students a school
should be held accountable for, both because schools have a
responsibility to promote and ensure regular attendance and because
including students in accountability systems on the basis of attendance
could create an incentive to discourage low-performing students from
attending school, which is contrary to the purpose of title I to
provide all children significant opportunity to receive a fair,
equitable, and high-quality education, and to close educational
achievement gaps. For this reason, the Department declines to make
changes to Sec. 200.20(b).
Changes: None.
Comments: Commenters also objected to the requirement that students
enrolled for more than half of the year be included in the calculation
of school performance for accountability purposes, in part because it
represents a significant change from the ``full academic year''
requirements under the NCLB. Other commenters sought additional
flexibility for States or LEAs to use existing methods or definitions
for determining what constitutes partial enrollment or to develop their
own definitions; including, for example, the percentage of time a
student is in the school building.
Discussion: The requirement that the performance of any student
enrolled for at least half of the school year be included on each
indicator in the accountability system is based on section
1111(c)(4)(F) of the ESEA, as amended by the ESSA.
Changes: None.
Comments: A few commenters supported the proposed regulations in
Sec. 200.20(b)(2)(ii) for ensuring students are included in graduation
rate calculations if they exit school and were only enrolled in a high
school for part of the school year. Other commenters supported adding a
requirement, in order to ensure all students are included in the
calculation of graduation rates, to provide each State the authority to
reassign students to schools for calculating adjusted cohort graduation
rates when implementing the partial attendance requirements of ESSA.
Discussion: We appreciate the support of commenters for these
provisions and agree that it is critical to ensure accurate calculation
of adjusted cohort graduation rates. While we disagree that the
regulations should be amended to provide a State will sole
responsibility to reassign students to a different cohort, we note that
Sec. 200.20(b)(2) requires that if a student who was partially
enrolled exits high school without receiving a regular diploma and
without transferring to another high school that grants such a diploma
during the school year, the State establishes a process, described
further under 200.34, that the LEA must use to assign the student to
the cohort of a particular high school. In addition, Sec.
299.13(c)(1)(A)-(B) requires each State receiving funds under part A of
title I to assure in its State plan that--in applying the approach
under Sec. 200.20(b) that its LEAs include students who are enrolled
in the same school for less than half of the academic year and who exit
high school without a regular diploma and without transferring into
another high school that grants such a diploma in the calculation of
adjusted cohort graduation rates--all students are included in the
denominator of the calculation either for the school in which the
student was enrolled for the greatest proportion of school days while
enrolled in grades 9 through 12, or for the school in which the student
was most recently enrolled.
Changes: None.
Sections 200.21 and 200.22 Comprehensive and Targeted Support and
Improvement
Comments: Several commenters provided general support for the
clarification in the proposed regulations regarding the actions to be
taken to support and improve schools identified for comprehensive and
targeted support
[[Page 86146]]
and improvement, including State and local flexibility to determine the
appropriate interventions for struggling schools.
Discussion: We appreciate the general support for the regulations
on comprehensive and targeted support and improvement.
Changes: None.
Comments: Several commenters opposed the requirement that a State
notify each LEA with a school identified for comprehensive support and
improvement no later than the beginning of the school year, with one
commenter stating that the proposed timeline is unreasonable given that
identified schools may use the first year for planning and need not
implement improvement plans and another recommending that States
instead be permitted to develop their own notification timelines as
part of their State plans.
Discussion: A clear, regular timeline for identification of schools
is critical to meet the needs of students, who are likely to have been
poorly served for years before their schools are identified for
improvement and whose risk of educational failure only increases if
identification is further delayed. As previously discussed under Sec.
200.19, we also believe that given the time required for planning and
implementing high-quality school improvement plans that include
meaningful consultation with stakeholders, it is imperative that
districts and schools know they have been identified for support and
improvement as soon as possible, but no later than the beginning of the
school year. Moreover, States and LEAs have faced, and generally met,
an even earlier school identification timeline for the past decade
under NCLB.
Changes: For consistency with revisions to Sec. 200.19(d)(2)(i),
we are revising Sec. 200.21(a) and Sec. 200.22(a)(1) to clarify that
a State should notify each LEA with an identified school of such a
school's identification as soon as possible, but no later than the
beginning of the school year.
Notice to Parents: Comprehensive and Targeted Support and Improvement
Comments: Many commenters supported the Department's proposed
requirements regarding notice to the parents of students enrolled in
the schools identified for comprehensive and targeted support and
improvement, including an explanation of how parents can become
involved in the development and implementation of the support and
improvement plan.
Some commenters supported the requirements but suggested additional
modifications to the proposed notice requirements, including defining
``promptly'' so as to specify a timeline for notifying parents (e.g.,
no later than 30 or 60 days following identification), extending notice
requirements to cover students as well as parents, and requiring LEAs
to pilot their notices (potentially in collaboration with available
parent or family engagement centers) to ensure they are easily
understandable by diverse parents.
Several commenters, however, stated that the proposed parental
notification requirements exceeded the Department's authority under the
ESEA, as amended by the ESSA, and recommended eliminating any language
not in the statute or making Sec. 200.21(b)(1)-(b)(3) permissive
rather than required.
Discussion: We appreciate those comments in support of our proposed
notification requirements. We decline to further define terms (e.g.,
``promptly'') or to otherwise expand requirements related to parental
notification because we believe States should have flexibility, in
consultation with their LEAs, to determine a notification process that
meets local needs and circumstances. At the same time, we believe the
requirements in Sec. 200.21(b)(1)-(3) are necessary to ensure that
LEAs and schools, respectively, are able to comply with the
requirements in section 1111(d)(1)(B) regarding the development and
implementation of comprehensive support and improvement plans, and in
section 1111(d)(2)(B) regarding the development and implementation of
targeted support and improvement plans, ``in partnership with
stakeholders,'' including parents. Accordingly, these requirements fall
squarely within the scope of section 1111(d) of the ESEA, as amended by
the ESSA, consistent with section 1111(e), and within the Department's
rulemaking authority under GEPA, the DEOA, and section 1601(a) of the
ESEA, as amended by the ESSA (see further discussion regarding the
Department's rulemaking authority under the heading Cross-Cutting
Issues). We, therefore, decline to revise these notice requirements.
Changes: None.
Comments: Several commenters made suggestions regarding the content
of the notice to parents required by Sec. Sec. 200.21(b) and
200.22(b), including specifying any low-performing subgroup or
subgroups of students that led to the school's identification, and
describing available supports and interventions for students who are
below expected levels in math, reading, or ELP.
Discussion: Sections 200.21(b) and 200.22(b) require the notice to
include, among other requirements, the reason or reasons for the
identification, including, for a school that is identified for targeted
support and improvement, the specific subgroup or subgroups that led to
the school's identification. However, we believe the LEA is unlikely to
have information on available supports and interventions for low-
performing students at the time of initial parental notification, in
part because a key purpose of such notification is to involve parents,
in collaboration with other stakeholders, in decisions about the
supports and interventions for such students that will be included in
comprehensive or targeted support and improvement plans, as applicable.
Changes: None.
Comments: A few commenters suggested a change to the requirement
that parental notification of a school's identification for
comprehensive or targeted support and improvement include, if
applicable, the subgroup or subgroups that led to the school's
identification because it could reveal personally identifiable
information. These commenters recommended that the regulations cross-
reference the provision in Sec. 200.16(b) establishing a minimum
subgroup size for protection of personally identifiable information.
Discussion: Section 200.16(b) requires that a school is only held
accountable for subgroup performance if that subgroup meets a State-
determined minimum subgroup size sufficient to yield statistically
reliable information for each purpose for which disaggregated data are
used, including for purposes of reporting information under section
1111(h) of the ESEA, as amended by the ESSA, or for purposes of the
statewide accountability system under section 1111(c) of the ESEA, as
amended by the ESSA. Consequently, any notice to parents that includes
the subgroup or subgroups that led to a school's identification would
not include a subgroup that did not meet the minimum subgroup size,
thereby protecting personally identifiable information.
Changes: None.
Comments: Some commenters suggested specific modifications to
proposed Sec. 200.21(b)(2) regarding written and oral translation of
notices to parents. In particular, rather than requiring oral
translation when written translation may not be practicable, some
commenters suggested requiring LEAs to secure written translations for
at least the most populous language other than English in a school that
is identified for support and improvement. One
[[Page 86147]]
commenter suggested that the final regulations should require the
translation of those notices consistent with the Civil Rights Act of
1964 and Executive Order 13166. Another commenter felt that the
regulations should require written notice and not rely on oral
translations. However, another commenter suggested that oral
translations and alternate formats should be required only to the
extent practicable. Several commenters suggested that the phrase ``to
the extent practicable'' should be clarified. One commenter requested
that all LEAs consider it to be practicable to translate notices into
American Indian, Alaska Native, and Native Hawaiian languages. This
commenter also suggested the Department provide assistance in either
funding or procuring services that will allow States to enforce the
translation requirements. A few commenters stated that if a notice is
not translated, it should include information for how a parent can
request free language assistance from the school or district.
Other commenters opposed the specific requirements regarding
written and oral translation because they believe there is no statutory
authority for the requirement. One commenter specifically stated that
this is an issue that should be left to the States.
Discussion: The statute and regulations require that, before a
comprehensive or targeted support and improvement plan is implemented
in an identified school, the LEA or school, as applicable, must develop
such a plan in partnership with stakeholders, including parents. In
order to ensure that parents are meaningfully included in this process,
Sec. Sec. [thinsp]200.21(b) and 200.22(b) require an LEA to provide
notice to parents of the school's identification that is not only
understandable and clear about why a school was identified, but also
enables parents to be engaged in development and implementation of the
comprehensive or targeted support and improvement plan, as required by
the statute. These requirements provide greater transparency and help
parents understand the need for and the process for developing a
school's comprehensive or targeted support and improvement plan, so
that they can meaningfully participate in school improvement activities
and take an active role in supporting their child's education.
Accordingly, we believe that the requirements regarding written and
oral translations fall squarely within the scope of, and are necessary
to ensure compliance with sections 1111(d)(1)(B) and 1111(d)(2)(B) of
the ESEA, as amended by the ESSA, and therefore constitute a proper
exercise of the Department's rulemaking authority under GEPA, the DEOA,
and section 1601(a) of the ESEA and are consistent with section 1111(e)
(see further discussion under the heading Cross-Cutting Issues).
We also disagree with commenters that we should require only
written translations and not allow for oral translations, or that we
should require oral translations and alternate formats only to the
extent practicable. Parents with disabilities or limited English
proficiency have the right to request notification in accessible
formats. Whenever practicable, written translations of printed
information must be provided to parents with limited English
proficiency in a language they understand. However, if written
translations are not practicable, it is practicable to provide
information to limited English proficient parents orally in a language
that they understand. This requirement is consistent with Title VI of
the Civil Rights Act of 1964 (Title VI), as amended, and its
implementing regulations. Under Title VI, recipients of Federal
financial assistance have a responsibility to ensure meaningful access
to their programs and activities by persons with limited English
proficiency. It is also consistent with Department policy under Title
VI and Executive Order 13166 (Improving Access to Services for Persons
with Limited English Proficiency).
We decline to further define the term ``to the extent practicable''
under these regulations, but remind States and LEAs of their Title VI
obligation to take reasonable steps to communicate the information
required by the ESEA, as amended by the ESSA, to parents with limited
English proficiency in a meaningful way.\24\ We also remind States and
LEAs of their concurrent obligations under Section 504 and title II of
the ADA, which require covered entities to provide persons with
disabilities with effective communication and reasonable accommodations
necessary to avoid discrimination unless it would result in a
fundamental alteration in the nature of a program or activity or in
undue financial and administrative burdens. Nothing in ESSA or these
regulations modifies those independent and separate obligations.
Compliance with the ESEA, as amended by the ESSA, does not ensure
compliance with Title VI, Section 504 or title II.
---------------------------------------------------------------------------
\24\ For more information on agencies' civil rights obligations
to Limited English Proficient parents, see the Joint Dear Colleague
Letter of Jan. 7, 2015, at Section J. (http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf).
---------------------------------------------------------------------------
Changes: None.
Comments: While a small number of commenters supported the proposed
accessibility requirements generally, several of the commenters
expressed concern that the requirements do not sufficiently ensure that
parents and other stakeholders are able to access the notices and
documentation and information when it is posted on Web sites. Of the
commenters expressing concern, several discussed the accessibility of
parent notices provided on LEA Web sites, particularly for individuals
with disabilities.
Discussion: For a detailed discussion about accessibility of Web
sites, please see the discussion below in Sec. Sec. 200.30 and 200.31.
Changes: None.
Comments: None.
Discussion: Proposed Sec. 200.21(b)(3) required notice of a
school's identification for comprehensive support and improvement in an
alternative format accessible to a parent or guardian who is an
individual with a disability, upon request. The term ``parent'' is
defined in section 8101(38) of the ESEA, as amended by the ESSA. Under
this definition, a ``parent'' includes a legal guardian or other person
standing in loco parentis (such as a grandparent or stepparent with
whom the child lives, or a person who is legally responsible for the
child's welfare). Including the term ``guardian'' in Sec. 200.21(b)(3)
is unnecessary and redundant.
Changes: We have revised Sec. 200.21(b)(3) by removing the
reference to a guardian.
Comments: One commenter suggested that a review of notices be part
of Federal and State monitoring of the requirements under title I of
the ESEA, as amended by the ESSA.
Discussion: The Department appreciates and will take this comment
into consideration when developing plans for monitoring State and local
accountability systems under the ESEA, as amended by the ESSA.
Changes: None.
Needs Assessment: Comprehensive Support and Improvement
Comments: Many commenters expressed general support for the
proposed regulations in Sec. 200.21(c) requiring that, for each
identified school, an LEA conducts a needs assessment in partnership
with stakeholders (including principals and other school leaders,
teachers, and parents). Many of these commenters suggested the
regulations would be
[[Page 86148]]
strengthened by ensuring LEAs partner with a broader array of
stakeholder groups, such as: Students, public health and health care
professionals, community-based organizations, faith-based
organizations, local government, institutions of higher education,
businesses, and intermediary organizations. Some suggested the
stakeholders engaged in this endeavor also include specific types of
teachers and leaders, such as childhood educators and leaders working
with children prior to school entry, career and technical educators,
and specialized instructional support personnel. Several commenters
expressed concern about the opportunity for limited English proficient
families to fully participate in the needs assessment; one of these
commenters recommended that the regulations require LEAs to provide
interpretation services in order for parents to have a meaningful
opportunity to participate in the process.
Discussion: We appreciate the support from commenters for the
proposed needs assessment requirements. The regulations require LEAs to
partner with the same stakeholders with whom they are required to
partner for purposes of developing the comprehensive support and
improvement plan when they conduct the needs assessment that will
inform that plan--principals and other school leaders, teachers, and
parents. Although we encourage LEAs to partner with a broad range of
stakeholders when developing and implementing a robust needs
assessment, we believe LEAS should have discretion regarding the
inclusion of additional groups or individuals in this work. LEAs must
provide language assistance, consistent with their obligations under
title VI, in order for limited English proficient families to
participate meaningfully in the needs assessment.
Changes: None.
Comments: Some commenters suggested that a comprehensive needs
assessment examine other measures in addition to those described in
Sec. 200.21(c)(1)-(c)(4). For instance, many commenters recommended
requiring the needs assessment to include measures of school climate
(e.g., chronic absenteeism; suspension; bullying and harassment). One
commenter suggested the needs assessment also include the school's
existing interventions, including how they are being implemented and
their effectiveness. Several commenters suggested changes specific to
Sec. 200.21(c)(4) regarding the optional examination of the school's
performance on additional, locally selected indicators. One such
commenter suggested adding a requirement that locally selected
indicators be supported, to the extent practicable, by the strongest
evidence that is available and appropriate to the identified school.
One commenter recommended that States be given discretion to specify
which additional local indicators should be included in the needs
assessment in order promote uniform requirements for needs assessments
used by LEAs. Finally, one commenter stated that the Department does
not have the authority to specify the minimum elements of a needs
assessment.
Discussion: The Department agrees with the commenters who indicated
that the regulations should require LEAs, in partnership with
stakeholders, to examine additional measures in a needs assessment. The
needs assessment should examine the school's unmet needs, including the
needs of students; school leadership and instructional staff; the
quality of the instructional program; family and community involvement;
school climate; and distribution of resources, including results of the
resource inequity review. We believe these additions allow for the
needs assessment to include measures of school climate and the school's
existing interventions, as recommended by commenters.
We disagree, however, with commenters' suggested revisions
regarding the optional use of a school's performance on additional,
locally selected indictors. Section 200.21(c)(4) allows, at the LEA's
discretion, examination of an identified school's performance on
additional, locally selected measures that are not included in the
State's system of annual meaningful differentiation and that affect
school outcomes in the school. We do not want to reduce local
discretion on these measures for use in the needs assessment by adding
specific requirements in the areas suggested by the commenters.
Consequently, we decline to regulate further in this area.
We also disagree with commenters who indicated that the Department
lacks authority to specify the minimum requirements of the needs
assessment. We believe these requirements are necessary to reasonably
ensure that the needs assessment is meaningful and results in the
development of a support and improvement plan that meets all
requirements for such plans and will ultimately meet the statutory goal
of improving student achievement and school success and closing
academic achievement gaps. Accordingly, the regulation constitutes a
proper exercise of the Department's rulemaking authority under GEPA,
the DEOA, and section 1601(a) of the ESEA and falls squarely within the
scope of section 1111(d), consistent with section 1111(e) (see further
discussion under the heading Cross-Cutting Issues).
Changes: We have revised Sec. 200.21(c) to require the needs
assessment to include an examination of the school's unmet needs,
including the unmet needs of students; school leadership and
instructional staff; the quality of the instructional program; family
and community involvement; school climate; and distribution of
resources, including results of the resource inequity review. We have
also renumbered the paragraphs in this subsection to accommodate the
substantive revision.
Comments: One commenter suggested adding a needs assessment
requirement for targeted support and improvement schools that would
include an assessment of school climate and safety.
Discussion: The statute does not require a school identified for
targeted support and improvement to conduct a needs assessment, but we
encourage LEAs to consider conducting a needs assessment for such
schools in order to develop an effective support and improvement plan
tailored to local needs.
Changes: None.
Comments: None.
Discussion: In proposed Sec. 200.21(c)(4), the needs assessment
may examine, at the LEA's discretion, the school's performance on
additional, locally selected indicators that are not included in the
State's system of annual meaningful differentiation under Sec. 200.18
and that affect student outcomes in the identified school. In order to
clarify that the term ``locally selected indictors'' is separate and
apart from the accountability indicators described in Sec. 200.14, we
have changed the term to ``locally selected measures.''
Changes: We have revised Sec. 200.21(c)(5), as renumbered, to say
that an LEA may examine locally selected measures.
Comprehensive and Targeted Support and Improvement Plans: In General
Comments: One commenter claimed that the Department does not have
the authority to promulgate regulations that specify the minimum
elements of comprehensive support and improvement support plans.
Discussion: The regulations clarify and provide additional detail
regarding how an LEA must comply with the requirements in section
1111(d)(1)(B)(i)-(iv) of the ESEA, as amended by the ESSA, which
establish
[[Page 86149]]
the basic elements of a comprehensive support and improvement plan. We
believe these regulatory provisions are necessary to reasonably ensure
that each comprehensive support and improvement plan meets the
statutory requirements for such plans and ultimately meets the
statutory goal of improving student achievement and school success and
closing educational achievement gaps and therefore fall squarely within
the scope of title I, part A of the statute. Moreover, the regulations
ensure compliance with these key statutory provisions while maintaining
significant flexibility for LEAs by, for instance, offering examples of
evidence-based interventions an LEA might implement but leaving the
selection of appropriate interventions to LEAs. Accordingly, the
regulation constitutes a proper exercise of the Department's rulemaking
authority under GEPA, the DEOA, and section 1601(a) of the ESEA and
does not violate section 1111(e) (see further discussion under the
heading Cross-Cutting Issues).
Changes: None.
Comments: One commenter suggested that the regulations clarify that
States and districts can implement comprehensive support and
improvement plans that address not only a school in need of
comprehensive support and improvement but also the schools that feed
students into that school.
Discussion: While Sec. 200.21(d) requires that each LEA develop
and implement a comprehensive support and improvement plan only for
each identified school, an LEA may choose to consider supporting
schools that feed into identified schools. Given this existing
flexibility, we do not believe further regulation is necessary.
Changes: None.
Comments: A few commenters suggested requiring a comprehensive
support and improvement plan to address how the LEA will build
sufficient teacher and leader capacity to effectively implement
interventions.
Discussion: We appreciate the intentions of the commenters in
recommending changes to support teachers and leaders in their
implementation of comprehensive support and improvement plans but
believe that further requirements in this area would not be consistent
with the significant discretion afforded to schools by the ESEA, as
amended by the ESSA, in the development and implementation of such
plans.
Changes: None.
Comments: One commenter suggested adding new requirements for
comprehensive support and improvement plans regarding the effective
implementation of evidence-based interventions, while another commenter
suggested recommended schools share data on the implementation of
selected interventions with LEAs to support an evaluation of the
intervention's impact.
Discussion: We believe Sec. 200.21(d)-(f) already provides for a
continuous improvement process that would support the effective
implementation of interventions selected as part of a comprehensive
support and improvement plan, including stakeholder participation,
State monitoring of plan implementation, and more rigorous
interventions and State support if an identified school does not meet
exit criteria.
Changes: None.
Comments: One commenter suggested strengthening the requirements
for monitoring schools identified for targeted improvement and support
by revising Sec. 200.22(c) so that targeted support and improvement
plans include, at a minimum, annual performance and growth benchmarks.
The plan should also require a demonstration of sustained improvement
against benchmark goals over at least two years before a school is
exited from targeted support and improvement.
Discussion: We believe Sec. Sec. 200.22(c)-(e) already require a
meaningful continuous improvement process for schools implementing
targeted support and improvement plans, and decline to regulate further
in this area.
Changes: None.
Comments: Several commenters suggested that the targeted support
and improvement plans required in Sec. 200.22(c) should include
interventions designed for the specific subgroups of students
identified as consistently underperforming rather than for all of the
lowest-performing students. One commenter asserted that if a targeted
support and improvement school has both consistently underperforming
and low-performing subgroups, the students in these groups should be
considered the lowest-performing students to whom interventions should
be tailored.
Discussion: We appreciate the comments suggesting that the
Department require targeted support and improvement plans to focus on
interventions tailored to specific subgroups. We decline to make this
change, however, in order to maintain consistency between these
regulations and the applicable non-discrimination legal requirements.
To that end, we are clarifying in Sec. 200.22(c)(7) that the resource
inequity review required for a school with low-performing subgroups
must identify and address resource inequities, but not the effects of
any identified inequities on the low-performing subgroups.
Changes: We have revised Sec. 200.22(c)(7) to eliminate the
requirement that the resource inequity review address the effects of
identified inequities on each low-performing subgroup in the school.
Comments: Several commenters suggested revising proposed Sec.
200.22(c)(3)(ii) regarding the school's performance on additional,
locally selected indicators that are not included in the State's system
of annual meaningful differentiation under Sec. 200.18 and that affect
student outcomes in the identified school. Recommended changes include
requiring that, to extent practicable, locally selected indicators be
supported by the strongest available evidence, distinguish between
schools, predict performance, and are amenable to intervention.
Discussion: We appreciate the intentions of the commenters in
recommending changes designed to strengthen the impact of locally
selected measures described in Sec. 200.22(c)(3)(ii), but believe that
further requirements in this area would not be consistent with the
significant discretion afforded to schools by the ESEA, as amended by
the ESSA, in the development and implementation of targeted support and
improvement plans.
Changes: None.
Comments: One commenter suggested adding to Sec. 200.22(c)(3) a
new requirement to consider the implementation and effectiveness of
existing interventions when developing a targeted support and
improvement plan.
Discussion: We appreciate the intention of the commenter in
recommending changes designed to strengthen targeted support and
improvement plans, but believe that further requirements in this area
would not be consistent with the significant discretion afforded to
schools by the ESEA, as amended by the ESSA, in the development and
implementation of targeted support and improvement plans.
Changes: None.
Stakeholder Engagement: Comprehensive and Targeted Support and
Improvement Plans
Comments: Many commenters expressed support for the required
involvement of key stakeholders--including principals and other school
[[Page 86150]]
leaders, teachers, and parents--in the development and implementation
of comprehensive and targeted support and improvement plans, but
recommended the addition of a wide range of other specified
stakeholders in the final regulation, such as school psychologists,
students, and community-based organizations. In addition, one commenter
recommended the addition of language requiring school districts subject
to section 8538 of the ESEA to consult with tribal representatives
before taking action under proposed Sec. Sec. 200.21 and 200.22 (as
well as under proposed Sec. Sec. 200.15(c), 200.19, and 200.24).
Discussion: We appreciate the support for the proposed regulations
regarding stakeholder engagement in plan development and
implementation. We emphasize that the list of stakeholders specified in
the regulations--which mirrors the list provided in section 1111(d) of
the ESEA, as amended by the ESSA--represents the minimum requirements
for the stakeholders who should be engaged in plan development and
implementation, and we encourage LEAs to include additional
stakeholders as appropriate. We are, however, revising the final
regulations in Sec. 200.21(d)(1) to encourage the inclusion of
students, as appropriate, in the development of school improvement
plans. While parents must be included in the development of the plans
and are effective advocates on behalf of their children, we believe
that directly involving students in developing school improvement
plans, particularly in the case of older students, could ensure that a
school's plan represents the perspectives of those who will be most
directly impacted by its implementation. We are also making this
revision to similar provisions in Sec. Sec. 200.15(c)(1)(i) and
200.22(c)(1).
We also agree that the tribal consultation requirement in section
8538 of the ESEA, which requires certain school districts to consult
with tribal representatives before submitting a plan or application
under ESEA-covered programs, applies to comprehensive support and
improvement plans under Sec. 200.21(d). We are therefore adding
language to Sec. 200.21(d)(1) to specify that, for those affected
LEAs, the stakeholders with whom the LEA works to develop the plan must
include Indian tribes.
The requirements of section 8538 do not apply to the needs
assessments under Sec. 200.21(c) because there is no LEA plan or
application that must be submitted. However, because the needs
assessment is an important part of developing a comprehensive support
and improvement plan, we encourage affected LEAs to involve local
tribes in the needs assessment process. The tribal consultation
requirement does not apply to the other provisions requested by the
commenter, either because the regulatory requirements do not apply to
LEAs (proposed Sec. 200.19 contains State requirements, not LEA plan
requirements; proposed Sec. Sec. 200.15(c) and 200.22 apply to school-
level rather than LEA-level plans) or because the LEA application
requirement is not for a covered program (proposed Sec. 200.24
contains application requirements for school improvement funds under
section 1003(a) of the ESEA, which is not a covered program).
Changes: We have revised Sec. 200.21(d)(1) to include Indian
tribes as a stakeholder for LEAs affected by section 8535 of the ESSA,
as amended by the ESSA, and to include students, as appropriate. We
have also revised Sec. Sec. 200.15(c)(1)(i) and 200.22(c)(1) to
include students, as appropriate, in the development of school
improvement plans related to low participation rates and to
identification for targeted support and improvement.
Comments: Comprehensive and targeted support and improvement plans
(as described in Sec. Sec. 200.21(d) and 200.21(c), respectively) must
be developed in partnership with stakeholders. Several commenters
suggested the regulations clarify what is meant by the term
``partnership,'' including by requiring shared decision-making with
families (including training for parents and family members and
specific provisions ensuring the meaningful inclusion of English
learner families), sustained collaboration with equitable participation
by diverse stakeholders, the integration of such partnerships with LEA
and school parent and family engagement policies, and participation in
the plan's monitoring and refinement cycle. One commenter also
requested that the Department urge LEAs to work with stakeholders to
determine whether changes are needed in pre-existing plans that may
have been created without stakeholder engagement.
Discussion: We appreciate the commenters' suggestions to further
define how comprehensive and targeted support and improvement plans are
developed and implemented in partnership with stakeholders, but we
believe the requirements in Sec. Sec. 200.21(d)(1) and 200.22(c)(1)
largely address the concerns and suggestions made by commenters on this
matter.
Changes: None.
Comments: None.
Discussion: Proposed Sec. Sec. 200.21(d) and 200.22(c) stated
that, in developing comprehensive support and improvement plans, each
LEA must describe in the plan how early stakeholder input was solicited
and taken into account in the development of the plan, including the
changes made as a result of such input. It is possible that no changes
are necessary as a result of that input. Therefore, for the sake of
clarity, we are revising the requirement to refer to ``any'' changes
made as a result of input.
Changes: We have revised Sec. Sec. 200.21(d)(1)(i) and
200.22(c)(1)(i) to say ``any changes'' rather than ``the changes made
as a result of such input.''
Evidence-Based Interventions: Comprehensive and Targeted Support and
Improvement Plans
Comments: Many commenters supported the specific examples of
interventions cited in Sec. 200.21(d)(3) or suggested adding a wide
range of other interventions to the final regulations. Some of these
suggestions were similar to interventions already on the list, such as:
Partnering with teacher preparation providers to implement year-long,
clinically rich preparation programs that incorporate residents fully
into instructional and school improvement efforts; expanded learning
time and afterschool programs; and increased access to high-quality,
developmentally-appropriate early education. Other commenters suggested
additional examples not part of the current list, such as: Culturally
responsive modifications to school interventions for underserved
students; strategies to increase family and community engagement; and
innovative instructional models that incorporate high-quality career
technical education. Several commenters also recommended clarifying
certain aspects of the interventions on the proposed list or revising
them to reflect additional requirements or strategies.
Other commenters opposed the inclusion of certain interventions on
the list, citing concerns about the research base and/or effectiveness
of the examples on the list, whether they would necessarily be
appropriate in all local contexts, and whether the appearance of an
``approved'' list in the regulations is consistent with local
discretion to select appropriate interventions responding to local
needs. One commenter recommended striking the list of examples in favor
of simply requiring that interventions meet the definition of
``evidence-based'' under section 8101(21) of the ESEA, as amended by
the ESSA, or revising the
[[Page 86151]]
list to include only those interventions supported by strong, moderate,
or promising evidence, since those three levels are required for any
improvement plans funded by the school improvement funds authorized by
Section 1003 of ESSA.
Discussion: The list of examples in Sec. 200.21(d)(3) is intended
merely to illustrate the types of interventions an LEA may choose to
consider when developing a comprehensive support and improvement plan,
and we recognize that there are many other interventions that an LEA
could select in response to the specific needs of a particular school
and community. The options available to LEAs include any of the
activities and approaches recommended by the commenters, as long as
they meet the requirements of Sec. 200.21(d)(3). For these reasons, we
decline to add or remove any interventions to the non-exhaustive list,
though we are making clarifications to several of the interventions
currently on the list.
Changes: We have revised the final regulations to clarify several
of the examples of interventions in Sec. 200.21(d)(3). For one of
these interventions, strategies designed to increase diversity by
attracting and retaining students from varying socioeconomic
backgrounds, we added students from varying racial and ethnic
backgrounds. In the strategy to replace school leadership, the example
now also includes identifying a new principal who is trained for or has
a record of success in low-performing schools. We clarified the
language regarding the revoking or non-renewing a public charter
school's charter by adding language about public charter schools
working in coordination with the applicable authorized public
chartering agency to revoke or non-renew a school's charter and
ensuring actions are consistent with State charter law and the school's
charter.
Comments: One commenter recommended including in Sec. 200.22(c) a
examples of interventions for targeted support and improvement similar
to that proposed in Sec. 200.21(d)(3) and including in that list: (1)
Increasing access to effective general and special education teachers
and specialized instructional support personnel or adopting incentives
to recruit and retain effective general and special education teachers
and specialized instructional support personnel; and, (2) adopting the
use of multi-tiered systems of support to address academic and
behavioral deficits, including the use of positive behavioral
interventions and supports.
Discussion: The examples of interventions listed in Sec.
200.21(d)(3) are intended, in part, to illustrate the types of broad,
comprehensive reforms that address the needs of an entire school, and
not the narrower, more tailored interventions generally appropriate for
schools identified for targeted support and improvement. Given the
large number of differentiated strategies that may be used in schools
identified for targeted support and improvement, depending on the
specific needs and circumstances of the lowest-performing students in
such schools, we do not believe it would be helpful to create a similar
illustrative list for such schools in the final regulations.
Changes: None.
Comments: Several commenters suggested adjustments to the proposed
requirement in Sec. 200.21(d)(3) and 200.22(c)(4) that comprehensive
and targeted improvement and support plans include ``one or more''
interventions to improve student outcomes in the school that meet the
definition of evidence-based under section 8101(21) of the ESEA, as
amended by the ESSA. Some believe that considering the multitude of
issues facing identified schools, a single intervention is insufficient
to address the root cause of the overall low performance of the school.
Several commenters suggested requiring more than one intervention, such
as requiring two or more interventions that are evidence-based; two or
more interventions for each subgroup identified; and multiple evidence-
based interventions that directly and comprehensively address the
particular root causes of the school's low performance, which may
include interventions that vary by academic subject area or meet the
differing needs of students within a single subgroup.
Discussion: While we believe that the commenters have identified
important issues for LEAs and schools to consider in developing their
improvement plans, we do not believe it is either appropriate or
consistent with local discretion under the ESEA, as amended by the
ESSA, to include additional requirements around the use of evidence-
based interventions in the final regulations.
Changes: None.
Comments: One commenter suggested clarifying the term
``intervention'' in Sec. 200.22(c)(4) by adding regulatory language
that an intervention may include activities, strategies, programs, or
practices.
Discussion: We agree that an intervention may include activities,
strategies, programs, and practices, but decline to define the term
further in the final regulation. However, we have provided further
guidance around the use of evidence-based interventions in non-
regulatory guidance.\25\
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\25\ See: http://www2.ed.gov/policy/elsec/leg/essa/guidanceuseseinvestment.pdf. Non-Regulatory Guidance: Using Evidence
to Strengthen Education Investments.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter recommended requiring that the intervention
or interventions chosen for students instructed primarily through a
Native American language that are included in comprehensive support and
improvement plans are provided through the Native American language of
instruction and do not limit the preservation or use of Native American
languages.
Discussion: Comprehensive and targeted support and improvement
plans are developed in partnership with school leaders, teachers, and
parents, and we encourage stakeholders and LEAs to consider the unique
needs of students in identified schools when choosing appropriate
interventions. However, requiring that supports be provided to students
in a particular language is beyond the scope of these regulatory
provisions, which address support and improvement to a school in
general (see examples in Sec. 200.21(d)(3)), rather than to students
individually.
Changes: None.
Comments: Many commenters expressed general support for the
proposed requirements in Sec. Sec. 200.21(d)(3)(i)-(iv) and
200.22(c)(4)(i)-(iv) regarding the selection of evidence-based
interventions in comprehensive and targeted support and improvement
plans. Some of these commenters also recommended a wide range of
specific changes to these provisions, including, for example,
additional methodological requirements for selecting and using
evidence-based interventions, the use of State-established evidence-
based interventions or a State-approved list of evidence-based
interventions, ensuring that selected interventions respond to the
needs assessment, strengthening local capacity to identify and
implement evidence-based interventions, building evidence through
evaluation of selected interventions, and justifying the use of non-
evidence-based interventions. One commenter suggested changing the
provisions to require that interventions maintain access to well-
rounded education for all students, including access to, and
participation in, music and the arts as well as other well-rounded
education subjects supported by the ESEA, as amended by the ESSA.
[[Page 86152]]
Another commenter recommended that the Department, with assistance from
the Institute of Education Sciences, create a compendium of Federally-
supported rigorous research on effectiveness of interventions.
Some commenters opposed the proposed requirements in Sec.
200.21(d)(3)(i)-(iv) and Sec. 200.22(c)(4)(i)-(iv) regarding the
selection of evidence-based interventions, asserting that these
requirements inappropriately exceed those of the ESEA, as amended by
the ESSA. One commenter stated that many districts do not have the
capability to meet these requirements and may have to rely on costly
external consultants for this purpose. This commenter also noted that
the highest three tiers of evidence in the evidence-based definition
are required only for interventions funded with State-awarded school
improvement grants under section 1003 of the ESEA, as amended by the
ESSA.
Discussion: We appreciate the support of some commenters for the
regulations regarding evidence-based interventions. While we appreciate
the suggested revisions to the language in Sec. Sec. 200.21(d)(3) and
200.22(c)(4), the Department believes, with one exception, that the
current language is clear and declines to amend the regulations.
Specifically, we are revising the provisions in proposed Sec. Sec.
200.21(d)(3)(iv) and 200.22(c)(4)(iii) that stated that an intervention
may be selected from a State-approved list of interventions consistent
with Sec. 200.23(c)(2) to more clearly articulate these optional State
authorities. Specifically, we are revising final Sec. Sec.
200.22(d)(3)(iv) and 200.22(c)(3)(iv) so that it pertains only to
``exhaustive or non-exhaustive'' lists of evidence-based interventions
that may be established by the State and so that it references the
optional State authority in Sec. 200.23(c)(2). We are further
clarifying that, in the case of a State choosing to establish an
exhaustive list of evidence-based interventions under Sec.
200.23(c)(2), the evidence-based interventions in the support and
improvement plan must be selected from that list, while in the case of
a State opting to establish a non-exhaustive list under Sec.
200.23(c)(2), the evidence-based interventions may be selected from
that list. We are also adding Sec. 200.22(d)(3)(v) as a separate
provision to clarify that the evidence-based intervention selected in a
comprehensive support and improvement plan may be one that is
determined by the State, consistent with State law, as described in
section 1111(d)(1)(3)(B)(ii) of the ESEA, as amended by the ESSA, and
Sec. 200.23(c)(3). We believe these revisions help clarify how a State
may utilize the authorities described in Sec. 200.23(c)(2)-(3), and
the distinctions between them. These revisions in no way alter an LEA
or school's discretion to choose an evidence-based intervention from
those included on a State-established list, exhaustive or otherwise.
We disagree with commenters who indicated that Sec. 200.21(d)(3)
exceeds the Department's rulemaking authority. These requirements
clarify how an LEA is to comply with the new and complex statutory
requirement to select and implement evidence-based interventions in
schools identified for comprehensive or targeted support and
improvement; without such clarification, an LEA might have difficulty
meeting this requirement. Moreover, these clarifications of the
statutory requirements are necessary to reasonably ensure that the
selected interventions will advance the statutory goals of improving
student academic achievement and school success and closing achievement
gaps and therefore fall squarely within the scope of section 1111 of
the ESEA, as amended by the ESSA, consistent with section 1111(e).
Accordingly, these requirements constitute an appropriate exercise of
the Department's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA.
Changes: We have revised Sec. Sec. 200.21(d)(3)(iv) and
200.22(c)(4)(iv) to more clearly articulate the distinctions between
the optional State authorities for lists of State-approved
interventions and State-determined interventions, as described in Sec.
200.23(c)(2)-(3), and their impact on the evidence-based interventions
used in school support and improvement plans. Specifically, in the case
of an exhaustive list of interventions established by the State
consistent with Sec. 200.23(c)(2), the intervention must be selected
from that list, while in the case of a State establishing a non-
exhaustive list, the intervention may be selected from that list. In
addition, for comprehensive support and improvement plans, Sec.
200.21(d)(3)(v) clarifies that the intervention may be one that is
determined by the State, consistent with State law, as described in
section 1111(d)(1)(3)(B)(ii) of the ESEA, as amended by the ESSA, and
Sec. 200.23(c)(3).
Equity and Resource Allocation: Comprehensive and Targeted Support and
Improvement Plans
Comments: A number of commenters expressed support for Sec.
200.21(d)(4) and Sec. 200.22(c)(7), which require comprehensive
support and improvement plans and targeted support and improvement
plans for schools with low-performing subgroups that also must receive
additional targeted support to identify and address resource inequities
by reviewing certain LEA- and school-level resources. Other commenters
requested that the Department eliminate these requirements or that it
simply provide illustrative examples of resources that LEAs or schools
might choose to review. Some commenters also suggested that such
reviews might not be permissible under State law or questioned the
Department's authority to require the review of any specific resources.
One commenter specifically stated that the requirements conflicted with
section 8527 of the ESEA, as amended by the ESSA.
Discussion: The Department appreciates the support for the resource
review provisions in the proposed regulations. We believe that
specifying certain types of resources for review is essential for
ensuring that the reviews are meaningful and that they enable LEAs and
schools to meet the statutory requirements for comprehensive support
and improvement plans and targeted support and improvement plans for
schools with low-performing subgroups schools that also must receive
additional targeted support to identify and address resource inequities
(ESEA section 1111(d)(1)(B)(iv), 1111(d)(2)(C)). We also believe that
reviewing the particular resources in Sec. Sec. 200.21(d)(4) and
200.22(c)(7) falls squarely within the scope of section 1111(d) of the
ESEA, as amended by the ESSA, because it is necessary to the
development of support and improvement plans that advance the statutory
goals of improving student academic achievement and school success and
closing educational achievement gaps. Further, the regulations ensure
that these statutory requirements and purposes are met while minimizing
burden on LEAs and schools by focusing on key data that States already
will be collecting and reporting under the ESEA, as amended by the
ESSA. Accordingly, we believe Sec. Sec. 200.21(d)(4) and 200.22(c)(7)
are a proper exercise of the Department's rulemaking authority under
GEPA, the DEOA, and section 1601(a) of the ESEA,
[[Page 86153]]
as amended by the ESSA, and do not violate section 1111(e).
Further, we disagree that the requirement to identify and address
resource inequities by reviewing certain resources violates section
8527 of the ESEA, as amended by the ESSA. That provision states that
nothing in the ESEA authorizes an officer or employee of the Federal
Government ``to mandate, direct, or control'' a State, LEA, or school's
allocation of State or local resources. As the regulations require the
review of certain resources in order to identify and address resource
inequities but do not require that such inequities be addressed in any
particular way, they in no way ``mandate, direct, or control'' the
allocation of State or local resources.
Changes: None.
Comments: A number of commenters recommended changes to the list of
resources reviewed under Sec. Sec. 200.21(d)(4)(i) and
200.22(c)(7)(i), including changes in required and optional elements of
an LEA- or school-level resource review. Suggested elements included,
for example, access to technology, music and art, and specialized
instructional support personnel. Two commenters requested that we re-
designate the examples in proposed Sec. Sec. 200.21(d)(4)(ii)(A)-(C)
and 200.22(c)(7)(ii)(A)-(C)--access advanced coursework, preschool
programs, and instructional materials and technology--as required
elements of resource reviews. One commenter also suggested adding to
the list of required elements data that a State is required to report
under section 1111(h)(1)(C)(viii) of the ESEA, as amended by the ESSA,
which includes measures of school quality such as rates of suspensions
and the number and percentage of students enrolled in preschool
programs and accelerated coursework.
Discussion: We recognize that, as suggested by commenters, there
are numerous examples of resources that contribute to positive
educational outcomes that could be included in either a required or
optional list in Sec. Sec. 200.21(d)(4) and 200.22(c)(7), and we note
that the final regulations would permit an LEA or school to add nearly
any educational resource to its review that it deems important for
supporting the effective implementation of school improvement plans.
We also believe, however, that the final regulations are more
likely to promote meaningful resource reviews by focusing on a discrete
list of required elements while continuing to reserve significant
discretion to LEAs and schools in the conduct of such reviews. For this
reason, we are revising the final regulations to make access to
advanced coursework as well as access to both preschool and full-day
kindergarten required elements of resource reviews. We also are adding
as a required element access to specialized instructional support
personnel, as defined in section 8101(47) of the ESEA, as amended by
the ESSA. Specialized instructional support personnel such as school
counselors are an important resource for creating and maintaining a
safe and positive school climate and it is essential that students in
all schools, but particularly low-performing schools, have access to
those resources.
Finally, we decline to add school climate or suspension rates to
the list of resources for review. Although these are important aspects
of a school that should be evaluated and analyzed, they are not
resources that are allocated. We encourage an LEA conducting a needs
assessment pursuant to Sec. 200.21(c) to examine a school's unmet
needs with respect to school climate, including by reviewing data
reported under section 1111(h)(1)(C)(viii)(I) of the ESEA, as amended
by the ESSA, on rates of in-school suspensions, expulsions, school-
related arrests, referrals to law enforcement, chronic absenteeism, and
incidences of violence, including bullying and harassment.
Changes: We have revised the language in Sec. Sec. 200.21(d)(4)(i)
and 200.22(c)(7)(i) to require that an LEA, or school, include as part
of its resource inequity review, in addition to per-pupil-expenditures
and access to ineffective teachers, access to full-day kindergarten
programs and preschool programs (in the case of an elementary school)
as reported annually consistent with section 1111(h)(1)(C)(viii) of the
ESEA, as amended by the ESSA, advanced coursework, including
accelerated coursework as reported annually consistent with section
1111(h)(1)(C)(viii) of the ESEA, as amended by the ESSA, and
specialized instructional support personnel, as defined in section
8101(47) of the ESEA, as amended by the ESSA, including school
counselors, school social workers, school psychologists, other
qualified professional personnel, and school librarians. We have also
made conforming changes to Sec. 200.21(d)(4)(ii) and Sec.
200.22(c)(7)(ii).
Comments: One commenter requested that the Department expand the
resource inequity review requirements to apply to schools identified
for targeted support and improvement due to one or more consistently
underperforming subgroups.
Discussion: The Department believes that requiring resource reviews
for schools identified for targeted support and improvement would not
be consistent with the ESEA, as amended by the ESSA; nevertheless, we
strongly encourage those schools and their LEAs to include resource
reviews as part of their targeted support and improvement plans.
Changes: None.
Comments: One commenter requested that the Department require that
an LEA, or school, include, with respect to the required review in
Sec. Sec. 200.21(d)(4)(i) and 200.22(c)(7)(i) of per-pupil-
expenditures and ineffective teachers, a review of budgeting and
resource allocation.
Discussion: The Department believes that requiring a review of LEA
and school-level budgeting and resource allocation would be
inconsistent with section 1111(d) of the ESEA, as amended by the ESSA,
which specifies that resource reviews ``may include'' budgeting and
resource allocation decisions.
Changes: None.
Comments: Several commenters supported the requirements in Sec.
200.21(d)(4) and Sec. 200.22(c)(7) but noted concern about the
elimination of the highly-qualified teacher requirements that existed
under the ESEA, as amended by NCLB.
Discussion: The ESSA eliminated the highly-qualified teacher
requirements in NCLB, and we therefore decline to include them.
Changes: None.
Timeline, Plan Approval, and Public Availability: Comprehensive and
Targeted Support and Improvement Plans
Comments: Many commenters supported local discretion to use the
first year following identification for targeted or comprehensive
support and improvement as a planning year, as described in Sec. Sec.
200.21(d)(5) and 200.22(c)(5).
Discussion: The Department appreciates the strong support for the
allowance of a planning year; we agree that it will facilitate the
development and implementation of targeted and comprehensive support
and improvement plans consistent with the requirements of the ESEA, as
amended by the ESSA. To further clarify that schools may begin
implementation of targeted or comprehensive support and improvement
plans during the planning year, we have made revisions to the proposed
requirements in Sec. Sec. 200.21 and 200.22.
Changes: We have revised the language in Sec. Sec. 200.21(d)(5)
and 200.22(c)(5) to clarify that a school identified for comprehensive
or targeted
[[Page 86154]]
support and improvement may begin implementation of its approved plan
during the planning year, or, at the latest, the first full day of the
school year following the school year for which the school was
identified.
Comments: One commenter suggested adding language that an LEA may
identify a new principal, if applicable, during the planning year in
order to encourage districts to thoughtfully plan for leadership
transitions as early as possible.
Discussion: We decline to require the identification of a new
principal during the planning year, the timing of which we believe is a
local decision.
Changes: None.
Comments: Several commenters supported requiring LEAs, consistent
with Sec. Sec. 200.21(d)(6) and 200.22(d)(2), to make comprehensive
and targeted support and improvement plans publicly available,
including to parents consistent with the requirements for notice in
Sec. 200.21(b). Other commenters recommended additional requirements,
including making a hard copy available or providing online access to
the documents at the school for parents who do not have a home
computer.
Discussion: We appreciate the support of commenters for our
proposed regulations regarding the public availability, including to
parents, of comprehensive and targeted support and improvement plans.
We believe these requirements will ensure that plans are accessible to
parents, including those with limited English proficiency needing
language assistance. We encourage but do not require the plan be made
available in a particular format (e.g., via hardcopy or online) unless
that is necessary to meet the requirement for an alternative format
requested by a parent who is an individual with a disability.
Changes: None.
Comments: Several commenters opposed the proposed language in Sec.
200.21(d)(7) requiring school approval of comprehensive support and
improvement plans because they believe that LEAs should retain final
approval authority to ensure that all schools in the district are
treated equally and that no school has veto power over an improvement
plan.
Discussion: The final regulations are consistent with section
1111(d)(1)(B)(v) of the ESEA, as amended by the ESSA, which requires
that a comprehensive support and improvement plan be approved by the
school, LEA and SEA.
Changes: None.
Comments: Several commenters requested clarification regarding the
requirements in Sec. 200.21(e)(1) regarding the State's
responsibilities for comprehensive support and improvement plan
approval and monitoring, with some commenters recommending defining the
term ``periodically'' as it applies to review of plan implementation to
mean at least annually. Similarly, several commenters requested
clarification regarding the requirement in Sec. 200.22(d) regarding
the LEA's responsibilities for plan approval, in particular what it
means to review and approve a targeted support and improvement plan
``in a timely manner.'' Other commenters stated that the review of
improvement plans should include input from State Advisory Panels in
special education.
Discussion: We do not believe it is necessary to further define the
terms ``in a timely manner'' or ``periodically'' in these regulations,
as we believe both States and LEAs should have discretion, consistent
with the ESEA, as amended by the ESSA, to develop timelines related the
development and implementation of comprehensive and targeted support
and improvement plans, respectively, that reflect their needs and
circumstances. We also note that these timelines will naturally be
driven, in part, by the implementation timelines specified in these
final regulations (i.e., plans must be fully implemented no later than
the first day of school in the year immediately following a planning
year/the year for which identified).
Changes: None.
Exit Criteria: Comprehensive Support and Improvement Plans
Comments: Several commenters generally supported the requirements
in Sec. 200.21(f) for exit criteria for schools implementing
comprehensive support and improvement plans. Several other commenters,
however, opposed the proposed regulations on exit criteria, contending
that the Department does not have the authority to promulgate those
regulations, that the regulation violates the provision in section
1111(e)(1)(B)(iii)(VII) of the ESEA, as amended by the ESSA, which
states that the Secretary may not prescribe exit criteria established
by the State, and that the determination of appropriate exit criteria,
as well as the actions that an LEA with a school that does not meet the
exit criteria must take, should be determined by the State. More
specifically, several commenters objected to the regulations on the
basis that they would prevent a State from establishing exit criteria
based on measures other than test scores or graduation rates. One
commenter expressed concern that the exit criteria parameters in the
proposed regulations were not sufficiently rigorous. Finally, a number
of commenters requested that the Department remain silent on the State-
established timeline for exit criteria.
Discussion: The Department appreciates the support for the
requirements related to exit criteria. In response to the comments
suggesting that the States should be permitted to determine exit
criteria, the Department notes that the regulations in Sec. 200.21(f)
allow a State to establish its own exit criteria, requiring only that
those exit criteria fall within two parameters: (1) That they require
improvements in student outcomes; and (2) that a school that meets the
exit criteria no longer meets the criteria for identification as a
comprehensive support and improvement school.
Under these regulations, ``student outcomes'' are not limited to
outcomes on statewide assessments. Accordingly, a State may establish
exit criteria that are based on measures in addition to or other than
test scores, such as, for example, improvements on any indicator in the
accountability system, including a School Quality or Student Success
indicator. States also have flexibility to determine what constitutes
``improvement'' on an indicator, and the Department encourages States
in establishing these parameters to consider whether a school has
sustained improvements and is likely to not be re-identified. We also
believe that the regulations strike the proper balance between setting
safeguards to ensure meaningful exit criteria and providing each State
with ample flexibility to establish the exit criteria most appropriate
for its State context. Further, we believe the regulations are
consistent with section 1111(e)(1)(B)(iii)(VII) of the ESEA, as amended
by the ESSA, because they do not prescribe exit criteria. Rather, the
regulations set broad parameters around exit criteria to ensure that
the criteria are linked with improved schools as opposed to, for
example, arbitrary measures unrelated to student outcomes. A State may
establish whatever exit criteria it believes are appropriate within
those parameters such as, for example, improved performance on the
School Quality or Student Success indicator or improvements in other
student outcomes, as required under section 1111(d)(3) of the ESEA, as
amended by the ESSA. Additionally, we believe that the regulations fall
within the scope of, and are necessary to ensure compliance with, the
requirements in section 1111(d)(3)(A)(i) of the ESEA, which
[[Page 86155]]
requires exit criteria be designed to ensure continued progress to
improve student academic achievement and school success in the State.
As such, we believe these requirements constitute a proper exercise of
the Department's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA, and do not violate section 1111(e) of the ESEA, as
amended by the ESSA.
Additionally, given the balance struck by the regulations, the
Department declines to specify more rigorous parameters for exit
criteria in the final regulations. Further, we note that the regulatory
provision specifying that the State-determined timeline for meeting the
exit criteria may not exceed four years merely restates the statutory
provision in section 1111(d)(3)(A)(i)(I) of the ESEA, as amended by the
ESSA.
Changes: None.
Comments: None.
Discussion: We have determined that the regulations could provide
greater clarity regarding how a State determines that a school no
longer meets the criteria for identification under Sec. 200.19(a).
Specifically, we believe that it is necessary to clarify that a State's
exit criteria must ensure that a school no longer meets the specific
criterion or criteria under which the school was identified, rather
than all of the criteria under Sec. 200.19(a) (e.g., if a school was
identified because it was among the lowest-performing five percent of
title I schools in the State, the exit criteria need not require that
the school improve its graduation rate).
Changes: We have modified the language in Sec. 200.21(f)(1)(ii) to
specify that a State's exit criteria must require that a school no
longer meet the specific criteria under which the school was identified
as a comprehensive support and improvement school.
Comments: One commenter expressed support for the requirement, in
Sec. 299.17(c)(2) of the proposed regulations, that a State make
publicly available the exit criteria it establishes under Sec.
200.21(f).
Discussion: The Department appreciates the support for this
requirement, and believes it would be helpful to further clarify this
requirement by adding it to Sec. 200.21 in the final regulations; we
believe a similar clarification is also helpful in Sec. 200.22(f)(1)
with regard to title I schools with low-performing subgroups of
students identified for targeted support and improvement.
Changes: We have modified the language in Sec. Sec. 200.21(f)(1)
and 200.22(f)(1) to reiterate the requirement in Sec. 299.17(c)(2) and
(5) that a State must make publicly available its exit criteria for
schools identified for comprehensive support and improvement and for
schools with low-performing subgroups of students identified for
targeted support and improvement.
Comments: One commenter noted that the term ``exit criteria'' could
be called ``success criteria'' instead.
Discussion: We retain the proposed terminology in the final
regulations for consistency with the ESEA, as amended by the ESSA, but
note that a State may use whatever term it deems appropriate for its
exit criteria as long as the criteria meet the requirements in Sec.
200.21(f).
Changes: None.
Comments: One commenter asked for clarification on how the
requirements in the regulations with respect to timeline for exiting
interact with the timeline for schools currently implementing
interventions under ESEA flexibility as well as what types of support
and monitoring a State must provide to an LEA with a school that does
not meet the exit criteria.
Discussion: The Department agrees that clarification on the issues
raised by the commenter would be helpful, but intends to address both
issues in non-regulatory guidance rather than the final regulations.
Changes: None.
Comments: Several commenters requested that the Department
eliminate the requirement that an LEA conduct a new needs assessment
for a school implementing a comprehensive support and improvement plan
that does not meet the exit criteria within the State-determined number
of years. Those commenters claimed that the requirement is duplicative,
burdensome, and inconsistent with the statute.
Discussion: The Department believes that a new, high-quality needs
assessment, conducted in partnership with stakeholders, is an essential
foundation for the development and successful implementation of the
amended comprehensive support and improvement plan required by Sec.
200.21(f)(3). Additionally, the requirement is necessary to reasonably
ensure compliance with sections 1111(d)(1)(B)(iii) and 1111(d)(3) of
the ESEA, as amended by the ESSA, because an amended needs assessment
is essential to identifying areas for which improvement is needed in a
school that has failed, after a State-determined number of years, to
meet the State-established exit criteria. For these reasons, we believe
the regulation falls squarely within the scope of section 1111(d) of
the ESEA, as amended by the ESSA, consistent with section 1111(e), and
our rulemaking authority under GEPA, the DEOA, and section 1601(a) of
the ESEA, as amended by the ESSA, and, thus, decline to eliminate this
requirement.
Changes: None.
Comments: A number of commenters suggested changes to Sec.
200.21(f)(3) with respect to the actions an LEA must take if a school
identified for comprehensive support and improvement does not meet the
exit criteria within a State-determined number of years. Specifically,
these commenters requested clarification that the additional
interventions that the LEA must implement in the school may replace or
supplement the existing interventions and that the additional
interventions must address the needs identified by the new needs
assessment, regardless of the level of evidence supporting those
interventions. Some of these commenters were concerned that the
requirement in Sec. 200.21(f)(3)(iii)(B) appeared to require all of
the additional interventions in the amended plan to be supported by
strong or moderate evidence. Finally, one commenter suggested requiring
annual State review of the implementation of the amended comprehensive
support and improvement plan.
Discussion: We agree with the suggestions to clarify that not all
the additional interventions that an LEA implements as part of an
amended comprehensive support and improvement plan for a school that
fails to meet exit criteria must be evidence-based interventions
supported by strong or moderate evidence and is revising the regulation
to reflect this clarification. The Department believes that
interventions with stronger evidence are more likely to lead to success
and, therefore, will maintain the requirement that at least one of the
interventions be supported by strong or moderate evidence. We further
agree that an LEA may either replace or supplement existing
interventions, as determined by the State, and that an LEA should, as
part of its new needs assessment, carefully review whether the existing
interventions have been successful at improving the achievement of its
students, but believe the regulations already are clear on this point.
Finally, the Department declines to amend the regulations to include
annual State review of the implementation of amended comprehensive
support and improvement plans because it believes that the need for
additional monitoring and support for such schools is adequately
addressed by the requirement in Sec. 200.21(f)(5)(ii).
Changes: The Department has amended Sec. 200.21(f)(3)(iii)(B) to
require
[[Page 86156]]
that the additional interventions that an LEA with a school identified
for comprehensive support and improvement that does not meet exit
criteria must implement include one or more evidence-based
interventions that are supported by strong or moderate evidence, but
clarify that the amended plan may also include other rigorous
interventions that are not supported by strong or moderate evidence.
Exit Criteria: Targeted Support and Improvement Plans
Comments: Several commenters supported generally the requirements
in Sec. 200.22(e) for exit criteria, including one who specifically
supported the requirement that an LEA make the exit criteria publicly
available. Several other commenters asserted that the Department does
not have authority to set parameters around exit criteria or that
either the exit criteria or the actions required for a school that does
not meet the exit criteria should be determined by the State or LEA.
Discussion: The Department appreciates the support for the
requirements related to exit criteria in the proposed regulations. We
believe that these requirements fall squarely within the scope of, and
are necessary to reasonably ensure compliance with the requirements in
section 1111(d)(2)(B) of the ESEA, as amended by the ESSA, that schools
identified for targeted support and improvement implement plans that
improve student outcomes and that such plans result in additional
action following unsuccessful implementation after a number of years.
As such, we believe these requirements constitute a proper exercise of
the Secretary's rulemaking authority under GEPA, the DEOA, and section
1601(a) of the ESEA, as amended by the ESSA, and do not violate section
1111(e) (see discussion of the Department's general rulemaking
authority under the heading Cross-Cutting Issues). Further, the
regulations reserve appropriate discretion for LEAs to determine their
specific exit criteria for schools implementing targeted support and
improvement plans.
Changes: None.
Comments: One commenter suggested requiring annual State review of
the implementation of amended targeted support and improvement plans.
Discussion: The Department believes that requiring annual State
review of the implementation of amended targeted support and
improvement plans would be inconsistent with the ESEA, as amended by
the ESSA, which gives LEAs primary responsibility for ensuring the
effective implementation of targeted support and improvement plans. We
also believes that the requirement in Sec. 200.22(e)(2)(iii) that the
LEA increase monitoring and support for school implementing amended
targeted support and improvement plans partly addresses the commenter's
concerns.
Changes: None.
Comments: A number of commenters recommended that the Department
impose a maximum timeline for exit criteria for schools identified for
targeted support and improvement due to one or more consistently
underperforming subgroups. Two commenters suggested aligning the
maximum timeline with the requirement that exit criteria for
comprehensive support and improvement schools not exceed four years;
another suggested requiring a cap of two years, noting that the exit
criteria should be based on the school's progress against benchmark
goals; and one commenter suggested that, if, after three years, a
school has not met the exit criteria for targeted support and
improvement, the State be required to identify it for comprehensive
support and improvement.
Discussion: The Department appreciates the recommendations of the
commenters, each of which is aimed at ensuring that LEAs and States
take meaningful action, over time, to improve outcomes for students in
consistently underperforming subgroups. However, the Department
believes that these recommendations generally are not consistent with
the requirements of the ESEA, as amended by the ESSA, which reserve
significant discretion to LEAs in the development and implementation of
targeted support and improvement plans. The Department also believes
that because the ESEA, as amended by the ESSA, specifies the types of
schools that must be identified for comprehensive support and
improvement, it would not be appropriate to expand this definition to
include schools identified for targeted support and improvement due to
one or more consistently underperforming subgroups that fail to meet
exit criteria. For these reasons, we believe that the regulations
strike the proper balance between establishing safeguards to ensure
meaningful exit criteria and providing each LEA with flexibility to
establish the exit criteria most appropriate for its specific context,
as well as more rigorous consequences for failure to meet those
criteria.
Changes: None.
Comments: A number of commenters recommended that the Department
require that States, rather than LEAs, establish exit criteria or
otherwise eliminate the LEA's control over the exit criteria for
schools identified for targeted support and improvement based on one or
more consistently underperforming subgroups. These commenters were
concerned that the LEA-established exit criteria may conflict with
State policies, including the State's criteria for identifying
consistently underperforming subgroups, may be inconsistent across the
State, and may create burden for LEAs.
Discussion: The Department appreciates commenters' interest in
having States establish exit criteria for this type of school. The
regulation, however, is consistent with the statute, which specifically
grants authority to establish exit criteria for these schools to LEAs
(section 1111(d)(2)(B)(v) of the ESEA). We note that States have
authority to issue rules, regulations, and policies related to title I
of the ESEA, and may exercise that authority in accordance with the
requirements in section 1603 of the statute. A State may use that
authority to issue rules, regulations, or policies that establish
parameters around LEA-established exit criteria.
Changes: None.
Comments: Several commenters recommended requiring a school
identified for targeted support and improvement that does not meet its
exit criteria to conduct a needs assessment.
Discussion: While we encourage States and LEAs to require a needs
assessment as a prerequisite for all school improvement plans--whether
initial or amended--we decline to add such a requirement to the final
regulations because the ESEA, as amended by the ESSA, requires such
needs assessments only for schools identified for comprehensive support
and improvement.
Changes: None.
State Discretion for Certain High Schools
Comments: Several commenters supported proposed Sec. 200.21(g)(1),
under which a State may permit differentiated improvement activities as
part of comprehensive support and improvement plan for certain high
schools identified due to low graduation rates. A number of commenters
recommended various clarifications, including specific terms used in
the provision, such as ``differentiated improvement activities;'' the
specific schools eligible for differentiated treatment; and the extent
of the permitted differentiation, including examples of appropriate
interventions.
[[Page 86157]]
Another commenter suggested that holding high schools serving
significant populations of over-age and credit-deficient student
accountable for meeting targets based on extended-time graduation rates
would better serve these schools and their families than a different
set of labels or interventions. One commenter recommended requiring
States to provide a plan for how accountability will be maintained in
these schools, including the calculation of extended-year adjusted
cohort graduation rate for up to 7 years.
Discussion: We appreciate the support of some commenters for
proposed Sec. 200.21(g)(1) permitting differentiated activities in
certain high schools identified for comprehensive support and
improvement, and agree that additional clarity is needed regarding this
flexibility. The intent of proposed Sec. 200.21(g)(1) was to permit
States discretion, consistent with section 1111(d)(1)(C)(i) of the
ESEA, as amended by the ESSA, to allow differentiated improvement
strategies in its comprehensive support and improvement plans for high
schools with low graduation rates that predominantly serve students (1)
returning to education after having exited secondary school without a
regular high school diploma, or (2) who, based on their grade or age,
are significantly off track to accumulate sufficient academic credits
to meet high school graduation requirements, and not to simply forego
implementation of improvement activities or otherwise reduce
accountability in such schools, as is allowed for small high schools
under proposed Sec. 200.21(g)(2). We also note that LEAs may, and
should, create differentiated improvement plans for such high schools
identified for support and improvement that are based on the school's
needs assessment and specifically designed to address identified needs.
Other comments, such as concern about labels or recommendations for
additional improvement plans, appear to overlook the fact that these
schools are identified for comprehensive support and improvement and
thus must develop and implement comprehensive support and improvement
plans, though they may include differentiated improvement activities in
such plans. We are revising Sec. Sec. 200.21(d) and (g) to reflect
these clarifications.
Changes: We have moved the language regarding differentiated
improvement activities in any high school identified for comprehensive
support and improvement due to a low graduation rate that predominantly
serves students (1) returning to education after having exited
secondary school without a regular high school diploma, or (2) who,
based on their grade or age, are significantly off track to accumulate
sufficient academic credits to meet high school graduation requirements
from Sec. 200.21(g)(1) to 200.21(d)(3)(vi).
Comments: Some commenters supported the provision in Sec.
200.21(g)(2) allowing an SEA to exempt a high school that is identified
for comprehensive support and improvement based on having a low
graduation rate from implementing required improvement activities if it
has a total enrollment of less than 100 students. Several commenters
requested clarification about some of the terms in Sec. 200.21(g)(2),
such as ``total enrollment'' and ``such a school''. A few commenters
recommended requiring a justification for such exemptions in annual LEA
report cards, while others called for notifying parents when identified
schools do not implement improvement plans. Two commenters recommended
that the Department clarify in guidance that these LEAs are still
subject to all other reporting requirements. Other commenters expressed
concern about permitting such exemptions for extended periods of time
or stated that this flexibility is inappropriate for certain schools,
such as schools that predominantly serve students with disabilities or
schools serving students in prison or juvenile justice facilities.
Discussion: We appreciate the support some commenters provided for
State discretion for certain small high schools identified for
comprehensive support and improvement due to low graduation rates. We
agree that the regulations should be clarified to ensure that this
flexibility is provided only for small schools (with fewer than 100
students enrolled) that are identified for comprehensive support and
improvement based on having a low graduation rate; small schools that
are identified for other reasons must develop and implement a
comprehensive support and improvement plan as required by the statute
and regulations. However, we decline to include additional reporting
and notice requirements in these final regulations, as the continued
applicability of all reporting requirements in the statute and
regulations will provide the transparency needed to promote
accountability. We also believe that denying this flexibility to
certain small schools, such as schools predominantly serving students
with disabilities, would not be consistent with the ESEA, as amended by
the ESSA, though we note that this flexibility may not be used to
deprive these students of their rights under the IDEA, Section 504, and
title II of the ADA.
Changes: We have revised Sec. 200.21(g) to clarify that high
schools identified for comprehensive support and improvement based on
low graduation rate with a total enrollment of less than 100 students
are the only high schools permitted to forgo implementation of
improvement activities required by these regulations.
Public School Choice
Comments: Several commenters support the requirements in Sec.
200.21(h) regarding public school choice, while others asserted that
this subsection is not consistent with section 1111(d)(1)(D) of the
ESEA, as amended by the ESSA. One of these commenters objected to
requiring school districts that that are operating under a Federal
desegregation order and wish to offer public school choice consistent
with Sec. 200.21(h) to obtain court approval for choice transfers,
based on the belief that choice options should not interfere with the
operation of desegregation plans. Another commenter objected to what
the commenter appeared to believe is a requirement to offer public
school choice, suggesting that such a requirement would negatively
impact students that are homeless and/or transferring for a number of
other reasons, including students that move mid-year and want to attend
their new neighborhood school.
Discussion: An LEA is required to ``obtain court approval'' for
transfers if it is unable to implement the choice provisions consistent
with the desegregation plan, or where the governing orders specifically
require authorization from the court. The Department anticipates that
courts and responsible agencies will recognize the benefits of allowing
students to transfer from schools identified as needing improvement and
will grant amendments to desegregation orders permitting such transfers
where they would not impede desegregation. We disagree with the
commenter that believes the provision would have a negative impact on
mobile students. An LEA may, but is not required to provide students
with the option to transfer to another public school that is not
identified for comprehensive improvement and support, and no student
would be required to seek or accept such a transfer.
Changes: None.
[[Page 86158]]
Section 200.23 State Responsibilities To Support Continued Improvement
State Review of Available Resources
Comments: Several commenters strongly supported proposed Sec.
200.23(a), which would require each State to periodically conduct a
resource allocation review in each of its LEAs serving a significant
number of schools identified for comprehensive support and improvement
or targeted support and improvement. One commenter observed that
resource inequities identified through such reviews could contribute to
certain LEAs having a disproportionate number of schools identified for
improvement, and that reducing such inequities could improve
achievement for all students.
Discussion: The Department appreciates the support of these
commenters for the proposed regulations and agrees that reducing
inequitable resource allocation practices in LEAs and schools can help
improve student achievement as well as other educational outcomes.
Given the potential impact of these efforts, we are revising the final
regulations to clarify that this periodic review considers the same
resources that are reviewed by an LEA as part of comprehensive support
and improvement plans for schools that are so identified. We are also
revising the final regulations to further clarify that this periodic
review considers ``resources available'' to emphasize that the review
considers how allocation practices ultimately affect the availability
of resources among LEAs and schools.
Changes: We have revised Sec. 200.23(a) to require a State to
periodically review ``resources available'' in LEAs with a significant
number of percentage of schools identified for comprehensive or
targeted support and improvement as compared to all other LEAs in the
State, and in schools in those LEAs as compared to all other schools in
the State, and to clarify that the resources included in this review
must include the same resources an LEA reviews for purposes of a
comprehensive support and improvement plan.
Comments: One commenter requested that the final regulations
clarify the meaning of the term ``significant number of schools'' as
used in proposed Sec. 200.23. Another commenter recommended that the
phrase be revised to read ``significant number or percentage of
schools'' to avoid over-identification of large urban districts for
additional State support.
Discussion: We decline to provide a more precise definition of the
term ``significant number of schools'' because it may vary according to
local circumstances, but we agree that adding ``or percentage'' to the
term is a helpful clarification and are revising the final regulations
accordingly.
Changes: We have revised the regulations to replace the term
``significant number of schools'' with the term ``significant number or
percentage of schools'' throughout.
Comments: One commenter recommended requiring such reviews at least
once every three years, rather than periodically, to encourage
alignment of the reviews with needs assessments for schools identified
for comprehensive support and improvement.
Discussion: We appreciate the commenter's intention of aligning
resource reviews with school identification timelines, but decline to
make the recommended change in recognition that States may need
discretion to account for variations in State identification timelines
as well as capacity to carry out required reviews.
Changes: None.
Comments: One commenter recommended that the Department provide
more specific parameters around the resource allocation reviews
required by proposed Sec. 200.23(a), including the timeline for
reviews, disaggregation of expenditures targeted to specific subgroups
of students, an assessment of student needs, and the inclusion of all
districts for comparison purposes. Another commenter recommended that
in addition to examining resource allocation between LEAs and between
schools, States also look at resource inequities between grades (e.g.,
between preschool and kindergarten).
Discussion: The Department appreciates commenters' desire for more
granular data and information as part of resource reviews, as well as
interest in expanding the comparison categories, but generally declines
to include additional parameters in the final regulations to avoid
increasing State and local burdens in conducting the reviews. We are,
however, revising the language in Sec. 200.23(a) to clarify the
entities to be used for comparison purposes in the review of available
resources.
Changes: We have revised Sec. 200.23(a) to specify that each State
must, with respect to each LEA in the State serving a significant
number or percentage of schools identified for comprehensive support
and improvement or targeted support and improvement, periodically
review resources available between such LEAs and all other LEAs in the
State and between schools in those LEAs and all other schools in the
State.
Comments: One commenter recommended revising proposed Sec.
200.23(a) to include a requirement that States evaluate schools
implementing comprehensive support and improvement plans to determine
whether such schools are improving more quickly than schools with a
comparable student population.
Discussion: We believe that adding an evaluation requirement to the
resource review requirements in the final regulations would impose
significant burden on States unrelated to the resource reviews required
under section 1111(d)(3)(A)(ii) of the ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter opposed the resource allocation reviews
required by proposed Sec. 200.23(a) because they would require States
to review and potentially address teacher distribution issues related
to disproportionate rates of ineffective, out-of-field, or
inexperienced teachers in one or more LEAs or schools. The commenter
also believes that the final regulations should not define
``resources'' for the purpose of the resource allocation reviews
required by section 1111(d)(3)(A)(ii) of the ESEA, as amended by the
ESSA.
Discussion: States, with respect to each LEA in the State serving a
significant number or percentage of schools identified for
comprehensive support and improvement or targeted support and
improvement, will be required to review and take actions to address
differences in rates of ineffective, out-of-field, or inexperienced
teachers in LEAs and schools by Sec. 299.18(c) of the final
regulations and section 1111(g)(1)(B) of the ESEA, as amended by the
ESSA; the resource reviews merely reinforce these actions by requiring
States to periodically review educator data in the context of school
improvement needs. We also believe that defining a minimum set of
resources that must be reviewed supports effective State implementation
of the required resource reviews while also reducing the burden of such
reviews by highlighting readily available resource data collected in
accordance with other requirements under the ESEA, as amended by the
ESSA.
Changes: None.
Comments: One commenter opposed the resource allocation reviews
required by proposed Sec. 200.23(a) on grounds that such reviews could
lead to SEA efforts to override the authority of local school districts
over their own budgets. The commenter expressed further concern that
such SEA actions might not take
[[Page 86159]]
into account the local context for resource allocation decisions.
Discussion: The Department believes that the proposed language
requiring State actions to address resource inequities ``to the extent
practicable,'' which is retained in the final regulations, will
encourage a collaborative approach by States and LEAs in responding to
any identified resource inequities.
Changes: None.
Comments: One commenter opposed proposed Sec. 200.23(a) because of
what the commenter claimed to be the difficulty of disaggregating costs
paid for with general categorical funding.
Discussion: The Department recognizes that disaggregating State and
local expenditures may be challenging, but notes that States and LEAs
must report per-pupil expenditures of Federal, State, and local funds
annually under section 1111(h)(1)(C)(x) of the ESEA, as amended by the
ESSA.
Changes: None.
State Technical Assistance
Comments: One commenter recommended that the final regulations
include language encouraging States to include in the description of
the technical assistance it will provide under proposed Sec. 200.23(b)
an explanation of how it will work with external partners with
expertise in identifying or implementing school improvement strategies.
The commenter believes that external organizations provide a ready
resource that can help build State capacity to provide effective
technical assistance to districts and schools. Another commenter
similarly recommended the addition of language to proposed Sec.
200.23(b)(3) regarding tools for implementing evidence-based
interventions, including practices available through the Department's
Regional Educational Laboratories and Comprehensive Assistance Centers.
Discussion: The Department agrees that external partners and
resources can help States provide more effective technical assistance
and other support to districts and schools, but declines to require or
otherwise specify the use of such partners or resources in the final
regulations. We will take these comments into consideration in
developing non-regulatory guidance related to State-provided technical
assistance.
Changes: None.
Comments: One commenter recommended revisions to proposed Sec.
200.23(b) encouraging States to (1) provide guidance to districts on
how to conduct a school-level needs assessment, with an emphasis on
using assessment results to select evidence-based interventions; (2)
promote the use of existing evidence-based intervention resources,
including the Department's What Works Clearinghouse operated by the
IES; and (3) develop a policy framework for sustainable school
turnaround that includes additional resources, district-level reforms,
tiered intervention strategies, stakeholder engagement, teacher and
principal pipelines, and rigorous evaluation activities.
Discussion: The Department appreciates the commenter's interest in
promoting more effective State support for school improvement, as well
as the potential role of the What Works Clearinghouse in expanding the
use of evidence-based interventions, but declines to require or
otherwise specify additional State-level activities in this area in the
final regulations. We will take these comments into consideration in
developing non-regulatory guidance related to State-provided technical
assistance.
Changes: None.
Comments: One commenter recommended revisions to proposed Sec.
200.23(b) emphasizing that sustained school improvement requires (1)
that evidence-based interventions selected by LEAs and schools are
clearly connected to the findings of the needs assessment; (2)
continuous monitoring of implementation, including through rapid-cycle
impact evaluations; and (3) that States build the evidence base through
piloting of interventions in areas where the evidence base is weak or
no evidence exists.
Discussion: The Department appreciates the commenter's interest in
promoting stronger State support for the use of evidence-based
practices but declines to require or otherwise specify additional
activities in this area in the final regulations. We believe it more
appropriate to discuss these activities in non-regulatory guidance. We
also note that Sec. 200.21(d) requires a comprehensive support and
improvement plan to include one or more evidence-based interventions
that are supported, to the extent practicable, by the strongest level
of evidence that is available and appropriate to meet the needs
identified in the needs assessment.
Changes: None.
Additional State Improvement Actions
Comments: One commenter stated that proposed Sec. 200.23(c)(1),
which provides examples of additional school-level improvement actions
that a State may take in LEAs with a significant number of schools
identified for comprehensive support and improvement that are not
meeting exit criteria or a significant number of schools identified for
targeted support and improvement, is inconsistent with section
1111(e)(1)(B)(iii)(VI) of the ESEA, as amended by the ESSA, which
provides that nothing in the statute authorizes the Secretary, as a
condition of approval of the State plan, to prescribe any specific
school support and improvement strategies for use by States or LEAs.
Two commenters recommended moving the specified interventions to non-
regulatory guidance.
Discussion: The list of interventions in proposed Sec.
200.23(c)(1) is illustrative only, and is intended to provide examples
of the types of meaningful actions a State may take to initiate
additional improvement in any LEA, or in any authorized public
chartering agency, in a school identified for comprehensive support and
improvement or targeted support and improvement that has failed to
respond to other interventions. For this reason, we believe it is
appropriate to provide examples of such actions in regulation rather
than in non-regulatory guidance. The final regulations, like the
proposed regulations, do not require a State to take any of these
actions and thus in no way prescribe any specific LEA or school support
or improvement strategies. Therefore, Sec. 200.23(c)(1)is not
inconsistent with section 1111(e)(1)(B)(iii)(VI) of the ESEA, as
amended by the ESSA. We further note that the additional improvement
actions contemplated by the statue clearly include actions at both the
LEA and school levels. Consequently, we are revising the final
regulations to include examples of LEA-level improvement action
(including reducing the LEA's operational or budgetary autonomy;
removing one or more schools from the jurisdiction of the LEA; or
restructuring the LEA, including changing its governance or initiating
State takeover of the LEA), as well as action a State might take with
regard to an authorized public chartering agency.
Changes: We have revised Sec. 200.23(c)(1) to include examples of
improvement actions a State may take at the LEA level and examples of
improvement actions in an authorized public chartering agency.
Comments: One commenter recommended that the final regulations give
States flexibility to determine the improvement activities to be
carried out under proposed Sec. 200.23(c)(1). Another commenter
recommended removal of the list of interventions in proposed Sec.
200.23(c)(1) because it believes that
[[Page 86160]]
such a list may discourage the use of evidence-based interventions that
would better address the improvement needs of the school identified
through its needs assessment.
Discussion: The list of interventions in proposed Sec.
200.23(c)(1) is intended to provide examples of the types of meaningful
actions a State may take in a chronically low-performing school that
has failed to respond to other interventions. The list is illustrative
only, and we do not believe it will preclude or otherwise discourage
States from considering other types of interventions in such schools,
including evidence-based interventions that respond to schools' needs
assessments. We are, however, revising the school leadership example to
emphasize the importance of selecting new leadership with the skills
and experience needed to turn around low-performing schools. We also
are revising Sec. 200.23(c) to clarify that a State may take the
specified additional school improvement actions only to the extent that
they are consistent with State law.
Changes: We have revised Sec. 200.23(c) to clarify that the
additional improvement actions taken by a State must be consistent with
State law. We also have revised the replacing school leadership example
in 200.23(c)(1) to emphasize the importance of replacing school
leadership with leaders who are trained for, or have a record of,
success in low-performing schools.
Comments: One commenter recommended revising proposed Sec.
200.23(c)(1) to clarify that States may take additional improvement
actions in LEAs with a significant number of schools that are both
identified for targeted support and improvement and not meeting exit
criteria. The commenter believes that, similar to the proposed
parameters for LEAs with a significant number of schools identified for
comprehensive support and improvement, LEAs with schools identified for
targeted support and improvement should be given time for the schools
to improve before State intervention may be triggered. Another
commenter recommended that schools identified for targeted support and
improvement not be subject to the interventions specified in proposed
Sec. 200.23(c)(1); this commenter believes that schools identified for
targeted support and improvement that are not meeting exit criteria are
addressed adequately by the requirement for amended improvement plans
in proposed Sec. 200.22(e)(2).
Discussion: We appreciate the first commenter's desire for
consistent treatment of schools identified for comprehensive support
and improvement and targeted support and improvement that may be
subject to additional improvement action by the State under Sec.
200.23(c)(1). However, the categories of schools to which additional
improvement actions apply are specified by section 1111(d)(3)(B)(i) of
the ESEA, as amended by the ESSA, and the Department does not have the
discretion to modify these categories. Similar considerations apply to
the concern expressed by the second commenter; schools identified for
targeted support and improvement (in an LEA with a significant number
of such schools) are potentially subject to additional improvement
action under the ESEA, as amended by the ESSA, albeit at the discretion
of the State.
Changes: None.
Comments: A few commenters opposed the language in proposed Sec.
200.23(c)(1) authorizing a State to take additional improvement action
in any authorized public chartering agency with a significant number of
schools identified for comprehensive support and improvement that are
not meeting exit criteria or a significant number of schools identified
for targeted support and improvement. One commenter asserted that the
proposed regulation confused the roles of charter authorizers and
charter operators, noting that authorizers are limited to monitoring
school performance and using their non-renewal and charter revocation
authority to close low-performing schools, rather than providing
support and intervention to such schools. The same commenter warned
that the proposed regulation could encourage States to take actions
regarding charter authorizers that are inconsistent with State charter
school law. Another commenter emphasized that the statutory provision
in section 1111(c)(5) of the ESEA, as amended by the ESSA, which
requires ESEA accountability provisions to be implemented for charter
schools in accordance with State charter school law, together with
implementing regulations in proposed Sec. 200.12, are sufficient to
ensure strong accountability for public charter schools, and that
proposed Sec. 200.23(c)(1) would potentially lead to less rigorous
accountability actions by subjecting low-performing public charter
schools to improvement and intervention, rather than revocation and
closure. This commenter further noted that the proposed regulations
could create a disincentive for such agencies to serve high-need
populations or restart low-performing traditional public schools for
fear of reaching the ``significant number'' threshold that might
trigger State intervention. Another commenter stated that the proposed
application of additional State improvement actions to authorized
public chartering agencies would not be consistent with the ESEA, as
amended by the ESSA, which does not include any accountability
provisions for such entities in part A of title I. One commenter
expressed concern that the proposed regulations would encourage
authorizing agencies to revoke the charters of any identified charter
school in an LEA serving a significant number of identified schools, a
decision that might not always be the best approach or consistent with
the requirements of an individual charter.
Discussion: The Department appreciates the concerns expressed by
these commenters, but continues to believe that authorized public
chartering agencies should, consistent with State charter school law,
be subject to the same improvement actions as similarly performing
LEAs. However, we are revising the final regulations to emphasize that
such actions must respect the unique status and structure of charter
school arrangements under State charter school law.
Changes: We have revised Sec. 200.23(c)(1) to clarify that any
action to revoke or non-renew a school's charter must be taken in
coordination with the applicable authorized public chartering agency
and be consistent with the terms of the school's charter.
Comments: One commenter expressed concern that the language in
proposed Sec. 200.23(c)(1) regarding the revocation or non-renewal of
a charter school's charter could be read as authorizing a closure of a
charter school that would not be consistent with the school's charter.
The commenter noted that, for example, the school's charter might call
instead for restarting the schools under new governance or hiring a new
charter school operator. For this reason the commenter recommended
revised language emphasizing that any State-determined intervention
under proposed Sec. 200.23(c)(1) must be consistent with both the
terms of the school's charter and State charter school law.
Discussion: We agree with the commenter's recommendation, and are
revising the final regulations to clarify that any State-determined
action in a charter school under Sec. 200.23(c)(1) must respect the
unique status and structure of charter school arrangements under both
State charter school law and the terms of the school's charter.
Changes: We have revised Sec. 200.23(c)(1) to clarify that any
action to revoke or non-renew a school's
[[Page 86161]]
charter must be taken in coordination with the applicable authorized
public chartering agency and be consistent with both State charter
school law and the terms of the school's charter.
Comments: One commenter recommended the addition of expanded
learning time strategies to the list of school-level improvement
actions in proposed Sec. 200.23(c)(1).
Discussion: We recognize that the use of expanded learning time
strategies may be an important component of a school improvement plan
but decline to make additions to the list of actions in Sec.
200.23(c)(1), which is intended to be illustrative only and does not
constrain a State from taking other actions such as those recommended
by the commenter.
Changes: None.
Comments: Three commenters opposed the provision in proposed Sec.
200.23(c)(2) permitting a State to establish an exhaustive list of
State-approved, evidenced-based interventions for use in schools
implementing comprehensive support and improvement or targeted support
and improvement plans. Two of these commenters stated that this
provision would limit local innovation in identifying and implementing
evidence-based interventions, and noted that there is no statutory
basis for limiting the evidence-based interventions available to an
LEA. These commenters did not oppose a non-exhaustive list of State-
approved, evidence-based interventions, but maintained that districts
should be permitted to select and implement evidence-based
interventions without restriction. One commenter supported what it
described as the flexibility for States to establish exhaustive or non-
exhaustive lists of evidence-based interventions for use in identified
schools. Another commenter stated that the terms ``exhaustive'' and
``non-exhaustive'' could be confusing to stakeholders; for example, an
``exhaustive'' list could suggest either a complete compilation of all
evidence-based interventions or an exclusive list of State-approved
interventions that must be used by districts and schools. This
commenter also encouraged the Department to clarify whether a State may
adopt existing lists of evidence-based interventions rather than
develop their own lists.
Discussion: The Department appreciates the concerns expressed by
these commenters, but continues to believe that States should have the
discretion to establish (or adopt) and approve an exhaustive list
(i.e., from which an LEA must choose) or a non-exhaustive list (i.e.,
from which an LEA may choose) of interventions for use in schools
implementing comprehensive or targeted support and improvement. This is
not contrary to the ESEA or other regulatory requirements because it is
permissible for States to create any such list and still requires that
each identified school implement evidence-based interventions,
consistent with the definition of evidence-based in title VIII of the
ESEA.
Changes: None.
Comments: One commenter recommended that the Department specify the
inclusion of community schools and extended learning opportunities in
State lists of evidence-based practices under proposed Sec. Sec.
200.23(c)(2) and (3). Another commenter requested that the Department
highlight dropout prevention and recovery strategies, while a third
commenter recommended the addition of school leadership programs and
interventions as examples of evidence-based State-determined
interventions in the final regulations.
Discussion: We decline to add specific categories of possible
evidence-based interventions or strategies to the final regulations
beyond the broad category of ``whole-school reform models.'' The
purpose of the regulations in this area is to describe how States may
create their own lists of evidence-based interventions or develop their
own evidence-based interventions, and not to require or promote
specific practices.
Changes: None.
Comments: One commenter recommended a range of changes to proposed
Sec. 200.23(c) aimed at supporting more effective use of evidence-
based interventions, including requiring States to provide more
information on the evidence associated with each State-approved
intervention; periodic updates of State-approved lists of evidence-
based interventions; and State-sponsored, rigorously evaluated pilots
of interventions in areas for which there is no evidence base.
Discussion: The Department appreciates the commenter's interest in
promoting more effective use of evidence-based practices but declines
to require or otherwise specify additional State-level activities in
this area in the final regulations. We believe such activities may be
addressed more appropriately, taking into account varying needs and
capacities across States, through non-regulatory guidance.\26\
---------------------------------------------------------------------------
\26\ See: http://www2.ed.gov/policy/elsec/leg/essa/guidanceuseseinvestment.pdf. Non-Regulatory Guidance: Using Evidence
to Strengthen Education Investments.
---------------------------------------------------------------------------
Changes: None.
Comments: One commenter recommended replacing the term
``intervention'' with ``strategies'' when referring to whole-school
improvement strategies in proposed Sec. 200.23(c)(3).
Discussion: We believe these terms are largely interchangeable in
the school improvement context and decline to make the recommended
change.
Changes: None.
Comments: One commenter recommended revisions to proposed Sec.
200.23 that would require that additional improvement actions, if taken
by a State, in schools where students receive instruction primarily
through a Native American language, including any State-approved
evidence-based interventions and any State-determined, school-level
improvement actions, be based on research in schools where the Native
American language is the primary medium of education, be conducted in
the school's particular Native American language of instruction, and
not limit the preservation or use of Native American languages and
their distinctive features.
Discussion: The Department appreciates the concerns of the
commenter that any additional State improvement actions taken in a
Native American language medium school reflect and respect the
importance of the language of instruction in such schools. Although we
agree that States should not take improvement action without taking
into account the unique nature and characteristics of Native American
language medium schools, we decline to add specific requirements for
such schools to the final regulations. The regulations provide
sufficient flexibility for States to take into consideration multiple
factors. We also note that during the required State consultation with
local tribes prior to submitting the State plan (see Sec. 299.15),
local tribes can provide input regarding these issues, and we hope that
the State, LEA and local tribes will work together towards the best
interests of the affected students.
Changes: None.
Comments: One commenter observed that the provisions regarding
State-determined interventions and State-approved lists of evidence-
based interventions in proposed Sec. 200.23(c) appear inconsistent
with other provisions in the ESEA, as amended by the ESSA, emphasizing
local discretion to develop and implement improvement plans in schools
identified for comprehensive support and improvement or targeted
support and improvement.
Discussion: The final regulations, like the proposed regulations,
reflect the
[[Page 86162]]
additional actions that States may take under the ESEA, as amended by
the ESSA, to support meaningful and effective school improvement,
particularly in LEAs with significant numbers of identified schools,
including schools identified for comprehensive support and improvement
that are not meeting exit criteria. Section 1111(d)(3) of the ESEA, as
amended by the ESSA, recognizes that in such circumstances, local
discretion over school improvement may not be working and thus it may
be appropriate for a State to take a stronger role. Further, section
1111(d)(3)(B)(ii) specifically permits a State to establish alternative
evidence-based, State-determined strategies that can be used in schools
identified for comprehensive support and improvement, consistent with
State law. The regulations give States flexibility to ``establish''
such strategies or interventions either by creating lists of State-
approved, evidence-based interventions or by developing their own
State-determined interventions. We are revising Sec. 200.23(c)(3) to
clarify the difference between these two approaches and to include the
statutory authority for State-determined interventions.
Changes: We have revised Sec. 200.23(c)(3) to clarify that this
provision permits States to develop their own evidence-based
interventions and to reference the authority for such action in section
1111(d)(3)(B)(ii) of the ESEA, as amended by the ESSA.
Comments: None.
Discussion: Proposed Sec. 200.23(c)(4) allowed a State to request
that LEAs submit to the State for review and approval the amended
targeted support and improvement plan required for each school in the
LEA that is identified for targeted support and improvement and not
meeting exit criteria over an LEA-determined number of years. After
further consideration, we determined that this language was confusing.
If a State chooses to conduct this review, we believe the State should
be able to require an LEA to submit an amended plan for review and
approval.
Changes: We have revised Sec. 200.23(c)(4) to permit a State to
require, rather than request, that an LEA submit to the State for
review and approval the amended targeted support and improvement plan
for each school that is required to develop such a plan under
200.22(e)(2)(i).
Section 200.24 Resources To Support Continued Improvement
LEA Application
Comments: Several commenters expressed support for the LEA
application requirements in proposed Sec. 200.24(b). One commenter
supported the requirement for an assurance that each school an LEA
proposes to serve with section 1003 school improvement funds will
receive all of the State and local funds it would have otherwise
received; this commenter also requested clarification on accountability
regarding the use of funds awarded under section 1003.
Discussion: The Department appreciates the commenters' support of
the requirements for LEA applications for school improvement funds. We
believe any further clarification on accountability regarding the use
of funds under section 1003 is more appropriate for non-regulatory
guidance or technical assistance.
Changes: None.
Comments: A few commenters expressed confusion regarding proposed
Sec. 200.24(b)(1)-(2), and asked the Department to clarify that an LEA
would not have to determine the interventions it will implement in a
school before conducting a needs assessment and developing a plan on
the basis of that assessment.
Discussion: In order to submit an application that meets all
requirements, an LEA will have to conduct its needs assessment and
determine the evidence-based interventions that best address the needs
identified before submitting its application. We acknowledge that,
depending on the timing of a State's process for awarding section 1003
funds, it could be difficult for an LEA to complete the necessary
processes prior to submitting its application. Given the various
timelines and procedures in place in different States, however, we
decline to modify the regulations to dictate a specific timeline for
allocating section 1003 funds. States should consider the general
school improvement requirements, including the requirements to complete
a needs assessment and identify evidence-based interventions based on
that assessment, and the application process and timeline for funds
under section 1003.
Changes: None.
Comments: A number of commenters recommended revisions to the LEA
application provisions in the proposed regulations, including requiring
to describe that each school will implement one or more evidence-based
interventions based on strong, moderate, or promising evidence;
requiring a demonstration that selected interventions address the
results of the school's needs assessment; requiring that interventions
are based on the strongest evidence available; and requiring a
description of how the LEA will conduct the needs assessment; and
requiring a description of the qualifications of any external partners.
Discussion: We believe the application requirements in Sec.
200.24(b), combined with the separate but related requirements for
comprehensive support and improvement plans in Sec. 200.21, largely
address the concerns of commenters while also striking the right
balance between ensuring appropriate accountability for the effective
use of section 1003 funds and recognizing State and local discretion in
developing school improvement processes that address local needs and
circumstances. Consequently, we decline to include additional
application requirements in these final regulations.
Changes: None.
Comments: One commenter suggested that we require a description of
the rigorous review process an LEA will use for all external service
providers, not just those with which the LEA will partner for school
improvement activities. This commenter further recommended that LEAs
include in their applications information on their timelines and
metrics for evaluating external providers, and that the regulations
permit pay-for-performance contracts with external providers.
Discussion: We believe it is beyond the scope of Sec. 200.24 to
expand the requirements for review of external providers to cover all
external providers, and not just those supporting school improvement
projects funded through section 1003 of the ESEA, as amended by the
ESSA. We further believe that other requirements related to external
providers proposed by commenters, including the use of pay-for-
performance contracts, are best left to the discretion of States and
LEAs, most of which already have similar requirements in place based on
their experience in implementing the supplemental educational services
requirements of the ESEA, as amended by the NCLB.
Changes: None.
Comments: One commenter requested that the regulations require a
rigorous review process of the interventions to be implemented rather
than of the external provider that may help carry out the activities.
Another commenter suggested that the LEA's application should describe
how it will support schools in the continuous monitoring,
implementation, and evaluation of
[[Page 86163]]
interventions to ensure that any necessary adjustments are made in a
timely fashion.
Discussion: Under Sec. 200.24(d)(1)(iii), States must evaluate the
use of funds under section 1003, including the impact of evidence-based
interventions on student outcomes or other related outcomes and must
disseminate the results of these efforts. Additionally, in the LEA
application, an LEA must describe its plan to monitor each school for
which the LEA receives school improvement funds, which may include
reviewing both the implementation and impact of the selected
interventions. Given these requirements, the Department declines to
make any changes in response to these comments.
Changes: None.
Allocation of School Improvement Funds to LEAs
Comments: Several commenters requested that the Department clarify
that a State may distribute school improvement funds through a
combination of formula and competitive grants. Another commenter,
however, recommended that funding for school improvement be based on a
formula designed with input from stakeholders, rather than through a
competitive process.
Discussion: Section 1003(b)(1)(A) of the ESEA, as amended by the
ESSA, expressly permits States to make school improvement grants to
LEAs on a formula or competitive basis. Accordingly, there is no need
for the regulations to clarify that school improvement funds may be
distributed through a combination of formula and competitive grants,
and the Department lacks the authority to remove this statutory
flexibility. For States that elect to distribute school improvement
funds solely through a formula, nothing in the statute or the final
regulations prohibits them from seeking stakeholder input on that
formula.
Changes: None.
Comments: A couple of commenters requested that the Department
clarify whether the proposed minimum grant size in Sec.
200.24(c)(2)(ii) is annual or cumulative for schools identified for
comprehensive and targeted support and improvement.
Discussion: The recommended minimum grant sizes of $500,000 and
$50,000 in the regulations for each school identified for comprehensive
or targeted support and improvement, respectively, are annual. The
Department does not believe that additional regulatory language is
needed to clarify this point. We note, however, that while these are
the recommended grant sizes, the general requirement is for States to
make awards of sufficient size to help LEAs effectively implement all
requirements of a support and improvement plan developed under Sec.
200.21 or Sec. 200.22 of the final regulations, including selected
evidence-based interventions.
Changes: None.
Comments: A number of commenters provided feedback on the proposed
minimum grant sizes for comprehensive and targeted support schools in
Sec. 200.24(c)(2)(ii). Many of these commenters opposed the proposed
minimum grant size, or any specific minimum grant size, noting that the
Department should leave it to the States to decide the size of the
grant. Those commenters stated that the proposed minimum grant sizes in
the regulations are arbitrary, reduce flexibility, result in
inefficiency, and do not take into account student populations or the
unique needs of each school.
Several commenters stated that the minimum grant sizes are
inconsistent with the statutory provisions allowing the State to
establish the method to allocate the funds and requiring the grants to
be of sufficient size to enable an LEA to effectively implement
improvement activities. One commenter stated that the minimum grant
size requirement assumes that additional funding is the key to
successful school improvement, while other commenters suggested that
many low-performing or rural schools may struggle to spend such
significant amounts of funding.
Several commenters also noted that for some States, requiring
awards of at least $500,000 to schools identified for comprehensive
support and improvement would make it impossible to serve all such
schools, or to make any awards to schools identified for targeted
support and improvement. On the other hand, one commenter suggested
that the proposed $50,000 minimum award for targeted support and
improvement schools might not be sufficient to prevent such schools
from ultimately becoming comprehensive support and improvement schools.
Another commenter recommended different minimum award sizes, suggesting
$30,000 for targeted support schools and $100,000 for comprehensive
support schools, and suggested that rather than requiring the LEA's
application demonstrate that a smaller award is appropriate, that the
LEA's application must demonstrate that a larger award is appropriate.
A few commenters also opposed requiring LEAs to justify awards below
the proposed minimum award sizes.
Finally, several commenters recommended alternatives to regulating
minimum grant sizes, including allowing States to propose their own
minimum grant sizes or to simply base award sizes on such factors as
the school size, the needs of students, and the interventions to be
implemented.
Discussion: The minimum grant sizes required for school improvement
awards under section 1003 of the ESEA, as amended by the ESSA, are not
intended to limit States and LEAs from recognizing differences among
schools, but rather to ensure that the grants LEAs receive to support
schools identified for comprehensive and targeted support and
improvement are of sufficient size to support effective implementation
of evidence-based interventions and improve student outcomes. For
example, the much higher minimum grant size for comprehensive support
schools is intended to support the broad, fundamental, whole-school
reforms that are consistent with both the purpose and requirements of
comprehensive support and improvement plans under the ESEA, as amended
by the ESSA. The statute and regulations recognize diversity among
schools by requiring each State to give priority in awarding funds to
LEAs with the greatest need for such funds and the strongest commitment
to using funds to improve student outcomes--priorities that permit
States to take into account such factors as school size, student needs,
and selected interventions when making section 1003 awards that exceed
minimum grant sizes. We also believe that because the regulations
already include flexibility for States to make smaller grants, there is
no need to either modify the proposed minimum grant sizes or create
alternative methods that States might use to determine section 1003
grant sizes. For these reasons, we are retaining minimum award sizes
for section 1003 grants in the final regulations. However, we are
revising the regulations to specifically incorporate some of the
factors suggested by commenters that may justify awards below the
$500,000 and $50,000 minimum grant sizes.
Changes: We have revised Sec. 200.24(c)(2)(ii) to clarify that the
characteristics a State must consider in choosing to award a grant that
is less than the minimum grant size include enrollment, identified
needs, selected evidence-based interventions, and other relevant
factors described in the LEA's application on behalf of the school.
Comments: One commenter stated that, provided there is not an
increase in title I funding and in the absence of a ``hold harmless''
provision for the
[[Page 86164]]
school improvement fund set-aside taken by the SEA, many LEAs may
actually see a decrease in the amount of funds they receive for school
improvement. The commenter advocated for the use of all school
improvement funds at the local level, rather than the SEA level, and
recommended that all minimum grant sizes be removed so States can make
adjustments to award sizes based on title I appropriations.
Discussion: This commenter appears to be concerned that in some
cases, the larger State-level school improvement reservation required
by section 1003(a) of the ESEA, as amended by the ESSA, could reduce an
LEA's regular title I, part A allocation below the amount it received
in the prior year. Further, the commenter appears to recommend that
some portion of section 1003 funds (including the State share of school
improvement funding), rather than being used to support school
improvement, should be used to compensate or ``restore'' regular LEA
title I, part A allocations. This recommendation is wholly inconsistent
with the requirements of the ESEA, as amended by the ESSA, which
requires section 1003 funds to be used solely for school improvement
activities, and not to supplement regular title I, part A allocations.
Changes: None.
State Responsibilities: Greatest Need and Strongest Commitment;
Requirement To Evaluate Efforts; Renewing Grants
Comments: A few commenters recommended that the Department
eliminate proposed Sec. 200.24(c)(4)(i), which requires that a State
award funds to LEAs to serve schools identified for comprehensive
support and improvement ahead of those identified for targeted support
and improvement. Some of these commenters noted that section 1003 of
the ESEA, as amended by the ESSA, does not distinguish between
comprehensive and targeted support and improvement schools. Another
commenter stated that the requirement to serve schools identified for
comprehensive support and improvement before schools identified for
targeted support and improvement unduly limits States' and LEAs'
ability to allocate resources to best meet the needs of their schools.
Several commenters stated that LEAs should determine which
comprehensive or targeted support and improvement schools receive
funding when there are insufficient funds to award a grant of
sufficient size to each LEA that submits an approvable application.
Commenters were particularly concerned that, under the proposed
regulations, no targeted support and improvement schools would ever
receive funding due to the minimum grant award requirements.
Discussion: The Department appreciates the commenters' concern that
schools identified for targeted support and improvement may not always
receive funding under section 1003 of the ESEA, as amended by the ESSA.
However, section 1003 of the ESEA, as amended by the ESSA, requires
States to identify schools with the greatest need. We believe that
schools identified for comprehensive support and improvement are the
schools with the greatest need because they are the lowest-performing
schools in the State.
Although we strongly agree that schools with low-performing and
consistently underperforming subgroups need additional support,
including additional fiscal resources to do so, we recognize that
resources under section 1003 are limited and are therefore requiring
that States focus those funds on the lowest performing schools overall.
While LEAs have the discretion to determine which comprehensive support
and improvement schools they serve first, it would be inconsistent with
the statute to serve targeted support schools first.
Changes: None.
Comments: One commenter stated that States should take into account
the size and characteristics of the student population that will be
served, in addition to ``greatest need.''
Discussion: Although the Department declines to make any changes in
response to this comment, the required factors in proposed Sec.
200.24(c)(4)(ii) are minimum requirements. Thus, a State may include
additional factors when determining greatest need, such as the
characteristics of the student population, to the extent they are
consistent with the statute and regulations.
Changes: None.
Comments: One commenter recommended that States give preference to
LEAs that have (1) invested their own resources in school improvement,
(2) selected evidence-based interventions that best address their needs
assessments, (3) plans to monitor and evaluate programs to promote
continuous improvement, and (4) demonstrated a commitment to using
evidence.
Discussion: We believe most of the factors recommended as
priorities by the commenter reflect existing requirements for
improvement plans under the ESEA, as amended by the ESSA, and thus
would not support meaningful differentiation among applicants. The
exception, which is the extent to which an LEA has invested its own
resources in school improvement, potentially excludes many high-poverty
LEAs with few resources of their own but great need for additional
school improvement funding. Consequently, we decline to modify the
priorities included in the final regulation, though we note that States
may include additional factors beyond those in proposed Sec.
200.24(c)(4), to the extent that they are consistent with the statute
and regulations.
Changes: None.
Comments: A few commenters stated that the regulations establishing
the factors a State must consider in determining which LEAs demonstrate
the ``greatest need'' for school improvement funds and the ``strongest
commitment'' to use those funds to improve academic achievement and
student outcomes in the lowest-performing schools exceed the
Department's authority, or impose an unnecessary burden on SEAs or
LEAs. These commenters stated that these determinations should be left
to States, and suggested including the factors listed in the
regulations as examples, rather than requirements, of how a State might
make these determinations. A couple of commenters opposed particular
factors for consideration, including resource allocation among LEAs and
current academic achievement, with a couple of these commenters
asserting that the requirement to look at resource allocation is
contrary to the statute. One of these commenters also asserted that,
through these regulations, the Department was attempting to influence
the allocation of State and local funds, which the commenter believed
to be prohibited by section 8527(a) of the ESEA, as amended by the
ESSA.
Discussion: We disagree with the comments asserting that these
regulations exceed the Department's authority. Section 1003(f) of the
ESEA, as amended by the ESSA, requires a State, in allocating section
1003 school improvement funds, to give priority to LEAs that
``demonstrate the greatest need for such funds, as determined by the
State'' and that ``demonstrate the strongest commitment to using [such]
funds . . . to enable the lowest-performing schools to improve student
achievement and student outcomes.'' The statute, however, does not
clearly define the terms ``greatest need'' or ``strongest commitment.''
We believe the regulations are necessary to clarify the statutory terms
and to ensure that States
[[Page 86165]]
meet these statutory requirements in a way that advances the purpose of
section 1111(d)(1) and (2) as well as the overall purpose of title I--
to improve student outcomes and close educational achievement gaps. As
such, we believe these requirements fall squarely within the scope of
title I, part A of the statute as well as the Secretary's rulemaking
authority under GEPA, the DEOA, and section 1601(a) of the ESEA, as
amended by the ESSA, and do not violate section 1111(e) (see discussion
of the Department's rulemaking authority under the heading Cross-
Cutting Issues). Further, we believe that the requirements strike the
proper balance between ensuring compliance with these key provisions of
the statute while maintaining States' authority to make determinations
regarding the award of school improvement funds. We do not agree with
commenters that these requirements add new or unnecessary burden to
States and LEAs because States and LEAs must meet these requirements;
the regulations clarify how they must do so.
Further, we disagree that the requirements in Sec.
200.24(c)(4)(ii) violate section 8527 of the ESEA, as amended by the
ESSA. That provision states that nothing in the ESEA authorizes an
officer or employee of the Federal Government ``to mandate, direct, or
control'' a State, LEA, or school's allocation of State or local
resources. As the requirements in Sec. 200.24(c)(4)(ii) simply
establish the factors a State must consider in determining how to
prioritize awards of Federal school improvement funds, it in no way
``mandates, directs, or controls'' the allocation of State or local
resources.
Changes: None.
Comments: Several commenters supported the requirement that a State
consider, in determining strongest commitment, the proposed use of
evidence-based interventions supported by the strongest level of
evidence. One commenter recommended giving priority to an LEA that
maximizes the use of evidence-based interventions in all appropriate
aspects of its improvement plan, while another commenter recommended
that the State consider the degree to which the LEA maximizes the use
of evidence-based interventions supported by evidence that is both
rigorous and relevant to the problems to be addressed.
Discussion: We agree with commenters that it is not only the rigor
of the evidence supporting interventions that should be considered, but
also whether the interventions to be implemented address the full scope
of problems to be addressed. Thus, we are revising Sec.
200.24(c)(4)(iii)(A) to require that a State consider, in determining
strongest commitment, the proposed use of evidence-based interventions
and whether they are sufficient to support the school in making
progress toward meeting the exit criteria under Sec. Sec. 200.21 or
200.22.
Changes: We have revised Sec. 200.24(c)(4)(iii)(A) to require that
a State consider, in determining strongest commitment, not only the
proposed use of evidence-based interventions that are supported by the
strongest level of evidence available, but also whether the evidence-
based interventions are sufficient to support the school in making
progress toward meeting exit criteria under Sec. Sec. 200.21 or
200.22.
Comments: One commenter opposed Sec. 200.24(c)(4)(iii)(A),
asserting that this provision requires levels of evidence not required
by the statute and which may impose financial burdens on LEAs that must
conduct their own studies to meet the required evidence levels.
Discussion: Section 200.24(c)(4)(iii)(A) is consistent with section
8101(21)(B) of the ESEA, as amended by the ESSA, which requires that
the activities and strategies funded under section 1003 of the ESEA
meet the requirements for strong, moderate, or promising evidence under
section 8101(21)(A). Further, the regulations do not limit the award of
section 1003 funds to an applicant implementing interventions at a
specific evidence level, nor do they require LEAs to expend their own
funds to conduct studies. States may support LEAs in conducting or
reviewing existing studies, and States and LEAs may use existing
sources of studies, including the What Works Clearinghouse.
Changes: None.
Comments: Several commenters supported the inclusion of family and
community engagement in the proposed regulations as a factor a State
must consider in determining strongest commitment. One commenter also
encouraged a greater allocation of resources for family and community
engagement.
Discussion: The Department appreciates the support of commenters
for this provision. We note that LEAs have the flexibility to spend as
much as is reasonable and necessary for family and community engagement
under section 1003, and thus, decline to address this issue in the
final regulations.
Changes: None.
Comments: One commenter suggested that the regulations include a
commitment to delivering a well-rounded education for all students in
proposed Sec. 200.24(c)(4)(iii) as a factor to be considered in
determining strongest commitment.
Discussion: The Department agrees that access to a well-rounded
education is a key goal supported by the ESEA, as amended by the ESSA,
but notes that an emphasis on a well-rounded education may not be
consistent with the requirements of comprehensive and targeted support
and improvement plans, which generally must focus on the specific
academic needs of students that led to identification. For this reason,
we decline to make changes in response to this comment.
Changes: None.
Comments: One commenter requested that the Department strike or
clarify the requirement in Sec. 200.24(d)(2)(ii) that if a State,
using funds under section 1003, directly provides for school
improvement activities or arranges for their provision through an
external provider that such a provider have a ``record of success.''
Discussion: We believe it is essential that a State directly
providing these services through an external provider ensure that such
a provider has a record of success in helping LEAs and schools. We also
believe that each State should have flexibility in determining whether
a provider has a record of success, the criteria for which may vary
depending on the services and assistance that the provider will offer,
and decline to constrain this flexibility through any changes to the
final regulations.
Changes: None.
Comments: A few commenters supported the focus in Sec. 200.24(d)
on the evaluation and dissemination of findings on the impact of
evidence-based interventions funded with section 1003 funds. Several
commenters encouraged the Department to expand this evaluation
requirement to include studying the implementation of the evidence-
based interventions, not just the impact of such interventions. Another
commenter recommended revising proposed Sec. 200.24(d)(1)(iii) to
require that States disseminate results of their evaluation efforts not
only to LEAs with schools identified under Sec. 200.19, but also to
all LEAs in the State.
Discussion: The Department appreciates commenters' support of the
evaluation and dissemination provisions for evidence-based
interventions funded by section 1003. These provisions are intended to
strike a balance between the need to build the evidence base on school
improvement interventions and the recognition that many States may have
limited resources and capacity to carry out such work;
[[Page 86166]]
consequently, we decline to add to these requirements.
Changes: None.
Comments: A few commenters objected to the regulations making
annual renewal of section 1003 school improvement awards contingent on
a determination that a funded school is making progress on a State's
goals and indicators. One commenter suggested clarifying the definition
of ``progress'' by looking at data from the School Improvement Grants
program, while another recommended the addition of examples of leading
indicators that might be used to demonstrate progress.
Discussion: The Department appreciates these comments and
understands that the process of improvement in a low-performing school
can take several years and requires a plan for sustainability,
consistent with the statutory acknowledgement that schools may need a
grant for up to four years. Under the statute and regulations, the
State defines the long-term goals and measurements of progress and
determines how much progress is sufficient to support renewing an LEA's
school improvement grant. For example, the State could set growth goals
on the indicator or measure that resulted in the schools'
identification, either for the all students group or particular
subgroups. We believe this flexibility, in combination with the
regulations, strikes the right balance between providing appropriate
support for school improvement efforts and ensuring accountability for
the effective expenditure of taxpayer funds. Therefore, the Department
declines to make changes in response to these comments, and believes
that any further clarification would be provided more appropriately
through non-regulatory guidance.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed regulations, the Department
believes it is helpful to clarify what States will be required to
submit in their title I State plans under section 1111 of the ESEA, as
amended by the ESSA, to ensure that States are fulfilling their
responsibilities under Sec. 200.24(d). While proposed Sec. 200.12
required that each State plan must include information about the
State's process for ensuring development and implementation of school
improvement plans consistent with the requirements of Sec. 200.24, it
will be more helpful for States if greater specificity regarding the
required information is described in Sec. 200.24. As Sec. 200.24(d)
includes five specific State responsibilities regarding funds under
section 1003 of the ESEA, as amended by the ESSA, we are revising the
final regulations to specify that a State must describe how it will
fulfill these responsibilities in its State plan.
Changes: We have revised Sec. 200.24(d) to clarify that a State
must describe how it will meet the requirements pertaining to State
responsibilities for funds under section 1003 of the ESEA, as amended
by the ESSA.
Eligibility for School Improvement Funds
Comments: One commenter stated that before the passage of the ESSA,
States were able to identify schools for supports if they were title I
eligible. However, the commenter stated that under the proposed
regulations, States are no longer afforded that option. Similarly,
another commenter stated that the regulations are not clear that any
school identified for comprehensive or targeted support and improvement
is eligible for school improvement funding, regardless of title I
status. This commenter recommended including language in the
regulations stating that any school that is identified for
comprehensive or targeted support under section 1111(d) of the ESEA, as
amended by the ESSA, should be eligible for funding under section
1003(a), regardless of whether such school participates, or is eligible
to participate, under title I.
Discussion: The relationship between title I status and eligibility
for school improvement support has changed under the ESEA, as amended
by the ESSA, and section 1003(b)(1)(A) of the ESEA is requires that any
school that is identified for comprehensive or targeted support and
improvement is eligible for school improvement funding under section
1003. Section 200.19 of the regulations clearly identifies which
schools must be identified for comprehensive or targeted support and
improvement, clarifying which categories of schools include title I and
non-title I schools. Section 200.24(a) reiterates the statutory
requirement that any schools meeting the statutory definition of
comprehensive or targeted support and improvement are eligible for
funds under section 1003. Therefore, we decline to add additional
regulatory language to Sec. 200.24 to this point.
Changes: None.
Other Reporting Requirements
Comments: A few commenters recommended that each State make
publicly available on its State report card a list of LEAs and schools
eligible for school improvement funds that did not receive them, due to
insufficient funds at the State level.
Discussion: While the information requested by commenters is
available on State report cards (which must include all schools
identified for comprehensive or targeted support and improvement--and
thus eligible for school improvement funding--and those receiving
school improvement funds), insufficient funding is not the only reason
that some eligible schools might not receive funding. Any State that
implements the statutory priorities for targeting school improvement
funds, ensures that each grant is of sufficient size to support full
and effective implementation of the evidence-based interventions
selected by each grantee, and generally adheres to minimum grant size
requirements is unlikely to have sufficient resources under section
1003 of the ESEA, as amended by the ESSA, to award a grant to each LEA
such that every identified school receives funding. In addition, not
every LEA with one or more eligible schools is likely to apply for
section 1003 funds, particularly if the State implements a rigorous
application process consistent with the requirements of the ESEA, as
amended by the ESSA, and applicable regulations.
Changes: None.
Specific Uses of School Improvement Funds
Comments: Several commenters asked the Department to clarify that
specific uses of funds are permissible under section 1003 of the ESEA,
as amended by the ESSA, including: Expansion of access to high-quality,
developmentally appropriate early education; the creation of new
charter schools to serve students enrolled in schools identified for
comprehensive support and improvement, and other students in the local
community and low-performing schools; and summer learning and
enrichment activities.
Discussion: The use of funds provided under section 1003 of the
ESEA, as amended by the ESSA, generally is governed by the requirements
for comprehensive or targeted support and improvement plans in
Sec. Sec. 200.21 and 200.22, as well as the evidence requirements in
section 8101(21)(B) of the ESEA, as amended by the ESSA. Consequently,
the uses of funds proposed by the commenters would be allowable only as
part of such improvement plans, thus it would be potentially misleading
and inconsistent with the ESEA, as amended by the ESSA, to specify
particular uses of section 1003 funds outside of those plans.
[[Page 86167]]
Changes: None.
Comments: One commenter requested that the Department specify that
Parent Training and Information Centers may be used as a resource for
improvement activities.
Discussion: The Department believes that it would be more
appropriate to identify the wide range of resources that States and
LEAs could enlist in support of school improvement activities,
including Parent Training and Information Centers, through non-
regulatory guidance and other technical assistance than in these final
regulations.
Changes: None.
Other Comments on School Improvement Funds
Comments: One commenter requested that the Department clarify
whether several schools could share a single allocation of funds for
comprehensive and targeted support and improvement if they have similar
challenges and are willing to undertake collaborative projects to
develop and implement intervention strategies. Similarly, another
commenter requested allowing States to combine school-level allocations
in a zone-approach to managing turnaround of two or more schools
identified for improvement.
Discussion: The Department appreciates these comments and the
creative approaches to effectively use limited funds. However, the
Department's interpretation of section 1003 of the ESEA, as amended by
the ESSA, is that a district must apply for funds on behalf of one or
more specific schools to ensure that each application meets all of the
requirements with respect to that school. Even though each application
must be separate, schools and LEAs may choose to collaborate as they
complete the applications and may determine that it is appropriate in
some cases to share certain resources as they implement their
interventions such as, for example, technical assistance providers,
professional development resources, or instructional coaches. For these
reasons, the Department declines to make any changes in response to
these comments.
Changes: None.
Comments: One commenter expressed general opposition to the
reporting requirements in proposed Sec. 200.24(e) and recommended
removing them because they generally opposed data collection and
reporting.
Discussion: Subsection 200.24(e) merely incorporates into
regulation the reporting requirements related to section 1003 funds
found in section 1111(h)(1) of the ESEA, as amended by the ESSA.
Changes: None.
Comments: One commenter recommended adding a new provision to
proposed Sec. 200.24 that would require each State and LEA involved in
the allocation of funds under section 1003(a) of the ESEA, as amended
by the ESSA, to assure that LEA applications on behalf of schools,
including charter schools, serving students primarily instructed
through a Native Language instruction program include provisions that
improvement support will be in the Native American language. The
commenter also recommended that the LEA assure the selected
interventions: (1) Include evidence-based interventions that are
conducted through a Native American language and which are based on
evidence that was obtained through research in a school conducted
primarily through a Native American language; (2) do not limit the
preservation or use of Native American languages; and (3) are specific
to the specific Native American language of instruction and its
distinctive features. Finally, the commenter recommended that the State
and LEA assure that external partners of an LEA include staff fully
proficient in the Native American language used in the school receiving
support.
Discussion: The Department believes that the existing requirements
for school improvement plans, including such elements as the needs
assessment required for comprehensive support and improvement schools,
stakeholder consultation requirements, and the selection of evidence-
based interventions are sufficient to address the concerns of the
commenter. For example, one consideration in selecting appropriate
evidence-based interventions is determining whether the research
supporting the effectiveness of the intervention was collected based on
a population that overlaps with the population of students to be served
in the identified school. For these reasons, the Department declines to
make any changes in response to this comment.
Changes: None.
Comments: One commenter asked that the Department clarify that the
term ``intervention'' is a reference to schoolwide improvement
strategies for improving student outcomes, rather than individual-level
student interventions.
Discussion: We believe that the term ``intervention'' reasonably
means different things in different contexts. While ``intervention''
could refer to a whole-school reform strategy, it also could mean an
activity focused on addressing a particular academic need for a low-
performing subgroup or, in some cases, individual student-level
interventions.
Changes: None.
Comments: One commenter suggested that the Department add
``scheduling'' to the list of operational flexibilities in proposed
Sec. Sec. 200.24(b)(7) and 200.24(d)(1)(v) that an SEA or LEA consider
providing to support full and effective implementation of comprehensive
and targeted support and improvement plans. This commenter stated that
this addition is necessary to ensure that principals have autonomy to
make critical school-level decisions regarding not only staffing and
budgets, but also scheduling. In addition, this commenter recommended
adding to proposed Sec. 200.24(b)(8) an assurance that the new
principal, if applicable, will be identified on a timeline that allows
for meaningful participation in the planning activities so that new
principals have sufficient time to plan before the school year begins.
Discussion: We agree with the commenter that there may be other
areas of operational flexibility beyond budgeting and staffing,
including scheduling, that States or LEAs should consider providing, as
appropriate, to ensure full and effective implementation of school
improvement plans. However, we believe that States and LEAs are best
positioned to determine which areas of operational flexibility should
be considered, and decline to add any further examples beyond those
already included in the non-exhaustive list in the regulations.
Changes: None.
Comments: One commenter recommended requiring States to provide
some type of support to targeted support and improvement schools that
do not receive section 1003 funds.
Discussion: We agree that States should provide technical
assistance and other support to all identified schools, including
schools that do not benefit from section 1003 funds, and we note that
States may use their 5 percent State-level set-aside under section 1003
for this purpose. However, we decline to require such support in the
final regulations because it could conflict with other provisions in
the ESEA, as amended by the ESSA, such as the requirement that States
prioritize school improvement technical assistance and related support
to LEAs with significant numbers or percentages of identified schools.
Changes: None.
[[Page 86168]]
Comments: One commenter stated that the way funding is allocated to
support school improvement is unnecessary and extremely time consuming
to document.
Discussion: The requirements and procedures for awarding section
1003 school improvement funds are closely tied to the requirements of
the ESEA, as amended by the ESSA, and are designed to both ensure that
school improvement funds are used effectively to support improved
student outcomes in identified schools and to ensure appropriate
accountability for taxpayer-provided funds. However, we appreciate that
the term ``allocate'' may imply that States should provide detailed
documentation about their fiscal allocation process; therefore, we are
revising Sec. 200.24(d)(1)(i) to clarify that the State must describe,
in its State plan, its process to award grants to LEAs.
Changes: We have revised Sec. 200.24(d)(1)(i) to clarify that each
State must describe, in its State plan under section 1111 of the ESEA,
as amended by the ESSA, the process to award grants to LEAs under
section 1003.
Comments: One commenter supported the requirement making schools
identified for targeted support and improvement due to low assessment
participation rates ineligible for section 1003 school improvement.
This commenter also requested clarification regarding whether schools
that do not meet exit criteria after the initial award period can
receive additional school improvement funding. This commenter stated
that the regulations do not specify what occurs after the award period
expires if the school has not met the defined exit criteria.
Discussion: We appreciate the commenter's support and further
clarify that grants under section 1003 may be awarded for up to four
years, and thus may be continued for schools that do not meet their
exit criteria, provided that such schools take the actions required by
either Sec. Sec. 200.21(f) for schools identified for comprehensive
support or 200.22(e) for schools identified for targeted support.
Changes: None.
Sections 200.30 and 200.31 Annual State and LEA Report Card
General
Comments: Several commenters expressed support for proposed
regulations clarifying statutory requirements for the State and LEA
report cards required by the ESEA, as amended by the ESSA, and
highlighted increased transparency and disaggregation for many of the
data elements as particularly helpful. Conversely, some commenters
expressed general opposition to the proposed regulations, variously
asserting that they exceed statutory requirements; would be burdensome
to implement; and, based on past experience, would be unlikely to
result in better student outcomes.
Discussion: The Department appreciates support for the State and
LEA report card regulations and notes that they are consistent with
sections 1111(h)(1)(C) and 1111(h)(2)(C) of the ESEA, as amended by the
ESSA, which maintain a majority of the State and LEA report card
requirements required by NCLB and add several new requirements.
The Department values transparency, consistent with the statute,
and disagrees that efforts to support improvements in teaching and
learning have not benefited from the State and LEA report card
provisions under the ESEA, as amended by NCLB. With respect to LEA
report cards in particular, there is evidence that when school quality
information, including information about school accountability results,
is provided to parents, they pay attention and respond.\27\ Report
cards can positively impact the extent to which parents engage in their
children's education and, in turn, help to improve student outcomes. As
such, we believe that any burden imposed by the report card
requirements is outweighed by the resulting educational benefits.
---------------------------------------------------------------------------
\27\ Black, S.E. (1999). ``Do better schools matter? Parental
valuation of elementary education.'' Quarterly Journal of Economics,
114 (2): 577-99.
Charbonneau, E., & Van Ryzin, G.G. (2012). ``Performance
measures and parental satisfaction with New York City Schools.''
American Review of Public Administration, 42 (1): 54-65.
Figlio, D.N. & Lucas, M.E. (2004). ``What's in a grade? School
report cards and the housing market.'' American Economic Review, 94
(3): 591-604.
Hastings, J.S. & Weinstein, J.M. (2008). ``Information, school
choice, and academic achievement: Evidence from two experiments.''
Quarterly Journal of Economics, 123 (4): 1373-414.
Jacobsen, R. & Saultz, A. (2013). ``Do good grades matter?
Public accountability data and perceptions of school quality.'' In
The Infrastructure of Accountability, ed. Anagnostopoulos, D.,
Rutledge, S.A., & Jacobsen, R. Cambridge, MA: Harvard Education
Press.
Jacobsen, R., Saultz, A. & Snyder, J.W. (2013). ``When
accountability strategies collide: Do policy changes that raise
accountability standards also erode public satisfaction?''
Educational Policy, 27 (2): 360-89.
Koning, P. & Wiel, K.V.D. (2013). ``Ranking the Schools: How
school-quality information affects school choice in the
Netherlands.'' Journal of the European Economic Association, 11 (2):
466-493.
Nunes, L.C., Reis. A.B., & Seabra, C. (2015). ``The publication
of school rankings: A step toward increased accountability?''
Economics of Education Review, 49 (December): 15-23.
Rockoff, J.E. & Turner, L.J. (2008). Short run impacts of
accountability on school quality. Working Paper 14564, National
Bureau of Economic Research, http://www.nber.org/papers/w14564.
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In response to commenters who generally opposed the requirements on
the ground that they exceed the statutory requirements, as discussed
previously in the discussion of Cross-Cutting Issues, the Department
has rulemaking authority under section 410 of GEPA, section 414 of the
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA.
Given that authority and that these regulations fall squarely within
the scope of title I, part A of the statute, consistent with section
1111(e), the regulations need not be specifically authorized by the
statute, nor is the Department limited to issuing regulations that
merely restate the requirements in the statute.
Changes: None.
Development of Report Cards in Consultation With Parents
Comments: Many commenters supported proposed Sec. Sec.
200.30(b)(1) and 200.31(b)(1), which require that State and LEA report
cards be developed in consultation with parents. Some commenters
requested that the language be expanded to require consultation with
other stakeholders as well, including teachers, principals, other
school leaders, specialized instructional support personnel, and
special education teachers. Some commenters suggested that each State
also be required to describe its consultation process. Additionally,
one commenter asserted that the statute does not require parental
consultation on the LEA report card and, therefore, such consultation
would be more appropriately addressed through non-regulatory guidance.
Discussion: We appreciate the support from many commenters who
share our belief that it is essential that the perspectives of
parents--who are among the primary consumers of State and LEA report
cards--be solicited, considered, and incorporated into the report card
development process. We also believe that while the ESEA, as amended by
the ESSA, does not specifically require consultation with parents in
the development of LEA report cards, requiring such consultation falls
within the scope of and is consistent with the statutory consultation
requirement for State report cards, consistent with section 1111(e) of
the ESEA, as amended by the ESSA. Moreover, we believe parental
consultation on LEA report cards is particularly important given that
these report cards typically contain the school- and district-level
[[Page 86169]]
information that is most relevant and useful to parents. In addition,
as discussed previously in the section on Cross-Cutting Issues, the
Department's rulemaking authority under section 410 of GEPA, section
414 of the DEOA, and section 1601(a) of the ESEA, as amended by the
ESSA, allows it to issue regulatory provisions not specifically
authorized by statute.
States and LEAs have discretion to include other stakeholders in
the development of their report cards and we believe they are likely to
include many of the individuals suggested by commenters. As noted
previously, however, the emphasis of the regulations on parental
consultation is based on the requirements of the ESEA, as amended by
the ESSA. For these reasons, we decline to specify additional
stakeholders in the final regulations.
Changes: None.
Accessibility of Notices, Documentation, and Information
Comments: Many commenters remarked on the requirements that appear
in several sections of the proposed regulations (including proposed
Sec. Sec. 200.30(c), 200.30(d)(1)(i), 200.31(c), 200.31(d)(1),
200.31(d)(2), 200.32(b), 299.13(f), and 299.18(c)(4)(v)), regarding the
use of Web sites to disseminate required information including, for
example, annual State and LEA report cards and a State's consolidated
State plan or individual program State plan. Further, while proposed
Sec. 200.21(b) does not explicitly mention posting of the notice that
an LEA must provide to parents of students in schools identified for
comprehensive or targeted support and improvement on a Web site, some
commenters suggested that a Web site may be the vehicle through which
LEAs meet this requirement.
While a small number of commenters supported the accessibility
requirements generally, several commenters asserted that the
requirements do not sufficiently ensure that parents and other
stakeholders are able to access the documentation and information
discussed in the proposed requirements. Specifically, many commenters
expressed concern regarding the accessibility for individuals with
disabilities, and requested that we strengthen the requirements. For
example, commenters recommended requiring that Web sites conform with
the World Wide Web Consortium's Web Content Accessibility Guidelines
(WCAG) 2.0 Level AA and the Web Accessibility Initiative Accessible
Rich Internet Applications Suite (WAI-ARIA) 1.0 for web content. In
addition, some commenters recommended that States and LEAs ensure that
parents without home access to the Internet are provided with the
information included on State and LEA report cards.
Further, many commenters suggested that the Department strengthen
the provisions to accommodate parents with limited English proficiency
by, for example, requiring that such documentation and information be
available in the most populous languages in the State or LEA, as
applicable, or that the Department define certain terms in the proposed
accessibility requirements (e.g., ``to the extent practicable'').
Finally, several commenters suggested that the Department require
States to provide information included on State report cards in an
easily accessible manner that is publicly downloadable by all visitors
to a State's Web site without restrictions, necessary permissions, or
fees.
Discussion: We agree that all parents and other stakeholders,
including those with disabilities and those who have limited English
proficiency, must have meaningful access to documentation and
information that States and LEAs disseminate. Such access is critical
in order to understand State, LEA, and school performance and progress,
meaningfully engage in reform efforts, and help to ensure that all
children have an opportunity to meet a State's academic standards.
Although the ESEA, as amended by the ESSA, and its implementing
regulations require that certain information on State or LEA Web sites
be ``accessible,'' the requirement that Web sites be accessible to
individuals with disabilities is also based on the Federal civil rights
requirements of Section 504 of the Rehabilitation Act, 29 U.S.C. 794,
title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et
seq., and their implementing regulations, all of which are enforced
against SEAs and LEAs by the Department's Office for Civil Rights
(OCR).
Although the Department does not currently require States and LEAs
to use specific Web site accessibility standards, under the ESEA, as
amended by the ESSA, and Federal civil rights laws and regulations,
States and LEAs must ensure that information provided through
electronic and information technology, such as on Web sites, is
accessible to individuals with disabilities. In OCR's enforcement
experience, where a State or LEA provides required information through
Web sites, it may be difficult to ensure compliance with accessibility
requirements without adherence to modern standards such as the WCAG 2.0
Level AA standard, which includes criteria that provide comprehensive
Web accessibility to individuals with disabilities--including those
with visual, auditory, physical, speech, cognitive, developmental,
learning, and neurological disabilities. Accordingly, we strongly
encourage States and LEAs that disseminate information via Web sites to
consider that standard as they take steps to ensure that their Web
sites comply with requirements of these regulations and with Federal
civil rights laws. WCAG 2.0 has been designed to be technology neutral
to provide Web developers more flexibility to address accessibility of
current as well as future Web technologies; in addition, Level AA
conformance is widely used, indicating that it is generally feasible
for Web developers to implement. The developers of WCAG 2.0 have made
an array of technical resources available on the W3C Web site at no
cost to assist entities in implementing the standard. For more
information, see www.w3.org/WAI/.
Similarly, the Department expects that States and LEAs will provide
access for parents who may not have online access, such as by providing
online access at their local school or LEA administrative office.
Regarding requests to add accessibility requirements to ensure that
parents with limited English proficiency can access documentation and
information, including by defining certain terms in the proposed
accessibility requirements (e.g., ``to the extent practicable''),
please see additional discussion in Sec. 200.21(b)(2).
Finally, with respect to making SEA and LEA report card data
available to be downloaded, while the Department encourages States and
LEAs to make available the information included on report cards in
easily accessible, downloadable formats that are freely open to the
public, the Department declines to impose additional potentially
burdensome requirements on States and LEAS given the extent of
information required by the statute for inclusion on report cards.
Changes: None.
Recommendations To Include Additional Information on State and LEA
Report Cards
Comments: Many commenters recommended that the Department add
additional requirements, data elements, or other information to State
and/or LEA report cards. Specifically, several commenters recommended
that the Department require that report cards
[[Page 86170]]
provide for comparability of all State and LEA report card data at the
State, LEA, and school levels, and that data be presented such that it
can be easily compared across LEAs. Some of these commenters further
requested that the Department specify certain parameters for States
choosing to meet the cross-tabulation assurance under section
1111(g)(2)(N) of the ESEA, as amended by the ESSA, via their State
report cards, including that the data be in certain file formats to
ensure that it can be easily downloaded and analyzed.
Several commenters requested that the Department require additional
data elements or information not required by the statute be included on
State and LEA report cards, including, for example, disaggregation by
additional subgroups such as justice-involved youth and American
Indians; further disaggregation within subgroups currently required
including Asian American/Pacific Islanders, English learners, and
students with disabilities; indication of subgroups too small for
reporting; reporting on whether an LEA chooses the exemption under
Sec. 200.21(g) for a high school identified for comprehensive support
and improvement and, if so, the reason for such exemption; more
prominent information on subgroups whose performance declined so that
school-level declines are not attributed to any one subgroup; data on
access to technology resources; data on access to the arts in high-
versus low-poverty schools; and information on how LEAs will use funds
under title I and elsewhere to support activities that coordinate and
integrate before- and after-school programs.
One commenter appreciated the Department indicating that States and
LEAs can add information related to the number and percentage of
students attaining career and technical proficiencies. Finally, two
commenters requested additional information, including student
achievement data on subject areas in addition to reading/language arts
and mathematics (report cards also require results of the State's
science assessments) and results on the indicators in a State's
accountability system for all schools, including those that have not
been identified as comprehensive or targeted support and improvement
schools.
Discussion: The ESEA, as amended by the ESSA, maintains the
majority of the State and LEA report card provisions required under the
ESEA, as amended by NCLB, and adds several additional reporting
requirements. For example, LEA report cards must continue to include
information on how the academic achievement of students in the LEA
compares to that of students in the State as a whole and, at the school
level, how the academic achievement of students in the school compares
to that of students in the LEA and the State, respectively, in reading/
language arts, mathematics, and science. Further, the ESEA, as amended
by the ESSA, requires that LEA report cards include, for all schools
(not solely schools identified for comprehensive or targeted support
and improvement), results on the indicators in a State's accountability
system including, for example, information on the performance on the
other academic indicator under section 1111(c)(4)(B)(ii) of the ESEA,
as amended by the ESSA, used by the State in the State accountability
system for public elementary schools and secondary schools that are not
high schools; high school graduation rates; and information on the
performance on the other indicator or indicators of School Quality or
Student Success under section 1111(c)(4)(B)(v) of the ESEA, as amended
by the ESSA, used by the State in the State accountability system,
etcetera.
With respect to additional requirements that commenters recommended
the Department add to the State and LEA report card regulations, while
we agree that States and LEAs should strive to develop report cards
that convey data and information in ways that maximize use by parents
and others, we believe that the requirements for State and LEA report
cards under section 1111(h)of the ESEA, as amended by the ESSA, and
Sec. Sec. 200.30 through 200.37 sufficiently ensure that State and LEA
report cards will be transparent and maximally useful to parents and
other stakeholders. Further, States and LEAs can, if they choose to do
so, display graphically, or in other ways, comparisons of State, LEA,
and school performance on data elements other than student academic
achievement on the assessments required under section 1111(b)(2).
States choosing to meet the cross-tabulation assurance under section
1111(g)(2)(N) of the ESEA, as amended by the ESSA, via their State
report cards, can provide the data--as well as other data reported on
report cards--in certain file formats to ensure that it can be easily
downloaded and analyzed. The Department believes that doing so would
facilitate use by a wide range of consumers of report cards, including
people who may use the data to identify trends that may be of use to
States, LEAs, and schools in engaging in data driven decision making.
However, we are not requiring States to do so, as this may impose
additional burden for some States.
With respect to requiring additional information on State and LEA
report cards that is not required under section 1111(h)(1)-(2) of the
ESEA, as amended by the ESSA, and proposed Sec. Sec. 200.30-200.37,
given the extent of information that is required for inclusion on State
and LEA report cards, the Department declines to require additional
information. However, sections 1111(h)(1)(C)(xiv) and (h)(2)(C)(iii) of
the ESEA, as amended by the ESSA, provide for both States and LEAs, at
their discretion, to include additional information that they believe
will help parents and other stakeholders understand State, LEA, and
school performance and progress. Such additional information could
include any or all of the data elements that commenters noted above. In
particular, in light of the student demographics in particular States,
LEAs, or schools, States or LEAs may wish to report on the performance
of additional student subgroups not required under the ESEA, as amended
by the ESSA, or further disaggregate required reporting elements by
subgroups that are not required under the ESEA. For example, States and
LEAs may wish to disaggregate data by subgroups, such as justice-
involved youth or American Indians, that are not required under the
ESSA, as amended by the ESSA. Doing so may help to better identify the
needs of students in these subgroups and support State, LEA, and school
efforts to improve teaching and learning for these students.
In general, States and LEAs have flexibility to go beyond what
section 1111(h)(1)(C), (2)(C) and Sec. Sec. 200.30 through 200.37
require regarding presentation and information required on State and
LEA report cards. For example, States and LEAs can provide report card
data in formats that can be easily downloaded, add additional
information unique to their State and local contexts, and include
additional comparative data or provide mechanisms for the public to
generate such comparisons. The Department supports State and LEA report
cards that both align with the requirements in the ESEA, as amended by
the ESSA, and are tailored to the unique composition and needs of
States and LEAs.
Changes: None.
State and LEA Report Card Overview
Comments: Some commenters supported the overview section in
proposed Sec. Sec. 200.30(b)(2) and 200.31(b)(2) on either or both the
State and LEA report cards, explaining that such a section will help
ensure that
[[Page 86171]]
parents and other stakeholders encounter key metrics about State, LEA,
and school performance as the first information when they review report
cards.
Conversely, some commenters opposed the overview section
requirements on either or both the State and LEA report card. Some
commenters asserted that the overview requirements extend beyond what
is required for State and/or LEA report cards under sections
1111(h)(1)-(2) of the ESEA, as amended by the ESSA. Others asserted
that the parameters were too prescriptive and decisions of content and
format for the overview sections would best be left to States and LEAs
or addressed in non-regulatory guidance. A few commenters specified
that States should be able to decide, in particular, whether or not to
include a school's summative rating on the LEA report card overview for
each school served by the LEA. One commenter recommended that the
Department allow for States to differentiate the content of the State
and LEA report card overview sections so that these sections can be
tailored to what parents need to know most given the particular State
and LEA context. One commenter suggested that providing disaggregated
data for some subgroups but not others on the report card overview
section could be confusing.
Specific to the format of the LEA report card overview for each
school served by the LEA, several commenters contended that the
required information would not fit on a single sheet of paper as
required in proposed Sec. 200.31(b)(3). Others suggested that the
Department be mindful of the need to ensure that the font size on the
LEA report card overview for each school served by the LEA be of
sufficient size to be able to effectively communicate information. One
commenter suggested that the page length of the LEA report card
overview for each school served by the LEA cannot be appropriately
determined until a State finalizes the elements of its accountability
system. Finally, other commenters requested clarification regarding
what exactly constitutes a single sheet of paper.
Discussion: We appreciate the comments that support the State and
LEA report card overview section, and concur that the overview section
will help parents and the public more effectively access and consider
data in engaging in State, LEA, and school reform efforts. Particularly
given the amount of information that State and LEA report cards must
include under the ESEA, as amended by the ESSA, the overview section
serves to highlight certain data elements in order to quickly convey
State, LEA, and school performance and progress. With the flexibility
States are given to include extensive accountability system indicators
in evaluating the performance and progress of schools, a school's
determination is an important piece of summary information that will
help provide a holistic picture of school performance and progress. The
information to be included on the State and LEA overviews can help to
provide context for reviewing the full data elements on State and LEA
report cards.
The State and LEA report card overviews align with the requirement
in sections 1111(h)(1)(B) and 1111(h)(2)(B) of the ESEA, as amended by
the ESSA, that report cards be concise and presented in an
understandable and uniform format. In particular, the overview sections
serve to succinctly convey State, LEA, and school performance and
progress while not abandoning minimum statutory report card
requirements related to transparent and accurate presentation of a
broad range of data and therefore fall squarely within the scope of
section 1111(h) of the ESEA, as amended by the ESSA, consistent with
section 1111(e). As discussed previously in the discussion of Cross-
Cutting Issues, the Department has rulemaking authority under section
410 of GEPA, section 414 of the DEOA, and the section 1601(a) of the
ESEA, as amended by the ESSA. Given that authority, it is not necessary
for the statute to specifically authorize the Secretary to issue a
particular regulatory provision.
Regarding the subgroups included on the overview section, States
and LEAs have discretion as to whether to include all disaggregated
subgroups required under section 1111(c)(2) of the ESEA, as amended by
the ESSA, and Sec. 200.16(a), while including, at a minimum, the
subgroups a State uses for accountability purposes consistent with
Sec. 200.16. While the Department believes that it is critical to
identify the needs of all subgroups for which the statute requires
disaggregated reporting, gathering an understanding of the performance
that led to a school's accountability determination can help frame
school performance overall and provide context for the further
disaggregation that will be provided in the full State and LEA report
cards.
Further, the Department agrees with several commenters that the LEA
overview section for each school served by the LEA must be of
sufficient length and font size to meet the goal of providing critical
information to help parents and other stakeholders understand key
metrics of State, LEA, and school performance. We also agree that
additional flexibility is needed to do so. To help determine the most
appropriate length and font size of the LEA overview for each school
served by the LEA, LEAs should include discussion of this LEA report
card section when they consult with parents in the development of the
LEA report cards as required under Sec. 200.31(b)(1).
Finally, given the concern regarding length of the overview
section, rather than prescribe a particular length, we are deleting the
requirement for that the LEA report card overview for each school
served by the LEA be limited to a single piece of paper. Thus, the
regulations need not clarify what constitutes a single sheet of paper.
Changes: We revised Sec. 200.31(b)(3) to remove the requirement
that the LEA overview for each school served by the LEA be on a single
sheet of paper.
Dissemination of LEA Report Card School-Level Overviews
Comments: Some commenters addressed the requirement in proposed
Sec. 200.31(d)(3)(i) regarding dissemination of the LEA report card
overview for each school served by the LEA. One commenter commended the
Department for including a requirement to provide such overview to
parents of each student enrolled in the LEA by either mail or email.
However, some commenters asked for clarification of the proposed
dissemination requirement. In addition, one commenter expressed
opposition to what the commenter perceived as a requirement to provide
parents with hard copies of the LEA report card overview for each
school. Another commenter opposed the requirement to disseminate the
LEA report card overview to parents of each enrolled student in each
school via either mail or email, asserting that this requirement
extends beyond what section 1111(h)(2)(B)(iii) of the ESEA, as amended
by the ESSA, requires.
Discussion: We appreciate support for the requirement in Sec.
200.31(d)(3)(i) to disseminate the LEA overview section for each school
served by the LEA directly to parents. This provision offers regular
mail and email as examples of how this requirement could be met. Hard
copy dissemination is not required. As suggested by one commenter,
methods such as providing the overview at parent-teacher conferences,
at parent nights, or with students to take home would also be
sufficient to meet this requirement.
Regardless of the method selected for providing this information to
parents,
[[Page 86172]]
we believe that, consistent with the dissemination and accessibility
requirements under section 1111(h)(2)(A) and (B)(iii) of the ESEA, as
amended by the ESSA, key information about school performance must
reach parents directly and in a timely fashion so that they have
relevant information to work effectively with educators and local
school officials during the school year. Moreover, as discussed
previously in the discussion of Cross-Cutting Issues, the Department
has rulemaking authority under section 410 of GEPA, section 414 of the
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA.
Given that rulemaking authority and that these regulations fall within
the scope of section 1111(h) of the ESEA, as amended by the ESSA,
consistent with section 1111(e), it is not necessary for the statute to
specifically authorize the Secretary to issue a particular regulatory
provision.
Changes: We have revised Sec. 200.31(d)(3)(i) to clarify that LEAs
can disseminate the LEA report card overview for each school served by
the LEA directly to parents by means such as email, mail, or other
direct means of distribution.
Report Card Dissemination Timeline Generally
Comments: Several commenters expressed support for the annual
December 31 deadline for States and LEAs to disseminate report cards
under Sec. Sec. 200.30(e) and 200.31(e), suggesting that an annual
deadline would encourage States and LEAs to provide more timely
information to parents and stakeholders. Many commenters opposed the
annual deadline because of concerns related to additional
administrative burden that would be caused by overlapping report card
dissemination and Department reporting timelines. These commenters
offered a number of alternative proposals, including the removal of the
deadline for dissemination of report cards, an alternate deadline of
March 31, and a State-determined deadline that would be included in a
State consolidated plan. Some commenters suggested maintaining the
December 31 deadline, but also allowing States and LEAs to update
report cards after December 31 with data unavailable on December 31.
Some commenters also claimed that the ESEA, as amended by the ESSA,
does not authorize the Department to require a specific deadline for
dissemination of State and LEA report cards. These commenters argued
that December 31 is an arbitrary reporting deadline not found in
statute.
A few commenters cited challenges meeting the deadline specifically
for reporting graduation rates, per pupil expenditures, and
postsecondary enrollment. Responses to those comments are provided
below in separate comment summaries specific to these data elements.
Discussion: We believe that timely report card dissemination, when
combined with the report card overview section requirements in
Sec. Sec. 200.30 and 200.31, will help ensure parents and the public
can more effectively access and use State-, LEA-, and school-level data
to help address achievement, opportunity, and equity gaps during the
school year.
We acknowledge that the newly required report card elements under
the ESEA, as amended by the ESSA, may, initially, be more difficult for
States and LEAs to implement. For this reason, Sec. Sec. 200.30 and
200.31 include a one-time, one-year extension for those reporting
elements. Although we decline to extend the general report card
dissemination deadline, as discussed below, we have revised Sec. Sec.
200.30(e) and 200.31(e) to permit States and LEAs to delay inclusion of
data on per-pupil expenditures on annual State and LEA report cards
until no later than June 30 following the December 31 deadline,
provided that the report cards otherwise meet the December 31
dissemination deadline and include a description of when per-pupil
expenditure data will be made available. We note that specific comments
related to the timeline for reporting graduation rates, per pupil
expenditures, and postsecondary enrollment are discussed more fully
below.
In response to commenters who questioned our authority in this
area, as discussed previously in the discussion of Cross-Cutting
Issues, the Department has rulemaking authority under section 410 of
GEPA, section 414 of the DEOA, and the section 1601(a) of the ESEA, as
amended by the ESSA. Given that rulemaking authority and given that
these regulations fall within the scope of title I, part A of the
statute, consistent with section 1111(e), it is not necessary for the
statute to specifically authorize the Secretary to issue a particular
regulatory provision. The Department believes that December 31 provides
States with sufficient time to report on the required data elements,
while maintaining the goal of timeliness such that parents, teacher,
principals, and other stakeholders can consider the information in
helping to focus school improvement efforts. The December 31 date is
purposefully chosen to balance the needs of States and LEAs in ensuring
accurate data while providing such data in as timely a manner as
possible.
Changes: None.
Graduation Rates Reporting Timeline
Comments: Several commenters opposed the December 31 deadline for
reporting prior year adjusted cohort graduation rates on State and LEA
report cards. Commenters cited several reasons for their opposition.
Some commented that it is an unreasonable timeline because of the
inclusion of summer graduates, and because States use the October 1
enrollment count to determine whether students have dropped out. Others
indicated a preference for continuing to allow States to lag graduation
rates for report card purposes. One commenter suggested that to report
prior year graduation rate data on the report card, it would be
necessary to move the deadline to March 31 or later every year. One
commenter noted that the deadline would require system changes that
would be difficult or impossible to perform without significant
additional resources.
Discussion: We believe that it is important that graduation rate
data is as timely as possible to give stakeholders, including parents,
access to information that is still relevant for their decision making
and to accurately describe the success of a school in the most recent
school year. We understand that some State processes to review and
audit graduation rate data are on a timeline that does not currently
allow for a December release of graduation rate data and this provision
will require some States to adapt their systems to meet the December 31
timeline. However, we do not agree with commenters that indicated that
releasing prior year graduation rate data by December 31 is
unreasonable. By December of 2018, States will have had seven years to
refine their process for producing adjusted cohort graduation rate data
(since the requirements went into effect in 2008 for reporting on the
2010-11 school year). Even with the inclusion of summer graduates,
States should have sufficient time to review and release their data
without the need for significant additional resources.
We also disagree with commenters suggesting that a State should be
permitted to lag its graduation rate data. Data are most useful and
meaningful when they represent the most recent year. If a State reports
lagged data in 2018, then it would be reporting 2016-17 graduation
rates in December of the 2018-19 school year, meaning that the data
available to parents would be a
[[Page 86173]]
year and a half old. This delay will have an adverse impact on the
utility of the data for decision making and transparency, which is one
of the primary purposes of making timely data available on State and
LEA report cards.
Changes: None.
Per-Pupil Expenditures Reporting Timeline--Annual Reporting
Comments: Many commenters requested that, for reporting per-pupil
expenditures under proposed Sec. 200.35, the Department allow
additional flexibility beyond the one-time, one-year extension a State
may request under proposed Sec. Sec. 200.30(e)(2) and 200.31(e)(2) if
the State or its LEAs cannot meet the December 31, 2018, deadline for
reporting newly requested information, such as per-pupil expenditures,
on report cards. These commenters stated that reporting per-pupil
expenditures annually by December 31 is an unreasonable timeline
because of possible auditor shortages, inconsistencies with single
audit requirements for Federal grantees, incompatible LEA expenditure
reporting timelines, which in some cases are established in State law,
and the increased likelihood of inaccurate data production if States
must publish report cards with per-pupil expenditure data shortly after
receiving unverified LEA expenditure reports.
A majority of these commenters requested that we change the annual
per-pupil expenditure reporting deadline to June 30 annually. Other
commenters suggested extending the deadline to March 31, while some
recommended using a State-determined date for publishing per-pupil
expenditure data on report cards. One commenter supported the December
31 annual deadline for per-pupil expenditures and two additional
commenters generally supported the December 31 annual deadline for
disseminating report cards, although they did not specifically mention
per-pupil expenditures.
Discussion: We agree with commenters that States and LEAs should
report per-pupil expenditure data that is accurate, has been thoroughly
reviewed, and clearly reflects how resources are allocated in schools.
We also agree with commenters that an annual reporting deadline of June
30 would provide the appropriate amount of time for States and LEAs to
ensure high-quality data is publicly available.
Therefore, we have added new Sec. Sec. 200.30(e)(2) and
200.31(e)(2), which permit a State or LEA that is unable to include
per-pupil expenditures on report cards by the December 31 deadline to
update its report card with such data no later than the following June
30. Additionally, the Department will provide technical assistance and
support to States and LEAs in implementing the per-pupil expenditure
reporting requirement.
Changes: We have revised Sec. Sec. 200.30(e) and 200.31(e) to
clarify when newly required information must be included on State and
LEA report cards and to permit States and LEAs to delay inclusion of
data on per-pupil expenditures on annual State and LEA report cards
until no later than June 30, provided that the report cards otherwise
meet the December 31 dissemination deadline and include a brief
description of when per-pupil expenditure data will be made available.
Per-Pupil Expenditures Reporting Timeline--First Time Reporting of
These Data
Comments: Several commenters noted that some State and LEA data
collection systems may be unable to collect and report school year
2017-2018 per-pupil expenditure data. Some commenters indicated that
SEAs have invested in sophisticated data systems that focus on student
achievement over the past few years, but have not invested in
comparable fiscal tracking systems. Commenters also stated that
maintaining the statutory implementation timelines would mean fewer SEA
resources could be devoted to the development and implementation of new
accountability systems. These commenters requested that the Department
allow flexibility for States and LEAs that do not have the capacity to
implement the per-pupil expenditure reporting requirement by the
December 31, 2018, deadline proposed in the regulations.
Discussion: To accommodate potential challenges in implementing new
report card requirements, States and their LEAs may request a one-time,
one-year extension to build technical capacity, where necessary. We
believe that this flexibility, in addition to the option to defer
annual reporting of per-pupil expenditures from December 31, 2018, to
the following June 30, provides States a sufficient amount of time for
State fiscal collection and reporting systems to be aligned with
statutory and regulatory requirements. As a result of this additional
flexibility, if a State is unable to report per-pupil expenditures in
school year 2017-2018 by June 30, 2019, and is granted a one-time, one-
year extension their plan and timeline would outline how the State will
include school year 2018-2019 per-pupil expenditure information on
State and local report cards by June 30, 2020.
Changes: None.
Postsecondary Enrollment Reporting Timeline
Comments: Some commenters expressed concerns with timelines for
postsecondary enrollment reporting. Two commenters indicated that due
to processing time or collection timelines, States may not be able to
report postsecondary data on the immediately preceding school year by
December 31. One commenter provided data that indicated that seven
percent of all students and 11 percent of low income, high minority
students would not be captured in the calculation if data on the
immediately preceding school year are required by December 31. Instead,
commenters recommended that States be allowed to lag their
postsecondary enrollment data. One commenter indicated that the
requirement to begin reporting in 2017 is too ambitious and suggested
that States establish their own reporting timeline following
consultation with stakeholders. Another commenter recommended that we
allow for a delay between graduation and postsecondary actions for
reporting this metric if the student was unable to enroll due to health
problems or some other circumstance.
Discussion: We appreciate commenters that noted the challenges of
reporting data on the immediately preceding school year by December 31
due to collection and processing timelines. While the statute specifies
that the postsecondary enrollment metric must be defined in such a way
that it captures students who enrolled in the first academic year that
follows their graduation (or the immediately following academic year),
the Department does not believe that the language implies that States
are expected to include the data representing the graduating class from
the immediately preceding school year on their report cards. We
recognize that the academic year could include students that enroll in
the fall, spring, or summer following their graduation from high
school. Since report cards are due before the completion of the full
academic year, it would not be possible for States to include complete
postsecondary data on their report cards. As such, the Department's
expectation is that postsecondary enrollment will be lagged (i.e., the
report card produced in December of 2018 will contain data on the
graduating class from the 2016-17 school year instead of the 2017-18
school year). While we recognize that reporting on
[[Page 86174]]
this new metric by the time report cards for the 2017-2018 school year
must be disseminated may be challenging for some States and LEAs, we
note that under Sec. Sec. 200.30(e)(2) and 200.31(e)(2) a State may
request a one-time, one-year extension for reporting on some or all of
the new information, including postsecondary enrollment data, that must
be included on State and LEA report cards.
We also recognize that there are circumstances that prevent
students from immediately enrolling in programs of postsecondary
education, but the time frame in which students can be included in this
metric is also in the statute, which specifies that it must be in the
first academic year that follows the student's graduation. However, we
believe that the first academic year can include students that first
enroll in the fall, spring, or summer, which allows for the inclusions
of students that may be unable to enroll by the fall.
Changes: None.
Additional Statutory Subgroups Generally
Comments: Some commenters submitted general comments related to
three new subgroups on which States must disaggregate certain
information on report cards as required under section 1111(h)(1)(C)(ii)
of the ESEA, as amended by the ESSA: Children who are homeless,
children in foster care, and children with parents who are members of
the Armed Forces. A few commenters indicated their support for the
definitions included in the regulations, which would require States to
use definitions consistent with other Federal laws for these subgroups
to ensure consistency in reporting across States. Some commenters noted
that reporting data on these new subgroups would create privacy
concerns or other sensitive issues, since there will be small numbers
of students in each group, particularly at the LEA and school levels.
Discussion: We appreciate comments supporting the definitions for
the new subgroups required under the ESEA, as amended by the ESSA. We
believe that these definitions will not only help ensure consistency
across States but also align with definitions currently used for other
programs supporting these populations, which will help our
understanding of the outcomes of these students across programs. We
agree with commenters that these populations may be small and that it
is important to protect the privacy of small subgroups of students. In
this regard, section 1111(i) of the ESEA, as amended by the ESSA,
clearly addresses privacy of student data by requiring data to be
collected and disseminated in a manner that protects the privacy of
individual students, consistent with section 444 of GEPA (commonly
known as the Family Educational Rights and Privacy Act (FERPA)).
Section 1111(i) further states that disaggregation shall not be
required if the n-size is small enough to reveal personally
identifiable information or information that is not statistically
sound. The Department has reinforced this requirement by including it
in Sec. Sec. 200.30(f)(2) and 200.31(f) of the regulations.
Changes: None.
Status as a Child in Foster Care
Comments: Some commenters noted that some States use a more
expansive definition of children in foster care, which includes not
just children living in 24-hour substitute care, but also children who
may not yet have been removed from their homes but for whom the Title
IV-E agency has placement responsibility. They requested that the
requirements allow a State with an expanded definition to include these
students in its status as a child in foster care subgroup.
Discussion: We do not agree with the recommendation that a State
with an expanded definition of students in foster care should be
permitted to use this definition for the purposes of reporting on this
subgroup in title I report cards. Children who are placed in foster
care and children who are allowed to remain at home under State custody
represent two distinct populations; thus we believe it is important to
preserve the subgroup being reported as those students who are placed
in foster care. We believe that requiring disaggregation for the
students placed in foster care will help States, State child welfare
agencies, and other stakeholders gain a better understanding of the
educational outcomes of a highly mobile population and the impact that
being removed from home has on a child's ability to learn. As such, we
believe that it is important to collect data only on those children who
are placed in traditional out-of-home foster care. These data will be
most useful to stakeholders if all children are reported using the same
definition of children in foster care, and using an existing definition
is the cleanest approach to implementing this new requirement. Further,
this definition is consistent with the definition used in the non-
regulatory guidance that we issued jointly with the Department of
Health and Human Services, ``Ensuring Educational Stability for
Children in Foster Care'' (Children in Foster Care Guidance) which
helps to ensure consistency across program requirements. The Foster
Care Guidance can be found at: http://www2.ed.gov/policy/elsec/leg/essa/edhhsfostercarenonregulatorguide.pdf.
Changes: None.
Status as a Military-Connected Student
Comments: Several commenters supported the requirement in proposed
Sec. 200.30 to report academic results for students with a parent who
is a member of the Armed Forces on active duty. Several commenters
suggested proposed Sec. 200.30 should also require identifiers for
students with parents serving in the Reserve components of the military
services or full or part-time National Guard. They argued that
regardless of the specific military connection, parental deployment
impacts children in the same manner. Two commenters suggested the
identifier should also be extended to military-connected students who
are eligible for special education services under the IDEA.
Two commenters requested the Department expand the definition of
parent to include caretakers such as legal guardians, custodians,
State-determined definitions of the legal guardians and custodians, and
stepparents. These commenters also requested the Department specify at
what time during the school year service by a military-connected parent
is to be counted for purposes of identification.
One commenter asked the Department to explain the definition of all
active duty and whether it includes deployed military parents only or
also full-time military who are not deployed. One commenter asked why
Congress included this identifier under the ESEA, as amended by the
ESSA, and if there is evidence of delayed academic progress for
children of parents in the military. One commenter argued the military-
connected identifier will result in an unlawful violation of privacy.
One commenter requested that the Impact Aid regulatory requirements
and these regulations be aligned, where possible, to limit
administrative burden for LEAs, and that the Department gather feedback
from LEAs that educate a significant number of military-connected
students to ensure effective implementation of the new requirement. One
commenter requested that the military-connected identifier be aligned
with the reporting requirements under 20 U.S.C. 7703 (i.e., the Impact
Aid program).
Discussion: We agree with commenters that students with parents
serving full-time in the National Guard face the same challenges as
students
[[Page 86175]]
with parents on active duty in the Armed Forces. We also recognize
that, as part of the process for developing proposed assessment
regulations under title I, part A, the negotiated rulemaking committee
reached consensus on regulations in which the issue of disaggregating
achievement data for students with parents on active duty in the Armed
Forces or on full-time National Guard duty is addressed. The negotiated
rulemaking committee, relying on the same rationale as commenters,
recommended that the Department require that State assessment systems
be able to disaggregate assessment results for military-connected
students to include those with parents on full-time National Guard
duty. This recommendation is reflected in the Department's proposed
assessment regulations, which require that State assessment systems
enable results to be disaggregated within each State, LEA, and school
by students with a parent who is a member of the Armed Forces on active
duty or serves on full-time National Guard duty, where ``armed
forces,'' ``active duty,'' and ``full-time National Guard duty'' have
the same meanings given them in 10 U.S.C. 101(a)(4), 101(d)(1), and
101(d)(5). Additionally, because section 1111(h)(1)(C)(ii) of the ESEA,
as amended by the ESSA, (which we have clarified in Sec.
200.30(f)(iv)) cross-references the statutory definition of ``full-time
National Guard duty'' in 10 U.S.C. 101(d)(5), it is unclear if Congress
intended to extend the military connected identifier to include student
with parents on ``full-time National Guard duty.'' Given these
considerations, the Department agrees with commenters that in
disaggregating information on student achievement on the State's
academic assessments based a student's military-connected status,
States and LEAs should be required to include students with a parent
who is a member of the Armed Forces on active duty as well as students
with a parent who serves on full-time National Guard duty in the
subgroup of students with a parent who is a member of the Armed Forces
on active duty.
We recognize the importance of service in the Reserve components of
the military services and part-time National Guard. We note, however,
that the statute focuses on full-time and active duty service in the
military. As such, the Department declines to further extend the
requirement regarding disaggregation by military-connected status.
We appreciate requests for additional clarification related to
legal guardian status and when service by a military connected parent
are to be counted for purposes of identification, but believes these
questions are best addressed in non-regulatory guidance. We note
though, that section 8101(38) defines a parent to include a legal
guardian. With respect to the meaning of active duty, the term is
clearly defined in the Sec. 200.30(f)(iv)(B) consistent with the
statutory definition in 10 U.S.C. 101(d)(1) and, as a result, the
Department does not believe additional clarification is needed.
However, the Department will consider providing additional information
regarding this term in non-regulatory guidance.
The Department is unable to provide additional clarity related to
the intent of Congress in requiring States and LEAs to disaggregate
student achievement based on military-connected status. Nor is the
Department able to provide evidence of delayed academic progress for
children of parents in the military, primarily because the requirement
to track academic performance of this subgroup of students did not
exist prior to the enactment of the ESSA. The Department respects the
concerns a commenter raised about student privacy, particularly of
military-connected students, but is comforted by strong privacy
protections under the ESEA, as amended by the ESSA, FERPA, and Sec.
200.30, which it expects will be faithfully implemented by States and
LEAs.
Although the Department declines to require States and LEAs to
further disaggregate the military-connected student subgroup to
distinguish between military connected students who utilize special
education services under the IDEA and those that do not, the Department
encourages State and LEAs to include reporting on additional subgroups,
as appropriate. Further, we remind commenters that under section
1111(g)(2)(N) of the ESEA, as amended by the ESSA, States are able to
provide cross-tabulated information by additional subgroups beyond the
minimum requirements, which include major racial and ethnic group,
gender, English proficiency status, and children with or without
disabilities.
While the Department seeks to create consistency across program
requirements where possible, there is a misalignment of military-
connected statutory definitions between 20 U.S.C. 7703 (i.e., the
Impact Aid program) and definitions under the ESEA that reference 10
U.S.C. 101. Under Impact Aid, students are identified if they have a
parent on active duty in the uniformed services (as defined in 37
U.S.C. 101) that do or do not reside on Federal property, while title I
of the ESEA, as amended by the ESSA, references definitions of member
of the Armed Forces on active duty or who serves on full-time National
Guard duty (as defined in 10 U.S.C. 101). Further, the procedures for
counting military students under the Impact Aid statute are more
specific than military subgroup reporting requirements under the ESEA,
as amended by the ESSA. Lastly, the Department will take into
consideration the request to gather feedback from LEAs that educate a
significant number of military-connected students and encourages SEAs
to complete the same type of outreach as part of their required
consolidated State plan consultation activities.
Changes: We have revised Sec. 200.30(f)(iv) to clarify that, for
purposes of reporting data on State and LEA report cards by military-
connected status, a parent who is a member of the Armed Forces on
active duty includes a parent on full-time National Guard duty. In so
doing, we have further defined ``full-time National Guard duty''
consistent with 10 U.S.C. 101(d)(5). In addition, we made conforming
edits in Sec. 200.33(a)(3)(ii)(F).
Section 200.30 Annual State Report Card
Demographic and Achievement Data for Charter School Students by Charter
School Authorizer
Comments: Many commenters supported the proposed requirement in
Sec. 200.30(a)(2)(ii) that State report cards include certain
information for each authorized public chartering agency in the State,
explaining that reporting this information would increase transparency
and accountability for charter school authorizers. Other commenters,
however, opposed this requirement, including some who suggested
striking the requirement. Some commenters asserted the Department lacks
the authority to require this information to be included on report
cards because the statute does not require it. Other commenters
indicated that it would be complicated and burdensome for States to
identify the required comparison group, and that this complexity could
undermine the goal of transparency. Some commenters suggested that the
Department remove the comparison group component of the provisions and
instead require States to report solely on the demographic composition
and achievement of students in charter schools organized by charter
authorizer.
Discussion: We appreciate the support for this provision from some
commenters. With respect to the
[[Page 86176]]
Department's authority to issue this requirement, as discussed
previously in the discussion of Cross-Cutting Issues, the Department
has rulemaking authority under section 410 of GEPA, section 414 of the
DEOA, and the section 1601(a) of the ESEA, as amended by the ESSA.
Given that rulemaking authority, it is not necessary for the statute to
specifically authorize the Secretary to issue a particular regulatory
provision. Moreover, the Department believes that transparency
regarding the demographic composition and student achievement of
charter school students, as compared to that of the relevant LEA or
LEAs, falls within the scope of title I, part A of the statute,
consistent with section 1111(e) and is necessary to advance the overall
purpose of title I, which is ``to provide all children significant
opportunity to receive a fair, equitable, and high quality education
and to close educational achievement gaps.'' We note that providing
this information by authorizer is particularly important given that
authorizers generally have a significant oversight role with respect to
the charter schools they authorize, and parents and other stakeholders
may not be able to easily access this information by authorizer absent
this requirement.
With respect to the comments regarding the potential difficulties
associated with identifying an appropriate comparison group, the
regulations provide flexibility for a State to determine the
appropriate comparison, which may include the LEA or LEAs from which
the charter school draws a significant portion of its students or a
more specific, State-determined geographic community within an LEA. To
ensure they are able to determine the appropriate comparison, we
encourage States to consult with the charter school community,
including authorized public chartering agencies. Further, we believe
the benefits that will result from this reporting requirement in terms
of increased transparency and accountability for this growing segment
of public schools outweigh any burden it might impose on a State.
Changes: None.
Section 200.32 Description and Results of a State's Accountability
System
General Comments
Comments: A few commenters expressed support for the requirements
in proposed Sec. 200.32 that State and LEA report cards include
information on and results from a States' accountability system,
including the requirement in proposed Sec. 200.32(c)(2) and (c)(3)
that LEA report cards include the reason that led to a school's
identification as a comprehensive or targeted support and improvement
school. One commenter noted that requiring the reason for
identification will help LEA and school staff target school needs.
However, some commenters opposed the requirement that State and LEA
report cards include a school's identification as a comprehensive or
targeted support and improvement school and the reason that led to such
identification, suggesting that these particular requirements extend
beyond what sections 1111(h)(1)(C) and (h)(2)(C) of the ESEA, as
amended by the ESSA, require. Another commenter suggested that proposed
Sec. 200.32(c)(2) and (c)(3) be expanded to require that LEA report
cards include additional information regarding a school's
identification as a comprehensive or targeted support and improvement
school, specifically ``any missed targets.'' A few commenters requested
that State and LEA report cards include additional information related
to a State's minimum n-size for accountability, such as the number and
percentage of all students and students in each subgroup for whose
results schools in the LEA are not held accountable in the State's
system of meaningful differentiation.
Two commenters supported the option in proposed Sec. 200.32(b) for
State and LEA report cards to provide the Web address or URL of, or a
direct link to, the State's State plan or other location on the SEA's
Web site where one can access the required description of a State's
accountability system. Finally, one commenter requested that the
Department replace the term ``rating'' with the term ``determination.''
Discussion: We appreciate the support of some commenters for
various provisions in Sec. 200.32. Sections 1111(h)(1)(C)(i)(V) and
(h)(2)(C) of the ESEA, as amended by the ESSA, require that State and
LEA report cards include the names of all schools identified by the
State for comprehensive support and improvement or implementing
targeted support and improvement plans. Further, we believe that, in
conjunction with the identification of a school as a comprehensive or
targeted support and improvement school, it is important for State and
LEA report cards to indicate the reason that led to a school's
identification in order to help focus school, parent, and community
efforts to improve teaching and learning for all students and
particularly for historically underperforming subgroups of students. As
discussed previously in the discussion of Cross-Cutting Issues, the
Department has rulemaking authority under section 410 of GEPA, section
414 of the DEOA, and the section 1601(a) of the ESEA, as amended by the
ESSA. Given that rulemaking authority and that these regulations fall
squarely within the scope of section 1111(h) of the ESEA, as amended by
the ESSA, consistent with section 1111(e), it is not necessary for the
statute to specifically authorize the Secretary to issue a particular
regulatory provision.
We decline to require additional information on State and LEA
report cards related specifically to schools identified as
comprehensive or targeted support and improvement or implications of a
State's minimum n-size beyond what section 1111(h)(1)(C)(i) of the
ESEA, as amended by the ESSA, and Sec. 200.32 require. However, States
and LEAs may include any additional information that they believe will
provide parents and other stakeholders with important information about
school performance and progress. Further, with respect to one
commenter's request for additional information regarding a State's
minimum n-size, we note that Sec. 299.17(b)(4) requires States to
provide additional detail related to their minimum n-size in either
their consolidated State plan or individual title I plan. Thus, because
Sec. 299.13(f) requires the State plan to be published on a State's
Web site, such information will be publicly available.
We concur with the commenters who supported the option to allow
States and LEAs to provide the Web address or URL of, or a direct link
to, the State's State plan or other location on the State's Web site
where one can access the description of a State's accountability system
required under section 1111(h)(1)(C)(i), (h)(2) of the ESEA, as amended
by the ESSA, and Sec. 200.32. Given the amount of information on State
and LEA report cards, we recognize that a detailed description of some
of the accountability system elements may not add significantly to
parents' or other stakeholders' understanding of school performance and
progress and thus believe it is appropriate to allow the State or LEA
to provide a Web address for, or direct link to, the State plan or
another location on the SEA's Web site for detailed information on the
accountability system. We do encourage States and LEAs, in developing
report cards, to consider the amount of information needed to help
parents and other stakeholders engage in and understand the State
accountability system. Finally, the Department is
[[Page 86177]]
replacing the term ``rating'' with ``determination'' for the same
reasons as we discussed previously in Sec. 200.18.
Changes: We have removed the term summative ``rating'' in final
Sec. 200.32(c)(4) and replaced it with ``determination.''.
Section 200.33 Calculations for Reporting on Student Achievement and
Progress Toward Meeting Long-Term Goals
Reporting on Achievement
Comments: Two commenters supported the requirement in Sec.
200.33(a)(3)(iii) for calculating and reporting the results of students
at each level of achievement, while others opposed it. A few commenters
requested that States be able to report information on student
achievement using something other than percent proficient, including
scale scores or a performance index. Other commenters suggested that it
could be confusing to provide two different calculations for percent
proficient, with some commenters elaborating that reporting both
percentage of students tested and not tested in addition to proficiency
based on valid test scores would be sufficient to reach appropriate
conclusions regarding State, LEA, and school achievement information.
Finally, some commenters requested that the Department add a
requirement that States either notify parents of students in schools
with differences in proficiency rates or explain on State and LEA
report cards the difference between the two different proficiency
calculations.
Discussion: We appreciate commenters who supported the requirement
in Sec. 200.33(a)(3)(iii). Section 1111(c)(4)(E)(ii) of the ESEA, as
amended by the ESSA, requires that States measure, calculate, and
report on the Academic Achievement indicator under section
1111(c)(4)(B)(i), in a manner in which the denominator includes the
greater of either 95 percent of all such students, or 95 percent of all
such students in the subgroup, as the case may be; or the number of
students participating in the assessments. Thus, with respect to this
indicator of a State's accountability system, a school's performance
will be based on this calculation. Because States will use this
calculation for accountability purposes, we believe it is important to
provide States, LEAs, and schools with information on student
achievement on the reading/language arts, mathematics, and science
academic assessments described under section 1111(b)(2) that is based
on this calculation. However, we also believe that it is important to
provide information on student achievement based on the number of valid
test scores, as that represents the achievement of students that
actually took the assessment. Together, these two calculations will
help ensure that parents, teachers, principals, and other key
stakeholders have access to a more nuanced picture of State, LEA, and
school performance on the assessments required under the ESEA, as
amended by the ESSA.
With respect to reporting on student achievement using a metric
other than percent proficient, sections 1111(h)(1)(C)(xiv) and
(h)(2)(C)(2)(iii) of the ESEA, as amended by the ESSA, provide for
States and LEAs to include on report cards any additional information
they believe will best provide parents, students, and other members of
the public with information regarding the progress of each of the
State's public elementary and secondary schools. This could include
additional metrics of school, LEA, and State performance.
Changes: None.
Reporting Overall and by Grade
Comments: None.
Discussion: We wish to clarify that, in addition to State and LEA
report cards including the percentage of students performing at each
level of achievement under section 1111(b)(1)(A) of the ESEA, as
amended by the ESSA, on the academic assessments under section
1111(b)(2) by grade, State and LEA report cards must include such
information overall. In doing so, report cards will convey student
achievement for all students at each grade-level tested and also for
the State, LEA, and school as a whole. Thus, parents and other
stakeholders will have a targeted, as well as more holistic,
understanding of student achievement and be able to identify trends by
grade and overall. Requiring reporting of these results overall is
particularly important for LEA report cards that include information
for each school served by the LEA, as small schools may not have enough
students by grade in order to meet a State's minimum n-size for
reporting but may have enough students overall by school.
Changes: We have revised Sec. 200.33(a)(1) to require reporting
overall and by grade.
Section 200.34 High School Graduation Rate
General
Comments: A few commenters generally supported the requirements for
calculating the four-year adjusted cohort graduation rate in proposed
Sec. 200.34, while another commenter noted that they were little
changed from the requirements under the previous regulations. One
commenter objected to the four-year graduation rate because some
students may need less time and some may need more time to graduate.
Another commenter recommended attaching more value to a high school
diploma.
Discussion: We appreciate support from commenters for regulations
supporting on the calculation and reporting of meaningful four-year
cohort graduation rates, and agree that they are very similar to the
previous regulations. One important change, however, is that States and
LEAs now may include in the numerator of the calculation students with
the most significant cognitive disabilities who were assessed using the
alternate assessment aligned to alternate academic achievement
standards and receive State-defined alternate diplomas. We believe that
the four-year adjusted cohort rate is an appropriate measure because it
reflects the typical amount of time required to obtain a high school
diploma, but we note that the regulations permit States to implement an
extended-year graduation rate. Finally, the significant role of
graduation rates for high schools in statewide accountability systems
demonstrates the high value attached to a high school diploma as an
essential outcome for all students under the ESEA, as amended by the
ESSA.
Changes: None.
Comments: A few commenters raised technical considerations related
to the adjusted cohort graduation rate, including the need to
accurately track students that move between schools, business rules
that may be necessary to account for different types of diplomas or
alternative schools, and the importance of defining a ninth-grade
cohort early in the school year.
Discussion: We believe that the requirements in the final
regulations for calculating the adjusted cohort graduation rate,
combined with State experience in implementing these requirements,
generally provide both the guidance and flexibility that States need to
address the technical concerns noted by the commenters. The adjusted
cohort graduation rate accounts for many of the issues identified by
commenters in its design. For example, as reflected in Sec. 200.34(b),
LEAs and schools are required to track students throughout their time
in the cohort. Moreover, to remove a student from a cohort, schools and
LEAs must confirm in writing the basis for such removal. Additionally,
Sec. 200.34(a)(2), consistent
[[Page 86178]]
with section 8101(25)(A)(i) and (23)(A)(i) of the ESEA, as amended by
the ESSA, includes language that will ensure that the cohort is formed
early enough in the year that it can account for most attrition, since
it requires that a new cohort of students is formed no later than the
date by which student membership data is collected by States for
submission to NCES, which is typically near October 1. States should
establish clear business rules and internal controls so that graduation
rates information is tracked accurately at the school, LEA, and State
levels.
Changes: None.
Comments: Some commenters suggested alternative metrics to replace
or to report in addition to the adjusted cohort graduation rate, such
as a completion indicator for students who finish high school using
alternate pathways and timelines or a one-year graduation rate for
certain schools designed to reengage students who are over age. Another
commenter asserted that States should be permitted to select or define
their own graduation rate measure.
Discussion: The regulations are consistent with section
1111(h)(1)(C)(iii)(II) and (h)(2)(C) of the ESEA, as amended by the
ESSA, which require that a State and its LEAs calculate and report a
four-year adjusted cohort graduation rate. A State may also calculate
and report, at its discretion, one or more extended-year adjusted
cohort graduation rates. Completer rates and other metrics that do not
track students through their high school career mask critical
information about student outcomes, such as students who drop out
earlier in their high school career or students who take an extended
period of time to graduate. While not required, States may include
additional metrics that provide supplemental information about students
completing high school through alternative routes or programs.
Changes: None.
Comments: One commenter requested clarification in the regulations
about the inclusion of summer graduates in the four-year adjusted
cohort graduation rate.
Discussion: Section 8101(23) and (25) of the ESEA, as amended by
the ESSA, provides for students to be included as graduates in the
numerator if they earn a regular high school diploma, or State-defined
alternate diploma for students with the most significant cognitive
disabilities, before, during, or at the conclusion of their fourth year
of high school or a summer session immediately following the fourth
year of high school. This permits, but does not require, a State to
include summer graduates. If a State chooses not to include summer
graduates in the numerator, those students still must be included in
the denominator if they are part of the original cohort for that class.
Changes: None.
Regular High School Diploma Definition
Comments: Many commenters provided input on the definition of the
term ``regular high school diploma'' under proposed Sec. 200.34(c)(2),
particularly insofar as the definition provides that it may not include
a diploma based on meeting IEP goals that are not fully aligned with
the State's grade-level academic content standards. Although one
commenter supported this language, the remaining commenters opposed
some or all of the language around the IEP diploma. Some commenters
asserted that the Department should not add to the plain language of
the statute, but the majority of commenters opposed the language
because of the potential unintended consequences of allowing an IEP
diploma that is based on grade-level standards to be treated as
equivalent to a regular high school diploma.
Discussion: We agree with the majority of commenters that a regular
high school diploma should not include a diploma based on meeting IEP
goals, regardless of whether those goals are fully aligned with a
State's grade-level academic content standards. Under 34 CFR
300.320(a)(2), each child's IEP must include a statement of measurable
annual goals designed to meet the child's needs that result from the
child's disability to enable the child to be involved and make progress
in the general education curriculum and to meet each of the child's
other educational needs that result from the child's disability.
Although the use of standards-based IEPs has greatly expanded, IEP
goals cannot serve as a proxy for determining whether a student has met
a State's grade-level academic content standards. Therefore, a diploma
based on meeting IEP goals will not provide a sufficient basis for
determining that the student has met a State's grade-level academic
content standards; rather, it will only demonstrate that the student
has attained his or her IEP goals during the annual period covered by
the IEP. Therefore, a diploma based on attainment of IEP goals,
regardless of whether the IEP goals are fully aligned with a State's
grade-level content standards, should not be treated as a regular high
school diploma, and we are revising the final regulations to clarify
this point. Finally, as discussed previously in the section on Cross-
Cutting Issues, the Department's rulemaking authority under section 410
of GEPA, section 414 of the DEOA, and section 1601(a) of the ESEA, as
amended by the ESSA, allows it to issue regulatory provisions not
specifically authorized by statute, and we appropriately exercise that
authority here given that the regulations fall squarely within, and are
reasonably necessary to ensure compliance with, section 1111(h) of the
ESEA, as amended by the ESSA, consistent with section 1111(e).
Changes: We have revised proposed Sec. 200.34(c)(2) to remove the
language ``that are not fully aligned with the State's grade level
academic content standards'' following ``such as a diploma based on
meeting IEP goals.''
State-Defined Alternate Diplomas
Comments: Some commenters supported proposed Sec.
200.34(a)(1)(ii), which requires students receiving a State-defined
alternate diploma to be counted in the numerator of the four-year
adjusted cohort graduation rate. However, other commenters opposed the
retroactive reporting requirements in proposed Sec. 200.34(e)(ii)(4)
for students who take longer than 4 years to earn an alternate diploma.
These commenters opposed the proposed method of including students with
the most significant cognitive disabilities who earn a State-defined
alternate diploma in the adjusted cohort graduation rate only through
retroactive reporting. These commenters recommended revising the final
regulations to allow students to be included in the year that they
graduate (instead of tying them to their original cohort and including
them retroactively once they graduate). Commenters also recommended
requiring disaggregation of the number and percentage of students with
disabilities reported in the adjusted cohort graduation rate by (1)
students receiving a regular high school diploma and (2) students
receiving a State-defined alternate diploma.
Discussion: We appreciate the comments supporting the inclusion of
students receiving a State-defined alternate diploma in graduation rate
calculations. We also agree with commenters who recommended including
such students in the four-year adjusted cohort graduation rate
calculation in the year in which they graduate, while still ensuring
that they are accounted for in a cohort, and are revising the final
regulations accordingly. The final regulations will require a State to
keep such a student in his or her original cohort until grade
[[Page 86179]]
12 and, at which time the IEP team can evaluate if the student is
eligible and on track to receive the State-defined alternate diploma
within the time period for which the State ensures the availability of
FAPE. The final regulations ensure that a student removed from the
cohort in grade 12 will be reassigned to the four-year graduation
cohort of the year of exit, regardless of how the student exits.
Additionally, the language allows for a meaningful way to include
students with the most significant cognitive disabilities in extended-
year graduation rates, if such rates are adopted by the State, by
including such students in the extended-year rates associated with
their new cohort (i.e., in the subsequent years following their
inclusion in the four-year graduation rate). Finally, the change allows
for students with the most significant disabilities to be meaningfully
included in measuring school and LEA performance under a State's
accountability system.
We decline to require States to disaggregate graduation rates for
students with disabilities those receiving a regular high school
diploma and the State-defined alternate diploma, in part because we
believe minimum n-size requirements would limit meaningful reporting of
students receiving the alternate diploma in most districts. While
States have discretion to include such disaggregated graduation rate
data for students with disabilities on their report cards, they must
comply with applicable local, State, and Federal privacy protections.
Changes: We have revised Sec. 200.34(e)(4) by removing the
language that required States to retroactively update the adjusted
cohort graduation rate annually for students with the most significant
cognitive disabilities receiving the State-defined alternate diploma.
We have also added Sec. 200.34(b)(5) regarding adjusting the cohort
for students with the most significant cognitive disabilities who
receive a State-defined alternate diploma.
Comments: One commenter requested that the Department clearly state
that a State-defined alternate diploma received by a student with the
most significant cognitive disabilities should not be treated as a
regular high school diploma for the purposes of determining the
termination of services under IDEA.
Discussion: Consistent with the definition of ``regular high school
diploma'' in section 8101(43) of the ESEA, as amended by the ESSA, a
regular high school diploma must be fully aligned with State standards,
and may not be aligned with the alternate academic achievement
standards described in section 1111(b)(1)(E) of the ESEA. We agree with
commenters that graduation from high school with a State-defined
alternate diploma does not terminate a student's entitlement to FAPE
under IDEA, provided that the student continues to meet the definition
of ``child with a disability'' in section 602(3) of the IDEA and is
within the State's mandated age range for the provision of FAPE.
Entitlement to FAPE under IDEA could last until an eligible
student's 22nd birthday, depending on State law or practice. However,
under 34 CFR 300.102(a)(3)(i) a State's obligation to make FAPE
available to all children with disabilities does not apply with respect
to children with disabilities who have graduated from high school with
a regular high school diploma. However, Sec. 300.102(a)(3)(ii)
clarifies that this exception does not apply to children with
disabilities who have not graduated from high school with a regular
high school diploma. Because a State-defined alternate diploma for
students with the most significant cognitive disabilities does not
align with the definition of a regular high school diploma, graduation
from high school with such a diploma does not terminate the obligation
of a State and its public agencies to make FAPE available until
students awarded such a diploma are appropriately exited from special
education and related services in accordance with Sec. 300.305(e)(1)
of the IDEA Part B regulations or exceed the age of eligibility for the
provision of FAPE under State law. Because the IDEA regulations already
address this obligation, no further clarification in these final
regulations is needed.
Changes: None.
Extended-Year Graduation Rate
Comments: Several commenters opposed the requirement in proposed
Sec. 200.34(d) that would limit an extended-year graduation rate to
seven years, and recommended that the Department change the proposed
number of years from seven to eight years. Commenters argued that this
more closely corresponds with the time period for which States are
required to offer a FAPE under the IDEA. One commenter opposed any
limitation on the grounds that a State should be allowed to include a
student in an extended-year rate, regardless of how long it has taken
the student to graduate. Another commenter did not specifically address
the limitation, but opposed the requirement that four-year and
extended-year graduation rates must be reported separately, asserting
that it was not aligned with accountability provisions for alternative
schools. Another commenter recommended that the Department provide
guidance encouraging States to report extended-year graduation rates in
order to capture students that typically take longer than four years to
graduate.
Discussion: The Department initially proposed to limit extended-
year graduation rates to seven years because it is consistent with the
time period in which most States ensure the availability of FAPE and no
State currently calculates an extended year rate longer than seven
years. We acknowledge, however, that some States provide FAPE for a
longer period. In light of such differences across States, the
Department is removing the limitation on extended-year graduation
rates.
Although we are removing the limitation on extended-year rates, we
nonetheless believe that most students not graduating after four years
will graduate in five or six years. Further, students with the most
significant cognitive disabilities receiving a State-defined alternate
diploma within the time period in which most States ensure the
availability of FAPE can be included in both the four-year and
extended-year graduation rates. For these reasons, the Department
encourages States to limit extended-year rates to five or six years in
order to capture the most meaningful information about student
graduation outcomes for use in reporting and accountability systems.
With respect to the recommendation that States and LEAs not be
required to report the four-year and extended-year rates separately,
and that instead States and LEAs should be able to report only one, we
note that section 1111(h)(1)(C)(iii)(II) of the ESEA, as amended by the
ESSA, specifically requires reporting on four-year graduation rates
and, if adopted by the State, extended-year graduation rates. If a
State chooses to implement an extended-year graduation rate, such
information is most useful if reported separately from the four-year
rate so that stakeholders can see the differences in graduation rate
outcomes in the additional years beyond the four-year rate.
Consequently, the Department believes that it is important that those
rates be reported separately.
We appreciate suggestions from commenters about topics for
potential guidance on this issue. Should we determine that further
guidance is needed related to this issue, we will take these comments
into consideration.
Changes: The Department has revised Sec. 200.34(d)(2) to remove
the
[[Page 86180]]
requirement that an extended-year graduation rate cannot be for a
period longer than seven years.
Standard Criteria for Including Certain Subgroups
Comments: Many commenters responded to the Department's directed
question seeking input on whether to create standard criteria for
including children with disabilities, English learners, children who
are homeless, and children who are in foster care in their
corresponding subgroups within the adjusted cohort graduation rate
calculation. A number of commenters supported standardizing the
criteria for including students within these subgroups in the
graduation rate calculation. Commenters generally addressed only one or
two of the subgroups identified in the question, and, together, the
comments offered different recommendations for different subgroups
(e.g., different recommendations for English Learners than students in
foster care). A number of commenters submitted comments assuming the
Department was suggesting standardizing all students in the directed
question.
Some commenters focused generally on standard criteria for all four
subgroups identified in the directed question. Several of these
commenters supported basing a student's inclusion in a subgroup on
being part of that subgroup at any time during the cohort period.
Several commenters supported creating standard criteria, but suggested
either different criteria based on the specific characteristics of the
subgroup, or getting input from stakeholders, such as States and
advocates, about the appropriate criteria for each subgroup.
Several commenters opposed requiring standard criteria, specifying
that the decision should be left to States. Of these, two commenters
included recommendations for the Department to consider if it decided
to require standard criteria. One commenter recommended including
students in the subgroup if they were part of that subgroup at any time
during the cohort period. The other recommended that the Department
consider current practices of States and align the requirements to the
method used by a majority of States.
Many commenters addressed children with disabilities specifically.
The majority of commenters supporting standardization suggested
including children with disabilities if (1) they were a member of the
subgroup at graduation and (2) they had spent the majority of their
time in high school in the subgroup. The rest of the supporting
commenters suggested varied approaches for standardization (e.g., at
any time, at the time of graduation).
Some commenters addressed English learners specifically. One
commenter requested special criteria and additional disaggregation for
students who are English learners and have been part of Native American
Language Schools and Programs for at least six years. Other commenters
supported requiring standard criteria, but suggested different
approaches for determining those criteria. Commenters suggested: Basing
a student's membership in a cohort if they were part of that subgroup
at any time during the cohort period; requiring standard criteria
appropriate to the characteristics of the subgroups; and aligning the
criteria with other definitions associated with English learners (e.g.,
aligning with long term English learners or including former English
learners).
Many other commenters addressed concerns related to students who
are homeless and students who are in foster care specifically and
supported requiring standard criteria. All commenters supporting
standard criteria for these groups suggested basing a student's
membership in a cohort on whether they were part of that subgroup at
any time during the cohort period and emphasized that this is
particularly important for these groups since they may move in and out
of that subgroup multiple times while they are in school and point in
time counts would underrepresent the population. A subset of these
commenters suggested that graduation rates should be reported both for
students that were part of that subgroup at any time during the cohort
period and students who were part of that subgroup at the time of
graduation. Commenters indicated that if only one rate for these groups
was possible, their preference was for the former. One commenter
requested additional clarity regarding the assignment of students to
particular subgroups. The commenter requested clarity as to whether a
student could be assigned to multiple subgroups (e.g., the English
learner subgroup and the children with disabilities subgroup), or if a
student could only be assigned to one. If the latter, the commenter
requested information on which group would take precedence.
Discussion: We agree that requiring standard criteria for the
inclusion of specific subgroups in the graduation rate calculation will
make the data more useful. One of the key reasons for requiring an
adjusted cohort graduation rate is to ensure that all States use a
consistent graduation rate calculation, which allows data to be
compared across States. While differences in graduation rate
requirements mean that there will continue to be some limitations to
the comparability of the data, we believe that any step that improves
the comparability of the data will improve the ability of parents and
other stakeholders to use the data as intended. We note that this
standard criteria is solely for the purpose of calculating and
reporting on graduation rate data.
We disagree with the recommended approach of those commenters that
supported standardizing the criteria for how children with disabilities
are included in the cohort graduation rate calculation. The commenters
suggested including children with disabilities if (1) they were a
member of the subgroup at graduation and (2) they had spent the
majority of their time in high school in the subgroup. The Department
is unaware of any State that currently uses this approach when
including children with disabilities in the cohort. Moreover, the
Department believes that States, LEAs, and schools should be able to
count children with disabilities if such children remain in that
subgroup throughout high school or if they successfully exit from
special education services in high school, as the data represent the
long-term effort by States, LEAs, and schools to serve these students.
The Department is also concerned that following the suggested approach
could encourage States to unnecessarily retain some higher functioning
students with disabilities in special education services in order to
count these students in the disability subgroup. Additionally, we note
that, under Sec. 299.14(c)(5), each State must assure that it has
policies and procedures in place regarding the appropriate
identification of children with disabilities consistent with the child
find evaluation requirements in section 612(a)(3) and (a)(7) of the
IDEA. We feel confident that this will mitigate against the risk of
students being inappropriately identified.
In response to commenters indicating that a student should be
included in the English learners subgroup for purposes of reporting the
adjusted cohort graduation rate if he or she was part of that subgroup
at any time during the cohort period, we are revising Sec.
200.34(e)(2) to require this practice for the limited purpose of
reporting the adjusted cohort graduation rate under the ESEA. As with
students with disabilities, this approach under the ESEA recognizes the
long-term effort by States, LEAs, and schools to serve these students
even if they are not English learners at the time they graduate.
[[Page 86181]]
We agree with commenters indicating that students who are homeless
and students who are in foster care should be included in those
subgroups for purposes of reporting the adjusted cohort graduation rate
if they were part of the subgroup at any time during the cohort period.
We agree that these students will move in and out of these subgroups
depending on their current situation and that only capturing these
students at the time of graduation would risk significantly
underreporting these students.
On balance, the Department believes that the final regulations will
create more consistency in graduation rate reporting for specific
subgroups, which is an important improvement to current reporting
practices which have made it difficult to compare certain subgroups
across States. We believe that the long term benefits of increasing the
comparability across States outweigh the interruption of the
longitudinal data and the one-time effort to change business rules.
Further, it seems appropriate to use this opportunity to require this
approach for subgroups newly required for purposes of reporting
adjusted cohort graduation rates under the ESEA, as amended by the
ESSA, (i.e., students who are homeless and students in foster care) to
ensure that students in these groups are appropriately and consistently
captured in graduation rates.
We note that a number of commenters indicated that further
disaggregation of certain subgroups would provide the most useful
information for understanding student graduation outcomes. While we
understand that this information may be useful, the statute includes a
specific list of subgroups for which disaggregation is required. As
such, the Department will not require further disaggregation; however,
States and LEAs are free to add further information to their report
cards if they believe that further detail will convey useful context
for their stakeholders.
Additionally, the Department notes that a commenter requested
further clarification about subgroup inclusion. In this regard, we note
that students can be included in multiple subgroups, and we expect that
an individual student will be counted in any subgroup that applies to
that student. For example, a student with a disability who is also an
English learner would be counted in both subgroups.
Changes: We have added Sec. 200.34(e)(2), which requires a State
to include children with disabilities, English learners, children who
are homeless, and children who are in foster care in the respective
subgroup for the limited purpose of reporting the adjusted cohort
graduation rate under the ESEA, if such students were identified as a
member of the subgroup at any time during the cohort period.
Transfers to Prisons or Juvenile Facilities
Comments: A number of commenters supported the Department's
clarification related to cohort removal for students transferring to
prison or juvenile facilities, and the requirement under proposed Sec.
200.34(b)(3)(iii) that these students can be removed from the cohort
only if they participate in a program that culminates in the award of a
diploma aligned to the statutory requirements. These commenters also
suggested revisions to the requirement, including revising it to align
with the statute, which defines ``transferred out'' as having
transferred to an educational program ``from which the student is
expected to receive'' a regular high school diploma or State-defined
alternate diploma, as opposed to the proposed regulation, which focused
on a student's transfer to a program ``that culminates in the award
of'' a regular or State-defined alternate high school diploma. Many
commenters also requested that the Department clarify that a student
can be removed from the cohort only if he or she has been adjudicated
as delinquent, and one commenter further suggested that the student
must also be enrolled in an educational program in a prison or juvenile
facility for at least one year.
Many commenters suggested further clarifying the requirement in a
number of other ways, including by specifying that, to be removed from
a sending school's cohort, a student must be ``meaningfully
participating'' in an education program while in a prison or juvenile
facility, that documentation of the transfer must include written
confirmation of the student's enrollment in an educational program from
which he or she can expect to receive a regular high school diploma,
and that the provisions related to partial enrollment also apply to
students in prison or juvenile facilities. A few commenters recommended
adding a requirement to disaggregate graduation rate data for students
who are in the juvenile justice system.
Two commenters opposed the proposed requirement, indicating that
States may have trouble complying because they may lack authority over
juvenile facilities and students in those facilities. One commenter
noted that it would not be possible to produce consistent data across
States.
Several commenters requested further guidance from the Department
about responsibilities for educating students in juvenile facilities.
Most of these commenters requested that the Department address the
timing for transferring a student from the sending school, the process
for transferring a student from a prison or juvenile facility back into
a school, and requirements for oversight and accountability of schools
in these facilities. One commenter requested further clarification on
which LEA is responsible for a student that enters a prison or juvenile
facility that does not award the applicable diploma types.
Discussion: We appreciate the comments noting that certain proposed
regulatory language differed from the statutory language, and agree
that it is more appropriate to use the statutory language. We also
agree with commenters who suggested that a student must be adjudicated
as delinquent, and that it must be clear that the student will be
enrolled in a program from which he or she can expect to receive a
regular high school diploma or State-defined alternate diploma, before
the student can be removed from the sending school's cohort. Students
who are awaiting hearings and who have not yet been adjudicated as
delinquent may end up in a different facility, may transfer to another
school, or may be released and return to their sending school. As such,
the result of the adjudication and the student's placement should be
clear before the student is removed from the cohort.
We also agree that a student should not be removed from a cohort
unless the student will be in a facility long enough that he or she can
expect to receive a regular high school diploma or, if applicable, a
State-defined alternate diploma for students with the most significant
cognitive disabilities from the facility. While the Department does not
agree with comments suggesting that a student must remain in the
facility for at least a year before being removed the sending school's
cohort, the Department does believe that it is reasonable to clarify
that a student should be in a facility long enough to receive a diploma
from that facility. Otherwise, the student should remain in the cohort
of the sending school, since the student would be expected to transfer
back to the sending school before the time of his or her graduation.
Further, upon a student's release from a prison or juvenile facility,
it is critical for the LEA or school that the student previously
attended to re-engage with the student to ensure a positive and
supportive
[[Page 86182]]
transition that provides a pathway to a regular or State-approved
alternative high school diploma. The Department encourages LEAs and
schools to maintain an open line of communication with prisons and
juvenile facilities to help ensure that students who are assigned to,
and ultimately released from, such facilities receive an appropriate
education and do not disappear from a graduation cohort.
The Department appreciates the suggestion that a student must
``meaningfully participate'' in an education program in a prison or
juvenile facility, but, given the inherent challenge in defining that
term, we decline to add it to the regulation. We do, however, encourage
States to implement procedures to ensure that educational programs in
prisons and juvenile facilities are of high quality.
The Department does not believe that it is necessary to revise the
language on partial enrollment to clarify that the requirements related
to reporting on students partially enrolled also apply to students in
juvenile facilities. The Department believes that the language as
written will apply to those facilities, and that adding specific
language to that section will not clarify the requirement, but will
instead create confusion.
The Department notes that some commenters have indicated that
disaggregating data for students in juvenile justice facilities will
provide useful information for understanding their graduation outcomes.
While we understand that this information may be useful, we decline to
expand the statutory list of subgroups for which disaggregation is
required. We note, however, that States are free to add to their report
cards information that they believe will be useful for their
stakeholders.
We appreciate suggestions from commenters about topics for
potential guidance on this issue. Should we determine that further
guidance is needed related to this issue, we will take these comments
into consideration.
Changes: We have revised Sec. 200.34(b)(3)(iii) to align with
statutory language by replacing the phrase ``culminates in the award
of'' with the phrase ``expected to receive'' a diploma. The Department
has further revised Sec. 200.34(b)(3)(iii) to clarify that, in order
for students that transfer to a prison or juvenile facility to be
removed from a cohort, there must first be an adjudication of
delinquency and the student must be expected to receive a regular high
school diploma or State-defined alternate diploma during the period in
which the student is assigned to the prison or juvenile facility.
Cross Reference to the Assessment Regulation
Comments: None.
Discussion: In defining ``alternate diploma'' under proposed Sec.
200.34(c), the Department cross-referenced a proposed requirement in
Sec. 200.6(d)(1) related to assessment requirements under title I,
part A, of the ESEA, as amended by the ESSA, that was subject to
negotiated rulemaking under the ESSA and on which the negotiated
rulemaking committee reached consensus. This proposed requirement,
included in a notice of proposed rulemaking published in the Federal
Register on July 11, 2016, would require a State to adopt guidelines
for IEP teams to use when determining which students with the most
significant cognitive disabilities should take an alternate assessment
aligned with alternate academic achievement standards, including a
State definition of students with the most significant cognitive
disabilities. These proposed requirements have not been finalized and,
as a result, the Department is removing this language from the final
regulations.
Changes: We have revised Sec. 200.34(c)(3)to remove references to
proposed Sec. 200.6(d)(1).
Section 200.35 Per-Pupil Expenditures
Student Count Procedure
Comments: One commenter supported the use of an October 1
membership count as the uniform denominator used in per-pupil
expenditure calculations. Several commenters, however, noted that many
States define student counts for State-determined school finance
formulas using a date other than October 1 and, as a result, States
could be required to collect additional enrollment count data to comply
with the requirements in proposed Sec. 200.35(c)(2). Several
commenters recommended that we revise the requirement to provide States
greater flexibility, by, for example, requiring States to specify a
uniform statewide definition of student count, requiring a State and
its LEAs to use the same student count for per-pupil expenditures as is
used for State funding allocations, or allowing States to select either
the October 1 count or the student count the State uses for State
funding allocations.
Discussion: We acknowledge that States use various methods to
measure student enrollment for use in State-determined school finance
formulas. However, all States annually report to NCES, by LEA and
school for every grade that is offered, a uniform membership count
(i.e., enrollment) of all students to whom each LEA provides a free
public education on or about October 1. This measure is a count of the
number of students for whom the reporting LEA is financially
responsible and is collected annually by NCES through Common Core of
Data (CCD) collection. This information is then used to calculate per-
pupil expenditures by LEA and State, as reported by NCES through the
National Public Education Financial, LEA Finance (F-33) surveys, and by
school, as reported to NCES through the pilot School-Level Finance
survey. We recognize that SEAs also report average daily attendance
(ADA) data to NCES to determine the average State Per Pupil Expenditure
(SPPE) for elementary and secondary education. But because ADA data is
not comparable across States, we elect to follow the NCES convention of
using membership data to calculate and report expenditures per pupil
for public reporting purposes. Further, by establishing minimum
requirements that align with existing data collections we are limiting
the burden on States and LEAs for complying with this new statutory
requirement.
Therefore, to encourage consistent, fair, and aligned reporting
practices across States and LEAs, we decline to change the manner in
which the number of students is determined for purposes of calculating
per-pupil expenditures. We are, however, modifying the regulation to
clarify that the NCES CCD enrollment count data that is used to
calculate per-pupil expenditures for annual report card purposes must
reflect enrollment data from ``on or about'' October 1.
Changes: We have revised Sec. 200.35(c)(2) to clarify that the
denominator used for purposes of calculating per-pupil expenditures
must use the student count data from ``on or about'' October 1,
consistent with the figure reported to NCES.
Comments: Several commenters asked if the per-pupil expenditure
denominator should include preschool students and if preschool students
are included in the membership count collected by NCES.
Discussion: The CCD collection includes an annual count of
students, which includes students in the group or classes that are part
of a public school program that is taught in the year or years
preceding kindergarten. Therefore, the expenditure denominator should
include preschool students.
Changes: We have revised Sec. 200.35(c)(2) to clarify that the
denominator used for purposes of calculating per-pupil expenditures
must
[[Page 86183]]
include preschool enrollment, consistent with the universe portion of
the school CCD collection student membership definition.
Account Code Definitions
Comments: Many commenters requested that the Department specify
account code definitions to enable States to calculate per-pupil
expenditures. For example, one commenter supported the proposed rule
because it would ensure all schools have fair and equitable access to
funds and would broaden public knowledge of resource disparities, but
requested that the Department require States and LEAs to implement a
uniform chart of accounts that identifies additional categories of
expenditures to increase transparency. A number of other commenters
stated that proposed Sec. 200.35 is ambiguous about the definition of
private funds. One commenter proposed a different set of expenditure
categories to include on report cards than those in the proposed
regulations.
Discussion: We agree with commenters that definitions should be
clear for all entities calculating and reporting per-pupil
expenditures. We also believe, where feasible, calculations should be
uniform across States and consistent with existing data collections, so
that the public can easily compare and contrast school system spending
patterns. To this end, the final regulations clearly specify the
composition of the numerator and denominator for the calculation,
including the types of expenditures that must be included.
Additionally, to the extent possible, Sec. 200.35 aligns current
expenditure reporting requirements with existing NCES collection
procedures.
However, we do not specify or require the use of particular account
codes because we believe that States should have flexibility to develop
and implement the uniform statewide procedures for calculating and
reporting per-pupil expenditures that work best for the unique
configurations and capacities of their LEAs and schools. Nevertheless,
we encourage States to adopt statewide account code definitions aligned
with those found in the NCES Financial Accounting for Local and State
School Systems handbook (NCES handbook, available at: http://nces.ed.gov/pubs2015/2015347.pdf), in recognition of the fact that
States already use these definitions for existing NCES data collections
and their adoption for the purpose of calculating per-pupil
expenditures thus would minimum the administrative burden of meeting
the new reporting requirements.
Changes: None.
Classification of Expenditures
Comments: Many commenters requested clarification as to whether
local funds should include local revenue from rent/royalties and fees
collected and expressed concern that the proposed regulation does not
account for other Federal funds that are similar to Impact Aid. Another
commenter requested guidance on how to report final Impact Aid payments
made during the preceding fiscal year.
Discussion: We generally believe that States have both the
discretion and the responsibility to clarify the composition of local
revenues as well as other revenue classifications as part of developing
their statewide procedures for calculating LEA- and school-level
expenditures per pupil. As noted previously, we encourage States to
adopt NCES handbook account code definitions, but decline to prescribe
additional requirements in these final regulations. However, we do
believe that funding from other Federal programs designed offset losses
in local tax revenues should be counted as State and local funds, and
we are revising the final regulations accordingly. The Department will
consider providing additional information on these types of Federal
programs, along with suggestions on how to report final Impact Aid
payments made during the preceding fiscal year, in non-regulatory
guidance.
Changes: We have revised Sec. 200.35(a) and (b) to clarify that
State and LEA report cards must, when reporting per-pupil expenditures,
include with State and local funds all Federal funds intended to
replace local tax revenues.
Implementation Concerns
Comments: Several commenters expressed concern that States and LEAs
lack sufficiently detailed data or accounting systems to collect and
report school-level expenditures, making the proposed requirements
costly, impractical, burdensome, and likely to yield little useful
information. One commenter stated that the regulations would force LEAs
to invest significant resources to report school-level expenditures
that ultimately will not provide a meaningful measure of expenditure
reporting.
Discussion: We disagree with the concerns that school-level
reporting of expenditures may not provide valuable insight to local
administrators and agree with other commenters who have asserted that
these data will be an important source of information for
administrators, parents, and local stakeholders.
Changes: None.
Comments: One commenter suggested the Department require only
personnel costs to be reported at the school level because of the
difficulty of reporting other types of expenditures that are shared by
schools within an LEA. Many commenters stated specifically that
centrally managed support services, such as food service or
transportation, are not easily disaggregated or reported at the school
level. Two commenters suggested that the Department adopt more detailed
requirements for expenditure reporting at the school and LEA levels.
Many commenters requested further clarification of the
requirements, including, for example, specifying a uniform standard
procedure for allocating expenditures at the school level or even
requiring LEAs to assign all expenditures to the school level.
One commenter stated that the ESEA, as amended by the ESSA, allows
central office expenditures to be excluded from school-level reporting
and that assigning expenditures to individual schools would be
complicated by different LEA accounting methodologies, resulting in
data quality issues.
One commenter suggested the Department add requirements that LEAs
report the comparison between LEA average expenditures and individual
schools and the percentage of LEA expenditures on administration and
shared services. One commenter expressed concern over the reporting
procedures for State payments to private preschool providers. One
commenter recommended that the Department not specify an order of
operation for calculating per-pupil expenditures, stating that some
States are capable of calculating school-level expenditures without LEA
reports.
Discussion: We appreciate the varied suggestions offered by
commenters, which collectively demonstrate both the importance and
difficulty of producing uniform and clear per-pupil expenditure data at
the school and LEA levels. We also acknowledge the decision to report
certain types of expenditures only at the LEA level requires serious
deliberation that considers the merits of alternative reporting
approaches. However, we also believe such decisions are best made by
States, with input from local stakeholders. For this reason Sec.
200.35 requires States to develop and clearly describe the statewide
uniform procedures that delineate which expenditures are reported at
the school and LEA levels, including how school-
[[Page 86184]]
level expenditures are reported as they relate to LEA expenditures.
Based on the comments received, it also appears some commenters may
have misinterpreted the proposed regulations. Although States will
determine which expenditures are reported at the school level, under
proposed Sec. 200.35 it is up to States to determine if expenditures
such as superintendent salaries or food service costs are excluded from
school-level reporting and only reported at the LEA level.
In addition, we believe that the establishment of national uniform
school-level reporting procedures could stifle innovative approaches to
reporting per-pupil expenditures and would fail to take into account
local considerations and State laws. Because the statewide approaches
will be uniformly applied within a State, implementation of proposed
Sec. 200.35 preserves the ability of within and cross-LEA comparisons
of per-pupil expenditures.
Changes: None.
Comment: One commenter asked the Department to clarify the meaning
of expenditures not allocated to public schools and whether school-
level expenditures in aggregate equal total LEA expenditures.
Discussion: We believe it is necessary to clarify how current
expenditures not reported at the school level are reported and are
revising the final regulations accordingly.
Changes: We have revised Sec. 200.35(a)(2) and (b)(2) to clarify
that State and LEA report cards must report the total current
expenditures that were not reported in school-level per-pupil
expenditure figures.
Comment: One commenter stated that reporting school-level
expenditures would cause the increased use of pull-out models of
instruction for students.
Discussion: We disagree with the concerns that school-level
reporting of expenditures could cause increased use of pull-out models
of instruction for students and are unaware of research demonstrating a
link between school-level expenditure reporting and commensurate shifts
in the use of pull-out instruction for students.
Changes: None.
Reporting Exemptions
Comments: Several commenters requested an exemption for small and
rural LEAs from the per-pupil expenditure reporting requirement,
suggesting such an exemption would be consistent with similar
exemptions under other title I provisions.
Discussion: While the ESEA, as amended by the ESSA, includes
special provisions for rural and small LEAs in a number of areas, there
is no such provision related to the reporting requirement for per-pupil
expenditures under section 1111(h)(C)(x). Moreover, advocates for rural
and small LEAs have long expressed concerns about funding equity and
other resource challenges faced by such LEAs, and reporting on per-
pupil expenditures will support greater transparency and analysis
around such concerns. Identifying resource disparities among LEAs of
all types is a key goal of the new per-pupil expenditures reporting
requirement, and we do not believe excluding the one-third to one-half
of all LEAs that are small and/or rural from the new requirement would
be consistent with this goal.
Changes: None.
Comments: A number of commenters addressed the inclusion of
expenditures from private sources in per-pupil expenditure reporting,
with some commenters requesting clarification on the exclusion of
private funds, others recommending that the final regulations require
that they be included, and one commenter asking the Department to
encourage States and LEAs to include them voluntarily.
Discussion: Under section 1111(h)(1)(C)(x) of the ESEA, as amended
by the ESSA, States and LEAs must report per-pupil expenditures of
Federal, State, and local funds. Funds from private sources do not fall
within any of these three categories, which encompass only public
funds. Therefore, Sec. 200.35 requires the exclusion of private funds
from per-pupil expenditure reporting. We nonetheless encourage States
and LEAs to consider improving transparency around education finances
by including the reporting on the use of private funds for public
educational purposes.
Changes: None.
Disaggregating Per-Pupil Expenditure Data
Comments: Some commenters supported the requirement in proposed
Sec. 200.35(a)(1)(i)(B) and (b)(1)(i)(B) that per-pupil expenditures
must be disaggregated by (1) Federal and (2) State/local funds. One
commenter claimed, however, that the ESEA, as amended by the ESSA,
requires that per-pupil expenditures be disaggregated separately for
Federal, State, and local funds and requested that proposed Sec.
200.35 be revised to also require disaggregation of State and local
funds. Another commenter recommended further disaggregating per-pupil
expenditures by grade level.
Discussion: We appreciate the commenters support for the method of
disaggregating Federal, State, and local funds in Sec.
200.35(a)(1)(i)(B) and (b)(1)(i)(B). The Department disagrees with the
commenter claiming the ESEA, as amended by the ESSA, requires that
Federal, State, and local funds be separately disaggregated. Although
the section 1111(h)(1)(C)(x) of the ESEA, as amended by the ESSA,
requires that per-pupil expenditures be disaggregated by source of
funds, it does not specify the level at which such disaggregation must
occur. Thus, Sec. 200.35(a)(1)(i) and (b)(1)(i) clarify that a State
and its LEAs are required to report per-pupil expenditures in total
(i.e., including all Federal, State, and local funds) and disaggregated
by (1) Federal funds, and (2) State and local funds. Because typical
LEA accounting procedures do not require State and local funds to be
separately tracked, implementation of the commenter's proposal would be
impractical, complicated, and would likely result in the dissemination
of inaccurate fiscal data to the public. Further, States with more
sophisticated accounting systems that are able to disaggregate per-
pupil expenditure reporting by Federal, State, and local funds are not
precluded from including such data on their report cards. Similarly,
States are welcome to include disaggregated per-pupil expenditure data
by grade level on annual State and LEA report cards, but it is not
required under the ESEA, as amended by the ESSA.
Changes: None.
Uniform Statewide Procedure
Comments: Many commenters supported the regulations proposed Sec.
200.35, arguing that the regulations will increase transparency in a
manner that will allow the public to identify and address financial
inequities within a State. Several commenters strongly supported the
requirement in proposed Sec. 200.35(c) that States develop a single
statewide procedure for LEA and State use, arguing implementation of
these regulations will allow the public to hold States, LEAs, and
school leaders accountable for ensuring that schools and LEAs serving
traditionally underserved populations are provided the resources they
need to succeed academically. Commenters also stated the uniform
procedure requirement will allow for consistent presentation of
financial data that can be used to evaluate how investments impact
student outcomes, which will result in more informed budgetary
decisions by local policymakers. Several commenters recommended
removing the uniform
[[Page 86185]]
statewide procedure requirement to allow States and LEAs to calculate
per-pupil expenditures in the manner they determine appropriate.
Discussion: The Department appreciates the support of commenters,
including the specific support for the uniform procedures requirement
in Sec. 200.35(c). The Department disagrees with the commenter
regarding the removal of this provision. We agree the commenters in
support of this requirement that absent standard definitions and a
statewide procedure for calculating expenditures, per-pupil expenditure
data would not be comparable and would not support meaningful analysis
of resource inequities between and within LEAs and schools across a
State.
Changes: None.
Alignment With Existing Data Collection Requirements
Comments: Several commenters suggested the development of a
statewide school finance reporting system that is able to comply with
proposed Sec. 200.35 requirements would be onerous and recommended
that States report in a uniform manner as determined by the State. One
commenter asked if the Department will align with NCES's fiscal
collection requirements and whether NCES will cease publishing fiscal
collection results once per-pupil expenditures are disseminated through
annual State and LEA report cards. One commenter argued a universal
per-pupil expenditure reporting requirement is incongruous with the
recent increase of the single-audit expenditure threshold for non-
Federal entities from $500,000 to $750,000.
Discussion: In clarifying the per-pupil expenditure reporting
requirements under the ESEA, as amended by the ESSA, the Department
sought to align these requirements, to the extent practicable, with the
requirements of the NCES National Public Education Financial Survey,
the LEA Finance survey (F-33), and the School-Level Finance pilot
survey. We believe this approach will allow for more efficient
administration of new collection and reporting processes. We note,
however, that the new ESEA reporting requirements will not replace NCES
reporting of national expenditure survey data, which will continue to
be of use to education researchers, policymakers, and the public
because they allow for precise comparisons of LEA and SEA spending
patterns over time. Further, existing NCES collections are not as
timely as State and LEA report cards and do not report on school-level
expenditures.
Regarding the comment referencing the Uniform Administrative
Requirements, Cost Principals, and Audit Requirements in part 200 of
title 2 of the Code of Federal Regulations, the Department disagrees
with claims that single audit requirements are misaligned with per-
pupil expenditure requirements, as these separate requirements are in
place for different purposes under different regulations. The
administration of a single audit ensures that Federal funds are
expended properly, while universal per-pupil reporting requirements
ensure the public has access to comparable fiscal data.
Changes: None.
Data Interpretation
Comments: Two commenters questioned the value of reporting per-
pupil expenditures, arguing such reporting can be misleading depending
on local factors such as cost-of living.
Discussion: Under section 1111(h)(1)(C)(x) of the ESEA, as amended
by the ESSA, States and LEAs must report per-pupil expenditures of
Federal, State, and local funds. The Department agrees that the per-
pupil expenditure data collected and reported under Sec. 200.35 must
be presented and analyzed with care, taking into account within-State
variations based on multiple factors, including differences in the cost
of education. However, we anticipate that States will include such
context, where appropriate, in their presentation of per-pupil
expenditure data on State and local report cards. For example, a State
could choose to also provide cost-of-living adjusted data on its report
card if it determined this would be valuable for accurate cross-
district comparisons.
Changes: None.
General Opposition
Comments: A numbered of commenters expressed opposition to proposed
Sec. 200.35, variously claiming that its provisions are not required
or are inconsistent with the requirements of the ESEA, as amended by
the ESSA; that the proposed regulations exceed the Department's
authority; that requiring uniform procedures for calculating per-pupil
expenditures could limit SEA and LEA flexibility to meet local needs;
that reporting per-pupil expenditures could lead to pressure to
equalize education funding, including for charter schools; and that it
is not clear how such reporting will affect compliance with the title
I, part A supplement not supplant or comparability requirements. In
response to such concerns, commenters generally recommended either
striking the provisions of the proposed regulations that are not
explicitly required under the ESEA, as amended by the ESSA; making such
provisions permissive; or replacing most of proposed Sec. 200.35 with
non-regulatory guidance.
Discussion: Section 200.35 clarifies reporting requirements
established by section 1111(h)(1)(C)(x) of the ESEA, as amended by the
ESSA, so that local policymakers, parents, and the public can easily
understand how public education funds are distributed across LEAs and
schools. The regulations establish minimum requirements to ensure
timely access to comparable spending data, but do not mandate equal
per-pupil funding at the LEA or school level, prescribe how such data
should be used in implementing supplement not supplant or comparability
requirements, or require reporting of additional information to the
Department beyond that required by statute. Further, as discussed
previously under Cross-Cutting Issues, the Department has rulemaking
authority under section 410 of GEPA, section 414 of the DEOA, and the
section 1601(a) of the ESEA, as amended by the ESSA. Given that
rulemaking authority and that the regulations fall squarely within the
scope of title I, part A of the statute, consistent with section
1111(e), it is not necessary for the statute to specifically authorize
the Secretary to issue a particular regulatory provision.
Changes: None.
Section 200.36 Postsecondary Enrollment
Definition of Programs of Postsecondary Education
Comments: Two commenters supported the proposal in Sec.
200.36(a)(2) to define ``programs of postsecondary education'' in the
same manner as ``institution of higher education'' as that term is
defined under the Higher Education Act of 1965, as amended (HEA). One
commenter expressed concern about the definition, indicating that it
was unclear how it would accommodate programs specific to children with
disabilities that grant certificates instead of degrees. One commenter
disagreed with the rationale for using the HEA definition (to promote
consistency in data reporting and allow users to compare across
States), indicating that the use of this definition would not create
comparability across States due to different sizes and structures of
postsecondary systems across States.
[[Page 86186]]
Discussion: We agree with the comments supporting the proposal to
define the term ``programs of postsecondary education'' to align with
the definition of ``institution of higher education'' used in the HEA.
We believe that it is important that States report on enrollment in
accredited two- and four-year institutions, as specified in the
existing HEA definition. With respect to the concerns raised about
comparability across States, we acknowledge that this definition does
present limitations for cross-State comparisons due to the differences
in postsecondary structures across States. Nonetheless, we believe that
requiring the use of the HEA definition will promote consistency in
data reporting, since all States will be including postsecondary
institutions based on the same parameters.
We do not agree that the definition should accommodate students
with disabilities who receive certificates of completion. This metric
is intended to capture postsecondary enrollment of students earning
diploma types consistent with the graduation rate requirements in Sec.
200.34. States are able to include additional metrics of postsecondary
actions if they wish to provide more robust information to parents and
other stakeholders.
Changes: None.
Postsecondary Indicators
Comments: Some commenters requested adding further indicators
related to postsecondary activities to the regulations. Some commenters
noted that the postsecondary indicators were solely focused on entry
into education programs and suggested that they be expanded to include
other postsecondary actions such as community-based roles, the
military, job training programs, or service organizations. Two
commenters recommended including language indicating that postsecondary
enrollment includes additional metrics, such as the number of courses
taken without the need for remediation and postsecondary completion.
One commenter requested disaggregation of postsecondary enrollment data
by students receiving a regular high school diploma and students
receiving an alternate diploma; and another commenter requested
disaggregation by two- and four-year institutions. This commenter also
requested that the Department require additional information on numbers
of students receiving scholarships or grants.
Discussion: We appreciate commenters who indicated that there are
important postsecondary metrics, including metrics beyond enrollment in
programs of postsecondary education, that provide a more comprehensive
picture of student actions after high school. We agree that there are
many important postsecondary indicators that would provide parents and
other stakeholders with useful information.
However, the Department is cognizant of the many reporting
requirements already included in the State report card, as well as the
particular challenge involved in linking secondary and postsecondary
information. As such, the Department declines to impose additional
burden on States by requiring additional postsecondary measures on
State and LEA report cards. We note, however, that at its discretion a
State may choose to include additional information on report cards.
Changes: None.
Providing Information ``Where Available''
Comments: Several commenters expressed support for the language in
Sec. 200.36(c) clarifying that postsecondary enrollment data is
``available'' and therefore must be reported under proposed Sec.
200.36(a) if a State is obtaining it or if it is obtainable, and that
States that cannot meet the reporting requirement must include on
report cards the year in which they expect complete data to be
available. Of these, one commenter specifically expressed support for
part of the Department's rationale, which stated that at least 47
States can currently produce high school feedback reports, and
encouraged the Department to consider guidance on making data as
transparent and accessible as possible. Two commenters expressed
concern with the requirement, indicating that there would be an ongoing
cost associated with meeting the requirement. One commenter
additionally detailed the current challenges and burden of obtaining
data from postsecondary institutions due to privacy legislation,
necessity to work with multiple entities, data quality issues, and the
challenge in capturing students in private and out-of-State
institutions. One commenter suggested that the Department should
consider a funding mechanism that would enable the use of National
Student Clearinghouse data for all States.
Discussion: We appreciate comments supporting the requirement to
clarify the meaning of ``available.'' As noted by one commenter, many
States already have the capacity to report on at least some
postsecondary enrollment data, indicating that most States should be
able to meet the requirement to track some, if not all, students in a
graduating class. This requirement is intended to ensure that as many
States as possible make postsecondary enrollment information available
so that parents and stakeholders have access to information about how
successfully each public high school is in graduating students who go
on to enroll in postsecondary programs. Additionally, reporting
publicly on when data will be available if they are not already
available will encourage States not currently able to meet the
requirements to obtain and make available this information.
We recognize that linking secondary and postsecondary data systems
is challenging and requires an investment in new system infrastructure
and processes. States are free to obtain the data from any source
available to them, and States currently linking their systems approach
this in a number of ways. Some States use the National Student
Clearinghouse, which houses the most comprehensive information on
postsecondary actions, but also requires an ongoing investment. States
are not required to use this source, and some States are developing
other innovative ways of obtaining data, including data sharing
agreements or memoranda of understanding with other agencies. States
engaging in data sharing agreements may contribute data to centralized
repositories (centralized model), or store data separately and link
data on demand (federated model). Acknowledging the added challenge of
obtaining data on private or out-of-State institutions, Congress
specifically differentiated requirements for those institution types
compared to public, in-State institutions by adding ``to the extent
practicable'' to the statutory requirements. The Department understands
that new data elements, particularly those that involve the complexity
of navigating multiple systems, will have data quality challenges;
however, we believe that States need to continue to proactively develop
the necessary processes to report these metrics in order for critical
information on postsecondary actions to improve. States should clearly
document limitations in their reported data to ensure that it is
interpreted appropriately.
The Department also understands that data-sharing agreements can
create privacy concerns and encourages States to use the Department's
Privacy Technical Assistance Center, which provides resources on best
practices for ensuring the confidentiality and security of personally
identifiable information.
Changes: None.
[[Page 86187]]
Other
Comments: One commenter indicated that students should only be
counted in the numerator as enrolling in a program of postsecondary
education if they have enrolled in credit-bearing coursework without
the need for remediation.
Discussion: We appreciate the desire to ensure that the
postsecondary enrollment metric is a meaningful measure of college-
readiness. However, the Department also believes that adding further
parameters to the requirement creates added burden and many States are
still in the early stages of linking their data systems. As such, the
Department does not agree that additional parameters should be added to
the metric.
Changes: None.
Comments: Two commenters recommended specific topics for guidance.
One commenter suggested guidance on building internal capacity within
States to establish linkages between K-12 and postsecondary data
systems. The commenter further suggested guidance regarding the
establishment of governance structure to advise on the management of
these systems. One commenter requested guidance about how to treat
students who take a gap between their graduation and their enrollment
in a postsecondary institution into the postsecondary enrollment
calculation.
Discussion: We appreciate suggestions from commenters about topics
for potential guidance on these issues. Should we determine that
further guidance is needed related to these issues, we will take these
comments into consideration.
Changes: None.
Comments: Some commenters expressed concern about the burden
associated with the regulations. One commenter indicated general
concerns with the burden of new reporting requirements, and noted that
postsecondary enrollment data was an example of a new burdensome
requirement. They suggested that the final regulations should clarify
statutory requirements rather than create new requirements in order to
maintain State flexibility to meet statutory requirements. One
commenter specifically noted concerns regarding the burden associated
with the requirement to disaggregate by subgroup.
Discussion: The statute adds the requirement to collect
postsecondary enrollment data and to disaggregate data by subgroup.
While commenters are correct that postsecondary enrollment is newly
added to statutory reporting requirements, many States have been
reporting on postsecondary enrollment under ESEA flexibility. As such,
this is a continued requirement for most States, not a new requirement.
The Department believes that the regulations clarify statutory
requirements by ensuring consistency and maximizing the utility of data
reported, but still allowing States the flexibility to determine how to
meet the reporting requirement (e.g., the source to use for
postsecondary information).
Changes: None.
Section 200.37 Educator Qualifications
Definitions
Comments: Several commenters expressed concerns and some offered
suggestions regarding the uniform definitions and requirements in Sec.
200.37. Specifically, several commenters requested that the regulations
include additional text to the effect that a State's definitions under
proposed Sec. 200.37(b)(1) and (2), as applied to charter schools,
must defer to State charter school law. Some commenters requested that
the Department require that State and LEA report cards use specific
definitions for the term ``inexperienced,'' and the phrase ``not
teaching in the subject or field for which the teacher is certified or
licensed,'' rather than allowing States to adopt their own statewide
definition for use on State and LEA report cards. In addition, some
commenters expressed concern with the definition of high- and low-
poverty schools in Sec. 200.37, with a few commenters elaborating that
these definitions are arbitrary. One of these commenters requested that
the Department allow States to define what constitutes a high- and low-
poverty school; one commenter suggested defining high- and low-poverty
schools based on the percentage of economically disadvantaged students
in a school; and one commenter suggested that the definition of high-
and low-poverty school reflect title I eligible schools or schools with
a specific threshold of students with free and reduced lunch that would
warrant title I eligibility.
One commenter indicated that the requirements for educator
qualification definitions in Sec. Sec. 200.37 and 299.18(c)(2) extend
beyond that which the statute requires, and, in addition, the different
reporting timelines in these sections would be problematic. Another
commenter suggested that the timeline for implementing the ESEA, as
amended by the ESSA, is overly aggressive and does not provide States
with sufficient time to make necessary changes to State law regarding
educator qualification definitions. This same commenter further
contended that the statute prohibits the Department from mandating that
States define certain terms as required in Sec. Sec. 200.37 and
299.18(c)(2). In a related sentiment, one commenter requested that the
Department add text to Sec. 200.37(b) to indicate that States can use
definitions for the terms ``inexperienced'' and ``not teaching in the
subject or field for which the teacher is certified or licensed'' that
may already exist in State law. Another commenter asserted that the
requirement in Sec. 299.18(c)(2)(ii) and (iii) that States use the
same definitions of ``out-of-field teacher'' and ``inexperienced
teacher'' as States adopt under proposed Sec. 200.37(b) will
necessitate a change in LEA hiring practices and will preclude them
from hiring novice teachers and novice teachers from teaching in a
school of their choice.
Discussion: We appreciate suggestions related to the uniform
definitions and requirements in Sec. 200.37(b). However, we decline to
either add additional requirements related to the definitions of
``inexperienced'' and the phrase ``not teaching in the subject or field
for which the teacher is certified or licensed'' as applied to charter
schools or to include specific definitions of these terms. Further, we
decline to remove or otherwise revise the requirements for these
definitions in Sec. 200.37(b).
We believe that standardized statewide definitions of
``inexperienced'' and ``not teaching in the subject or field for which
the teacher is certified or licensed,'' adopted by each State and used
consistently in reporting teacher qualification data on State and LEA
report cards, will ensure transparency and increase understanding of
staffing needs in high-poverty and difficult-to-staff schools.
Furthermore, we believe that uncovering such needs may encourage States
to target efforts to recruit, support, and retain excellent educators
in these schools. However, given variation in State laws and contexts,
we believe States are best positioned to select the required statewide
definitions of ``inexperienced'' and ``not teaching in the subject or
field for which the teacher is certified or licensed'' and therefore
decline to require use of a particular definition as require under
Sec. 200.37.
With respect to defining what constitutes a high- and low-poverty
school, we disagree that the definitions are arbitrary as they are
consistent with the definitions of these terms under the ESEA, as
amended by NCLB. This ensures that States can continue to use
[[Page 86188]]
the same definition of these schools that they have used since they
began reporting teacher qualification data disaggregated by high- and
low-poverty schools. At the State and LEA levels, parents and other
stakeholders will be familiar with disaggregated teacher qualification
data based on these definitions and better able to consider
implications of the information. In light of the benefits of statewide
definitions of teacher qualification definitions, the Department
believes the requirements in Sec. 200.37(b) align with section
1111(h)(1)(B) and 1111(h)(2)(B) of the ESEA, as amended by the ESSA, to
develop State and LEA report cards in an understandable and uniform
format.
With respect to commenters asserting that the Department does not
have the authority to require definitions of certain teacher
qualification terms required under Sec. Sec. 200.37(b) and
299.18(c)(2) and that the ESEA, as amended by the ESSA, prohibits
requirements for such definitions, please see discussion below in Sec.
299.18 in response to other similar comments on this topic. With
respect to commenters' concerns that the existing State laws regarding
definitions of ``inexperienced'' and ``not teaching in the subject or
field for which the teacher is certified or licensed'' would need to be
revised, as long as current definitions for these terms meet the
requirements under Sec. Sec. 200.37(b) and 299.18(c)(2), States can,
in fact, use them to meet the requirements in Sec. Sec. 200.37(b) and
299.18(c)(2). As to the impact of the required definitions of these
terms being the same in Sec. Sec. 200.37(b) and 299.18(c)(2), LEAs
need not necessarily revise their hiring policies, and could instead
implement other strategies, such as modifying teacher recruitment and
retention policies and procedures. Nevertheless, regardless of the
strategies that an LEA elects to implement, it must report and, as
necessary, address any differences in rates.
Finally, regarding the timelines for reporting the information
required in Sec. 200.37 not being sufficient for States to meet the
requirements, States have been reporting on teachers teaching with
emergency or provisional credentials as required under the ESEA, as
amended by NCLB. With respect to the teacher qualification reporting
requirements new under the ESEA, as amended by the ESSA, as noted
previously, States and LEAs can request a one-year, one-time extension
of such new requirements. Further, States and LEAs can choose to align
the reporting timelines for information reported under Sec.
299.18(c)(2) with the December 31 deadline for State and LEA report
cards.
Changes: None.
Other Comments Related to Sec. 200.37
Comments: Some commenters supported the requirements in Sec.
200.37 generally, while others requested additional regulatory text or
opposed various provisions. Specifically, a few commenters suggested
requiring additional disaggregation of educator qualification data,
including by schools with high concentrations of students of color,
English learners, and students with disabilities or grade level. One
commenter requested that the Department provide guidance to clarify
that the categories of teachers reported under proposed Sec. 200.37
are not mutually exclusive. One commenter requested that Sec. 200.37
specifically include as inexperienced teachers those teachers of Native
students who do not have experience with Native culture and language.
Finally, one commenter expressed concern regarding the elimination of
the highly-qualified teacher requirements under the ESEA, as amended by
NCLB, and questioned how that interacts with teacher qualification
reporting requirements.
Discussion: The Department appreciates support for the requirements
in Sec. 200.37. While States and LEAs can calculate and report on
teacher qualification data disaggregated by categories in addition to
high- and low-poverty schools, the Department declines to require
additional disaggregation given the extent of information included on
State and LEA report cards required by the ESEA, as amended by the
ESSA. Section 1111(h)(1)(C)(xiv) and 1111(h)(2)(C)(2)(iii) provide for
States and LEAs to include on report cards any additional information
they believe will best provide parents, students, and other members of
the public with information regarding the progress of each of the
State's public elementary and secondary schools. The Department will
take into consideration one commenter's question on the reporting
categories under Sec. 200.37 as we consider guidance to support States
and LEAs on the implementation of the reporting requirements under the
ESEA, as amended by the ESSA. We decline to add regulatory requirements
around the term ``inexperienced'' teachers; while we agree with the
comment concerning the value of having teachers of Native American
students who have experience with native culture or language, States
may add these type of requirements if they choose to do so. Finally,
regarding highly-qualified teacher requirements, the ESEA, as amended
by the ESSA, eliminates the highly-qualified teacher requirements under
the ESEA, as amended by the ESSA.\28\ Under title I of the ESEA, as
amended by the ESSA, the SEA is required to ensure that all teachers
and paraprofessionals working in a program supported with funds under
title I meet applicable State certification and licensure requirements,
including any requirements or certification obtained through
alternative routes to certification.
---------------------------------------------------------------------------
\28\ The ESSA also amended the IDEA by removing the definition
of ``highly qualified'' in section 602(10) and the requirement in
section 612(a)(14)(C) that special education teachers be ``highly
qualified'' by the deadline established in section 1119(a)(2) of the
ESEA, as amended by NCLB. However, Section 9214(d)(2) of the ESSA
amended section 612(a)(14)(C) of the IDEA by incorporating the
requirement previously in section 602(10)(B) that a person employed
as a special education teacher in elementary school, middle school,
or secondary school must: (1) Have obtained full certification as a
special education teacher (including certification obtained through
alternative routes to certification), or passed the State special
education teacher licensing examination and hold a license to teach
in the State as a special education teacher, except that a special
education teacher teaching in a public charter school must meet the
requirements set forth in the State's public charter school law; (2)
not have had special education certification or licensure
requirements waived on an emergency, temporary, or provisional
basis; and (3) hold at least a bachelor's degree.
---------------------------------------------------------------------------
Changes: None.
Other Data--Civil Rights Data Collection Data
Comments: Some commenters requested that the Department specify the
data elements that States must report under sections
1111(h)(1)(C)(viii) and 1111(h)(2)(C) of the ESEA, as amended by the
ESSA. Specifically, some commenters requested that we clarify in
regulations what States must report regarding, for example, the number
and percentage of students enrolled in preschool programs, data on
chronic absenteeism, and data on incidents of violence.
Discussion: The Department appreciates these comments requesting
clarification the information that States need to implement the
provisions under section 1111(h)(1)(C)(viii) and 1111(h)(2)(C) of the
ESEA, as amended by the ESSA. These provisions require State and LEA
report cards to include information as reported under the Civil Rights
Data Collection (CRDC) in categories including measures of school
quality, climate, and safety, including rates of in-school suspensions,
out-of-school suspensions, expulsions, school-related arrests, and
referrals to law enforcement; chronic absenteeism (including both
excused and unexcused absences); incidences of violence, including
bullying and harassment; number and percentage of students
[[Page 86189]]
enrolled in preschool programs; and the number and percentage of
students enrolled in accelerated coursework to earn postsecondary
credit while still in high school. We wish to allow States and LEAs
flexibility regarding the particular data elements they use to report
information on these categories. We will consider providing additional
information about how States and LEAs can meet these requirements as we
consider guidance to support States and LEAs on the implementation of
the reporting requirements under the ESEA, as amended by the ESSA.
Sections 299.13-299.19 Cross-Cutting Issues
Accessibility of Notices, Documentation, and Information
Comments: Many commenters remarked on the requirements that appear
in Sec. 299.13(f) and proposed Sec. 299.18(c)(4)(v), which
specifically reference the use of Web sites to publish required
information including a consolidated State plan or individual program
State plan, and information regarding educator equity. These sections
include specific language designed to maximize access to the required
information by individuals with disabilities and individuals with
limited English proficiency. While a small number of commenters
supported the proposed accessibility requirements generally, several of
the commenters expressed concern that the requirements do not
sufficiently ensure that parents and other stakeholders are able to
access the information regarding the consolidated State plan or
individual program State plan or the information regarding educator
equity. Of the commenters expressing concern, many discussed the
accessibility of notices, documentation, and information provided on
SEA and LEA Web sites, particularly for individuals with disabilities
or individuals with limited English proficiency.
Discussion: The Department agrees with the commenters regarding the
necessity of ensuring that all parents and other stakeholders,
including those with disabilities and those with limited English
proficiency, have meaningful access to the information disseminated
under these provisions. Such access is critical to ensure transparency
to parents, educators and the public on State plans and educator equity
data. Regarding additional regulatory language to ensure that
individuals with limited English proficiency can access notices and
documentation and information, please see discussion in Sec.
200.21(b)(2). Regarding additional regulatory language to ensure that
individuals with disabilities can access the information regarding a
State's consolidated State plan or individual program State plan and
information regarding educator equity, please see discussion in Sec.
200.30(c). In every instance in Sec. 299.13 where an SEA is required
to publish information or data, we are aligning the language throughout
the section.
Changes: We have aligned the language in Sec. 299.13(b)(1),
(b)(2), (c)(1)(iii)(E), and (f) to require the information to be
published ``on the SEA's Web site in a format and language, to the
extent practicable, that the public can access and understand in
compliance with the requirements under Sec. 200.21(b)(1) through
(3).''
Section 299.13 Overview of State Plan Requirements
Proposed Removal of All Plan Requirements
Comments: Several commenters recommended removing Sec. Sec.
299.13-299.19 from the final regulations. These commenters argued that
States should be permitted to establish State plan procedures and
timelines. Additionally, commenters stated that the Department lacks
authority to require a State to provide the specific information
detailed in Sec. Sec. 299.13-299.14.
Discussion: Whether a State submits consolidated State plans or
individual program plans, the statute provides the Secretary with
authority to establish procedures and timelines for submission. For
example the individual program State plans in title II, part A, are
generally to be submitted ``at such time and in such manner as the
Secretary may reasonably require'' under section 2101(d)(1) of the
ESEA, as amended by the ESSA. In regards to consolidated State plans,
section 8302(a)(1) of the ESEA, as amended by the ESSA, indicates that
the Secretary ``shall establish procedures and criteria under which,
after consultation with the Governor, a State educational agency may
submit a consolidated State plan or a consolidated State application
meeting the requirements of this section.'' Additionally, section 410
of GEPA, 20 U.S.C. 1221e-3, authorizes the Secretary, ``in order to
carry out functions otherwise vested in the Secretary by law or by
delegation of authority pursuant to law, . . . to make, promulgate,
issue, rescind, and amend rules and regulations governing the manner of
operations of, and governing the applicable programs administered by,
the Department.'' Moreover, section 414 of the DEOA similarly
authorizes the Secretary to prescribe such rules and regulations as the
Secretary determines necessary or appropriate to administer and manage
the functions of the Secretary or the Department. 20 U.S.C. 3474.
The regulatory provisions in Sec. Sec. 299.13-299.19 specify that
the State plan requirements are being issued in accordance with the
authority granted to the Secretary by GEPA, DEOA, and section 8302 of
the ESEA, as amended by the ESSA. With respect to the commenter's
specific concern that States should be allowed the discretion to
establish State plan procedures and timelines, Sec. Sec. 299.13-299.19
are not inconsistent with individual program State plan requirements or
the consolidated State plan requirements in section 8302 because the
Secretary has the authority to establish the time and manner for
submission of individual program State plans and establish the
procedures and criteria for a consolidated State plan under section
8302.
Changes: None.
Additional Assurances
Comments: Several commenters noted that section 8302(b)(3) of the
ESEA, as amended by the ESSA, requires the Department to explicitly
include an assurance regarding the equitable participation of private
school students and teachers because it is, according to the
commenters, absolutely necessary for the consideration of the
consolidated State plan. This assurance was not, however, included in
the proposed regulations, and the commenters recommend that Sec.
299.13(c) be amended to include it.
Additionally, one commenter requested that States provide the
assurances in section 1111(g) of the ESEA, as amended by the ESSA,
specifically emphasizing that the Committee of Practitioners has been
involved in the development of the State plan.
Discussion: We agree, in part, with these commenters. Section
8302(b)(3) of the ESEA, as amended by the ESSA, contemplates that the
consolidated State plan include an assurance of compliance with
applicable provisions regarding participation by private school
children and teachers. Therefore, we agree with the commenters that
this assurance is a necessary part of the consolidated State plan. We
are adding Sec. 299.14(c), a new section on consolidated State plan
assurances, to include an assurance regarding participation by private
school children and teachers.
[[Page 86190]]
However, the Department declines to include an additional assurance
regarding the Committee of Practitioners. All statutory assurances for
covered programs are generally applicable under section 8304(a) of the
ESEA, as amended by the ESSA, which requires that each SEA assure that
each program covered by the State plan be administered in accordance
with all applicable statutes, regulations, program plans and
applications. Furthermore, section 8302(b)(3) of the ESEA, as amended
by the ESSA, requires the Secretary to include only assurances that are
absolutely necessary for the consideration of consolidated State plans.
Therefore, we do not think it is necessary to include a specific
assurance regarding the Committee of Practitioners.
Changes: We have revised Sec. 299.14 to include a new Sec.
299.14(c) on consolidated State plan assurances, which includes a new
assurance regarding State compliance with sections 8501 and 1117 of the
ESEA, as amended by the ESSA, regarding participation by private school
children and teachers.
Section 299.13(k) Individual Program State Plan Requirements for Title
I, Part C
Comments: None.
Discussion: Based on further internal review, the Department is
clarifying in final Sec. 299.13(k)(2) that SEAs who choose to submit
individual program State plans for title I, part C, must also meet the
consolidated State plan requirements in Sec. 299.19(b)(2) in order to
address sections 1303(f)(2), 1304(d), and 1306(b)(1) of the ESEA, as
amended by the ESSA. The specific requirements are related to the
proper identification and recruitment of eligible migratory children
and their unique educational needs, consultation, measureable program
objectives, and uses of funds. It is essential for all title I, part C
State plans, whether submitted as an individual title I, part C State
plan or consolidated State plan to address these requirements as they
provide necessary information for each SEA and the Department in
addressing statutory requirements included in title I, part C of the
ESEA, as amended by the ESSA.
Changes: We have added Sec. 299.13(k)(2) to include the specific
requirements in Sec. 299.19(b)(2) for title I, part C that a State
must also include if it submits an individual title I, part C State
plan.
Section 299.13(b) Timely and Meaningful Consultation
Comments: Many commenters supported the Department's proposed
requirements for timely and meaningful consultation in Sec. 299.13(b).
Commenters appreciated that the requirements emphasized consultation
with a variety of stakeholders at various stages of State plan
development, including an explanation of how input was taken into
consideration. A number of commenters requested that the Department
align the requirements with the Secretary's Dear Colleague letter
issued on June 23, 2016, regarding stakeholder engagement (Stakeholder
Engagement DCL). Many commenters also requested that the Department
provide further guidance consistent with the requirements in Sec.
299.13(b) for other ESEA programs. One commenter suggested that the
Department consider providing more specific resources for ensuring
meaningful stakeholder engagement. Another commenter suggested that the
Department provide guidance clarifying that meaningful engagement means
engagement in ways that are culturally and linguistically responsive.
Discussion: The Department appreciates the extensive support for
the timely and meaningful consultation requirements in Sec. 299.13(b).
In order to ensure that States implement ESEA with fidelity, the
Department strongly encourages States to consult and engage with
stakeholders consistent with the best practices identified in the
Stakeholder Engagement DCL, which is available at: http://www2.ed.gov/policy/elsec/guid/secletter/160622.html. In addition to ensuring the
specific requirements in Sec. 299.13(b) are met during the design and
development of the SEA's plan, prior to initial submission of the plan,
and prior to any revisions or amendments of the approved plans, the
Department encourages States to consider applying the timely and
meaningful consultation requirements throughout its implementation of
the ESEA, as amended by the ESSA. Where relevant, we will consider
issuing additional ESEA non-regulatory guidance regarding timely and
meaningful consultation in the future, including guidance on culturally
and linguistically responsive engagement.
Changes: None.
Comments: While commenters generally supported the requirements for
timely and meaningful consultation in Sec. 299.13(b), several
recommended changes or additions to the proposed requirements. Some
commenters asked that the regulations require not only consultation
during preparation of the State plan, but also throughout
implementation of the plan. Other commenters asked that language be
added requiring States to describe their systems and structures for
ensuring that meaningful and continuous stakeholder engagement occurs.
Additional commenters asked that the regulation be amended to
require States to: (1) Provide 60 days public notice of the draft State
plan; (2) provide written agendas prior to meetings and written
responses to public comments; and (3) ensure high quality two-way
communications between the State and stakeholders about the State plan.
In particular, some commenters asked that two-way communication be
required with teachers, and with parents and families. Another
commenter suggested that the final regulations require that stakeholder
engagement include meetings that educators can attend, which one
commenter specifically provided should be through the provision of
flexible leave to school employees for attendance at such meetings.
Discussion: The Department appreciates the comments suggesting
additional requirements for timely and meaningful consultation but
declines to add the requested requirements, which are, for the most
part, already addressed in the regulations. We are requiring SEAs in
the performance management requirements in Sec. 299.15(b)(2)(i) to
``collect and use data and information, which may include input from
stakeholders and data collected and reported under section 1111(h), to
assess the quality of SEA and LEA implementation.'' In regards to
requiring descriptions of systems and structures for consultation and
requiring two-way communication about the plan, Sec. 299.13(b) details
a process that States must follow to satisfy the requirement for timely
and meaningful consultation, including a requirement in Sec.
299.13(b)(3) that the State ``[d]escribe how the consultation and
public comment were taken into account in the consolidated State plan
or individual program State plan.'' Therefore, we believe that States
will provide valuable information on how the communication was a two-
way dialogue. In addition, the provisions in Sec. 299.15(b)(2)(i)
encourage each SEA to continue to meaningfully engage with stakeholders
to collect data on implementation of SEA and LEA plans. In regards to
requiring two-way consultation specifically with teachers, and with
parents and families, these two groups are among those already listed
in Sec. 299.15(a) with whom the State must ``. . . [engage] in timely
and meaningful
[[Page 86191]]
consultations consistent with Sec. 299.13(b).'' We encourage all
States to specifically ensure that timely and meaningful consultation
occurs during hours that parents, families, and current educators can
participate and identified this as a best practice in the Stakeholder
Engagement DCL.
In response to the comments requesting that we extend the public
notice period from 30 days to 60 days, the Department encourages all
States to provide as much time for public notice and outreach as
possible. However, since section 1111(a)(8) of the ESEA, as amended by
the ESSA, on which this requirement is based, only requires a State to
make the State plan available for ``not less than 30 days,'' the
Department declines to make this change. With regard to adding language
requiring agendas and written follow up to comments, the Department
encourages States to provide this sort of feedback to stakeholders,
whenever possible, but finds making this a requirement would be unduly
burdensome. Given the volume of comments received indicating that the
consolidated State plan requirements, as drafted, are overly
burdensome, the Department will not add the additional requirements to
the consolidated State plan.
Changes: None.
Comments: Several commenters suggested that the regulations should
require States to engage with Tribal governments above and beyond
stakeholder engagement. Commenters recommended that the Department use
Executive Order 13175 as a guide for ensuring that the regulations
properly outline tribal consultation in the regulations. Commenters
suggested that including a requirement in Sec. 299.13(b) for SEAs to
consult with tribes using agendas that are agreed upon in advance, and
requiring SEAs to follow up in writing with stakeholders would help
ensure that consultation is meaningful, and is respectful of the trust
responsibility. Finally, one commenter urged the Department to
condition State plan approval upon proof of meaningful consultation
with Tribal nations.
Discussion: The commenter correctly notes that the Department has a
government-to-government relationship with tribes, and that the
consultation between the Department and tribes is outlined in Executive
Order 13175. However, the Federal trust responsibility does not extend
to SEAs. Therefore, the Department declines to add language to Sec.
299.13(b) regarding additional requirements for tribal consultation. As
noted previously, the Department encourages SEAs to provide agendas and
written follow-up to stakeholders, whenever possible, but finds making
this a requirement unduly burdensome.
In response to the commenter who asked that State plan approval be
conditioned upon proof of meaningful consultation with Tribal nations,
Sec. 299.13(b)(3) requires States to describe how consultation and
public comment were taken into account in the consolidated or
individual State plan. We believe that this requirement addresses the
commenter's concerns. Therefore, we decline to add additional language.
Changes: None.
Comments: Several commenters expressed satisfaction with the
required processes for how States should engage in timely and
meaningful consultation with stakeholders in formulating the State
plan. Commenters asked that Sec. 299.13(b) be amended to require LEAs
to use the same timely and meaningful consultation processes in
formulating LEA plans.
Discussion: The Department declines to add the requested
requirement as it is outside of the scope of the regulations, which
address only State plan requirements, not requirements for LEA plans.
Additionally, if States choose to allow LEAs to submit consolidated LEA
plans, section 8305(c) of the ESEA, as amended by the ESSA, makes clear
that procedures for submission of the plans are not set by the
Department noting, ``a State educational agency, in consultation with
the Governor, shall collaborate with local educational agencies in the
State in establishing procedures for the submission of the consolidated
State plans or consolidated State applications under this section.'' If
the State decides to use individual program applications rather than a
consolidated local plan, individual applications for most covered
programs already include consultation requirements. However, because we
believe that timely and meaningful consultation is important and that
ESEA implementation must be transparent, we encourage States to
consider including the timely and meaningful consultation requirements
at the local level.
Changes: None.
Comments: A few commenters commended the Department for including
consultation with the Governor under section 8540 of the ESEA, as
amended by the ESSA, in the requirements for timely and meaningful
consultation in Sec. 299.13(b). Two commenters requested that the
Department require States to describe how they are meeting this
requirement, including how the SEA engaged with the Governor by
describing, among other things, the frequency of meetings and the
extent of collaborative planning.
Discussion: Although the Department believes that SEA consultation
with the Governor is important, the Department declines to require an
additional description regarding how the SEA completed this
consultation. Section 299.15 requires an SEA to describe how it engaged
in timely and meaningful consultation consistent with Sec. 299.13(b),
including the Governor's consultation requirement in Sec.
299.13(b)(4). An SEA must already describe in its consolidated State
plan how it met the requirements of section 8540 of the ESEA, as
amended by the ESSA. Therefore, we do not believe that requiring an
additional description is necessary. Furthermore, in order to limit
burden associated with submitting a consolidated State plan, the
Department declines to add an additional requirement that an SEA, when
describing how it consulted with the Governor, describe the frequency
of meetings and the extent of collaborative planning.
Changes: None.
Foster Care Requirements
Comments: Many commenters expressed concern about the proposed
assurance in Sec. 299.13(c)(1)(ii) that required SEAs to ensure that
LEAs receiving funds under title I, part A of the ESEA, as amended by
the ESSA, would provide children in foster care with transportation to
and from their schools of origin even if the LEA and local child
welfare agency did not agree on which agency or agencies would pay the
additional costs incurred to provide such transportation. Many
commenters indicated that the assurance appeared inconsistent with
section 1112(c)(5)(B) of the ESEA, as amended by the ESSA, and
expressed concern that it would undermine the collaborative process
anticipated by the ESEA. Other commenters expressed concern that the
regulations would impose a significant financial burden on LEAs.
Many commenters praised the Department for including the
protections for children in foster care in the State plan requirements,
but many also proposed that the final regulations mirror the statutory
requirements for collaboration. Other commenters suggested that the
regulations require the procedures developed by the LEA and child
welfare agency to include a dispute resolution process. Some commenters
specified that it should be the child welfare agency that pays the
additional costs of transportation, and
[[Page 86192]]
others asked that the regulations require the LEA and child welfare
agency to automatically split the costs if the agencies cannot reach
agreement. A number of commenters requested that the regulations
require both the SEA and the State child welfare agencies to ensure
that the LEAs and local child welfare agencies collaborate to develop
and implement clear written transportation procedures. Some commenters
also requested that the regulations be amended to clarify that the LEA
must provide or arrange for adequate and appropriate transportation to
and from the school of origin while any disputes are being resolved.
Other commenters expressed concern that requiring the LEA to provide
transportation while disputes were being resolved would cause child
welfare agencies to initiate a dispute process in order to avoid paying
for transportation.
Discussion: The Department appreciates the concerns expressed by
commenters that the proposed regulations may undermine that
collaborative process by defaulting to the LEA as the responsible party
for paying any additional transportation costs. Likewise, the
Department believes that defaulting to the child welfare agency as the
sole agency responsible for paying any additional costs associated with
providing transportation would undermine the collaborative nature of
the statute. As noted in the Department's non-regulatory guidance
entitled Ensuring Educational Stability for Children in Foster Care,
children in foster care are a particularly vulnerable subgroup of
students. We believe these students have a right to educational
stability, including transportation services as needed, to maintain
them in their school of origin when in their best interest. Therefore,
the Department believes that the final assurance in Sec.
299.13(c)(1)(ii) should clarify the joint obligations for educational
and child welfare agencies to ensure that transportation is provided to
maintain educational stability.
The Department likewise recognizes that there may be circumstances
where a dispute resolution process is required if an LEA and child
welfare agency are unable to reach agreement as to which agency or
agencies will pay any additional costs that may be associated with
providing transportation to children in foster care to and from their
schools of origin. However, the Department does not believe it is
necessary to mandate a specific dispute resolution process as the
statute clearly requires that LEAs collaborate with child welfare
agencies to develop procedures that ensure that children in foster care
needing transportation promptly receive such transportation.
In order to ensure this statutory requirement is met, the
Department is clarifying that the SEA must assure that an LEA receiving
funds under title I, part A has developed procedures that describe how
such transportation will be provided and funded if the agencies cannot
reach agreement, whether through a dispute resolution process or
through default cost sharing. An SEA's assurance here means that the
SEA must take a leading and active role to ensure that LEAs collaborate
with State and local child welfare agencies to develop clear and
written procedures regarding how children in foster care will receive
transportation, as necessary, to their school of origin when determined
to be in their best interest.
We appreciate commenters' concerns about children in foster care
continuing to receive transportation to the schools of origin while
disputes are pending, along with concerns about which agency or
agencies should be responsible for providing this transportation, and
are clarifying that the written procedures must also describe which
agency or agencies will initially pay the additional costs incurred in
providing transportation so that transportation is provided promptly
during the pendency of the dispute. We believe that the appropriate
agency or agencies responsible for initially paying the additional
costs incurred may vary depending on the individual child's
circumstances. The LEA and local child welfare agency should explore a
variety of options that consider such circumstances. For example, for
one child, the foster parent may be willing to transport the child to
the child's school of origin; for another child, there may existing
transportation readily available; and there may be instances that
necessitate the child's transportation being funded.
Changes: We have revised Sec. 299.13(c)(1)(ii) to remove the
language requiring the LEA to provide transportation to children in
foster care if the LEA and child welfare agency do not agree on which
agency or agencies will pay any additional costs incurred to provide
such transportation. We have also added language to clarify that the
written procedures developed by the LEA and State or local child
welfare agency must address how the transportation requirements will be
met in the event of a dispute over which agency or agencies will pay
any additional costs incurred in providing transportation and indicate
which agency or agencies will initially pay the additional costs so
that transportation is provided promptly during the pendency of the
dispute.
Comments: Several commenters wrote to express views on the best
interest determination, school of origin, the timing of implementation
of the new educational stability provisions, the foster care point of
contact, the timing of the best interest determination, and other
related issues concerning the educational stability of children in
foster care.
Discussion: We agree that the educational stability of children in
foster care is an important issue and appreciate the feedback on this
issue. The proposed regulations, however, only addressed the topic of
which agency or agencies should pay any additional costs associated
with providing transportation to children in foster care to and from
their schools of origin. Comments on related issues--such as the best
interest determination, school of origin, and concerns about timing--
are therefore outside the scope of the regulations. Furthermore, these
topics are addressed in the Department's non-regulatory guidance
entitled Ensuring Educational Stability for Children in Foster Care.
For clarity on the statutory requirements in Sections 1111(g)(1)(E) and
1112(c)(5) of the ESEA, as amended by the ESSA, we refer commenters to
this non-regulatory guidance document.
Changes: None.
Plan Submission Process
Comments: Several commenters remarked on the proposed plan
submission dates of March 6, 2017, or July 5, 2017. Many of these
commenters indicated that the proposed timeline for submission did not
allow sufficient time for consultation; of particular concern was
States' ability to adequately consult on a new accountability system
prior to having the system ready to implement in the 2017-2018 school
year. Some commenters expressed concern that the proposed submission
dates would require that States begin to implement their accountability
systems in school year 2017-2018 before their plans could be approved
by the Secretary. Other commenters felt that the proposed submission
deadlines were too late to ensure that SEAs had an approved plan in
place in time to identify comprehensive and targeted support schools
for the 2017-2018 school year and asked that the submission date be
moved up to December 2016; two of these commenters also recommended
that the Department's review timeline be shortened from 120 to 60 days
to ensure that plan approval occurs prior
[[Page 86193]]
to the beginning of the 2017-2018 school year. Other commenters
suggested that the Department allow SEAs to submit portions of the plan
in a staggered fashion to allow additional time for consultation.
Discussion: Given that the Department has revised Sec. 200.19(d)
to permit States to delay full implementation of their accountability
systems until the 2018-2019 school year and to allow SEAs additional
time for timely and meaningful consultation, the Department has
determined it is appropriate to adjust plan submission timelines and
offer later submission dates. Accordingly, the Department will adjust
the submission deadlines to April 3, 2017, or September 18, 2017.
The Department declines to move submission timelines up to December
2016 because doing so would not allow sufficient time for each SEA to
engage in timely and meaningful consultation consistent with Sec.
299.13(b). The Department also declines to reduce its time to review
plans from 120 to 60 days; sections 1111(a)(4)(A)(v) and 8451 of the
ESEA, as amended by the ESSA, allow 120 days for review and the
Department believes that a 60-day review period allows inadequate time
for the required peer review. While the Department appreciates the idea
of allowing SEAs to submit their plans in parts, the Department
believes that the entire consolidated State plan must be submitted at
one time to ensure fully coordinated strategies.
Changes: None.
Comments: One commenter requested clarification on Sec. 299.13(e)
regarding the process for submitting revisions of consolidated State
plans during the period for Secretarial review under sections
1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the ESSA. This
commenter also requested that the Department streamline the process for
review.
Discussion: The Department appreciates the opportunity to clarify
the requirements in Sec. 299.13(e). During the period of Secretarial
review, an SEA may revise its initial plan in response to a preliminary
written determination by the Secretary. When submitting revisions to
the plan the SEA originally submitted, the SEA must resubmit the entire
revised State plan, not just the parts that contain the additional
revisions. The Department intends to provide additional information on
the timing, format, and process for submitting and reviewing
consolidated and individual program State plans in the near future.
Additionally, proposed Sec. 299.13(b)(2)(iii) required timely and
meaningful consultation prior to the submission of any significant
revisions or amendments to the consolidated State plan. In order to
distinguish the requirements for revising an initial State plan from
the timely and meaningful consultation requirements for an approved
State plan, the Department is clarifying the language in Sec.
299.13(b)(2)(iii) to apply to an approved consolidated State plan or
individual program State plan rather than an initial consolidated State
plan.
Changes: The Department has revised Sec. 299.13(e) to indicate
that an SEA, when resubmitting its initial consolidated State plan,
must resubmit the entire State plan, which includes its revisions. We
have also clarified that the timely and meaningful consultation
requirements in Sec. 299.13(b)(2)(iii) apply to an approved
consolidated State plan or individual program State plan and not to the
process for revising initial consolidated State plans under Sec.
299.13(e).
Comments: None.
Discussion: Under Sec. 299.13(d)(i), the Department described the
process for submitting an initial consolidated State plan or individual
program State plan. In the proposed regulation Sec. 299.13(d), we
indicated that an SEA must submit the plan to the Department on a date
and time to be established by the Secretary. The Department is
clarifying that the Secretary will, at a future date, also establish
the manner (e.g., electronic or paper) by which an SEA must submit its
State plan. Under proposed Sec. 299.13(d)(ii), the Department detailed
when a consolidated State plan or individual program State plan was
considered to be submitted by the Secretary if it was received prior to
an established deadline. We are clarifying that any State plan received
prior to the deadline established by the Secretary is considered to be
submitted on the date of the established deadline (rather than the date
received) for the purposes of the 120 day period of Secretarial review
under sections 1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the
ESSA.
Changes: The Department has revised Sec. 299.13(d)(i) to indicate
that an SEA must submit its consolidated State plan or individual
program State plan in the manner (e.g., paper or electronic) to be
established by the Secretary. The Department has also revised Sec.
299.13(d)(ii) to indicate that the provision regarding State plans
received prior to an established deadline is for the purposes of
tolling the period of Secretarial review under sections
1111(a)(4)(A)(v) or 8451 of the ESEA, as amended by the ESSA.
Extension for Reporting Student-Level Data
Comments: As discussed later in this document under Sec.
299.18(c), a few commenters noted that the requirement to provide
educator equity data at the student level is burdensome. Commenters
expressed concern as to whether the Department could prescribe any date
at which the reporting of student-level data is required.
Discussion: While a few commenters suggested removing the student-
level data requirement altogether, as discussed later in this document
under Sec. 299.18(c), we believe the requirement to provide educator
equity data at the student level is critical. However, we understand
that some States may not currently have the capacity to collect or
report data at the student level. In light of the fact that the
requirement may be burdensome for certain States and districts that
have not yet begun collecting or using student-level data, the
Department is adding an additional year to the extension that an SEA
may request, detailed in Sec. 299.13(d)(3). An SEA requesting a three-
year extension for providing educator equity data at the student level
must, during the three-year extension, publish and provide those data
in its State plan at the school level, consistent with Sec.
299.13(d)(3)(ii).
Changes: We have revised Sec. 299.13(d)(3) to allow an SEA to
request an extension for three years if it provides the information and
data required under Sec. 299.18(c) at the school level and submits a
detailed plan and timeline to provide those data at the student level
within three years of the date of submission of its title I, part A
State plan or consolidated State plan.
Section 299.14 Requirements for the Consolidated State Plan
Content of the Consolidated State Plan--Burden and Authority
Comments: While a small number of commenters appreciated the
integrated and comprehensive nature of the proposed consolidated State
plan requirements, several commenters objected to the volume of
proposed consolidated State plan requirements. The commenters asserted
that the Department has the statutory authority, under section 8302 of
the ESEA, as amended by the ESSA, to require an SEA to provide ``only
descriptions, information, assurances . . . and other materials that
are absolutely necessary for the consideration of the consolidated
State plan.'' Some commenters stated that the requirements would result
in cumbersome and complicated plans that stakeholders would find
difficult to
[[Page 86194]]
review and understand. Other commenters asserted that the requirements
promoted certain education policies not explicitly required in the
statute and would allow the Department to implement a peer review
process that further promoted those policies. Some commenters
recommended that the Department condense and streamline the
consolidated State plan requirements, but did not make specific
recommendations for requirements to remove. Others recommended that the
Department reduce specific consolidated State plan requirements
including the performance management requirements in proposed Sec.
299.14, assessment requirements in proposed Sec. 299.16, teacher
quality and equity requirements in proposed Sec. 299.18, and the well-
rounded and supportive education for all students requirements in
proposed Sec. 299.19.
Discussion: Section 8302(a)(1) of the ESEA, as amended by the ESSA,
indicates that the Secretary ``shall establish procedures and criteria
under which, after consultation with the Governor, [an SEA] may submit
a consolidated State plan or a consolidated State application meeting
the requirements of this section.'' Additionally, section 410 of GEPA,
20 U.S.C. 1221e-3, authorizes the Secretary, ``in order to carry out
functions otherwise vested in the Secretary by law or by delegation of
authority pursuant to law, . . . to make, promulgate, issue, rescind,
and amend rules and regulations governing the manner of operations of,
and governing the applicable programs administered by, the
Department.'' Moreover, section 414 of the DEOA similarly authorizes
the Secretary to prescribe such rules and regulations as the Secretary
determines necessary or appropriate to administer and manage the
functions of the Secretary or the Department. 20 U.S.C. 3474. The
requirements for a consolidated State plan in Sec. Sec. 299.14-299.19
are being issued in accordance with the authority granted to the
Secretary by GEPA, DEOA, and section 8302 of the ESEA, as amended by
the ESSA. With respect to the commenters' concerns that the Secretary
does not have the authority to include some of the required
descriptions or information because it is not ``absolutely necessary
for consideration of the consolidated State plan,'' all of the
descriptions, information and assurances included in Sec. Sec. 299.14-
299.19 have been determined by the Secretary to be absolutely necessary
and consistent with the authority in section 8302 of the ESEA, as
amended by the ESSA. The consolidated State plans must provide
sufficient detail across the included programs in order to ensure
transparency for all stakeholders, proper administration of Federal
funds and allow the Secretary to consider whether such plan is
consistent with the ESEA, as amended by the ESSA, and applicable
regulations. Additionally, consistent with the purpose of the
consolidated State plan, we believe that the regulations would
significantly reduce burden on each SEA choosing to submit a
consolidated State plan rather than individual program State plans.
Furthermore, the Secretary believes that all requirements of the
consolidated State plan have a statutory basis in the covered program
provisions throughout the ESEA, as amended by the ESSA, and other
applicable regulations.
In response to the concern that the Department may be promoting
specific education policies through the peer review process for the
consolidated State plan, the Department is required under section 8452
of the ESEA, as amended by the ESSA, to ensure that any portion of a
consolidated State plan that is related to title I, part A is subject
to the peer review process described in section 1111(a)(4) of the ESEA,
as amended by the ESSA. The Department intends to administer a peer
review of consolidated State plans consistent with the purpose of the
peer review under section 1111(a)(4)(B) to ``maximize collaboration
with each State; promote effective implementation of challenging State
standards through State and local innovation; and provide transparent,
timely, and objective feedback to States designed to strengthen the
technical and overall quality of the State plans.''
However, given the concerns expressed by several commenters and the
Department's desire to eliminate unnecessary burden from State plans,
we believe that some of the requirements within and across the
consolidated State plan regulations can be further consolidated.
Therefore, in an effort to reduce additional burden on States, we are
changing some previously required descriptions into either an optional
description or an assurance, and removing some previously required
descriptions entirely from the consolidated State plan. Additionally,
in an effort to streamline the requirements, we are reorganizing the
structure of the consolidated State plan to place all cross cutting
requirements in Sec. 299.15, including required descriptions on
consultation and performance management. For performance management,
each SEA would only have to discuss these cross-cutting requirements
once rather than under each component as proposed in Sec. 299.14(c).
Furthermore, we also believe that some of the requirements were not
clear and therefore were interpreted to be more burdensome than
intended. As a result, we are clarifying some consolidated State plan
requirements to address those instances where a lack of clarity in the
regulatory language resulted in an increase in perceived burden. The
discussion of the exact changes to reduce burden in Sec. Sec. 299.16-
299.19 of the consolidated State plan are discussed below in the
specific section where the changes were made.
Changes: We have moved the requirement in proposed Sec. 299.14(c)
regarding performance management to Sec. 299.15(b) and revised it so
that an SEA describes its system of performance management for
implementation of SEA and LEA plans once rather than separately for
each of the components required under Sec. Sec. [thinsp]299.16 through
299.19. With the exception of Sec. 299.18(c), we have streamlined the
required descriptions throughout Sec. Sec. 299.15 through 299.19 by
removing the requirement to identify specific strategies and timelines
in each required description. We have also revised proposed Sec.
299.14(c)(1) and (2)(i) to make certain descriptive details optional
rather than required regarding how the SEA's plan approval process is
aligned to the strategies identified in the consolidated State plan and
whether to consider specific data collected and reported under section
1111(h) of the ESEA, as amended by the ESSA, and specific input from
stakeholders when assessing the quality of SEA and LEA implementation.
The changes are reflected in final Sec. 299.15(b)(1) and (2). As a
result of those changes, we have removed the requirement in proposed
Sec. 299.19(a)(3)(A)-(D) regarding a review of data and information on
resource equity, and revised final Sec. 299.15(b)(2) to indicate that
each SEA may consider such information broadly as part of review and
approval of LEA plans under the revised requirements for an SEA's
system of performance management. We have also removed the requirement
in proposed Sec. 299.15(b) for each State to describe how it will
coordinate across Federal laws impacting education and included this
requirement as an assurance in the new section on consolidated State
plan assurances in final Sec. 299.14(c). We have further removed some
previously required descriptions and streamlined other requirements in
Sec. Sec. [thinsp]299.16 through 299.19 including by changing
[[Page 86195]]
previously required descriptions into assurances and only requiring
certain descriptions if a State intends to use Federal funds for that
purpose.
Comments: Some commenters suggested that additional State plan
requirements be added to proposed Sec. 299.14. Specifically, one
commenter asked that proposed Sec. 299.14(c) be augmented to include a
requirement that SEAs ensure data transparency by describing their
plans for preparing and disseminating State report cards, and for
ensuring that LEAs prepare and disseminate local report cards. Other
commenters asked that proposed Sec. 299.14(c) be amended to require
that SEAs provide additional information about their strategies and
timelines for ensuring continuous improvement so that States
continuously improve all strategies, not just strategies that do not
lead to satisfactory progress.
Discussion: The Department agrees with the commenters that data
transparency and promotion of continuous improvement are important
goals. To that end, we have already included in final Sec. 299.15(b)
requirements that consolidated State plans address continuous
improvement strategies and the use of data in the consolidated State
plan. We have also established in Sec. Sec. 200.30 and 200.31
requirements to ensure that State and local report cards contain all
elements required by the statute, including that these report cards be
presented in an understandable and uniform format. However, given the
comments received indicating that the consolidated State plan
requirements, as drafted, are overly burdensome, the Department will
not add additional requirements to the consolidated State plan. The
Department believes that existing statutory and regulatory requirements
for report cards are sufficient to ensure data transparency. We agree
with the comment on proposed Sec. 299.14(c) that SEAs should review
all strategies for continuous improvement and not only those strategies
that are not improving outcomes and are revising final Sec.
299.15(b)(2)(iii) to ensure that SEAs review all SEA and LEA plans and
implementation of those plans for continuous improvement.
Changes: We have revised Sec. 299.15(b)(2)(iii) to require that an
SEA describe its plan to continuously improve implementation of all SEA
and LEA plans.
Integrated Nature of the State Plan
Comments: Several commenters supported the Department's proposal
that SEAs develop consolidated State plans that address: Consultation
and coordination; challenging academic standards and assessments;
accountability, support, and improvement for schools; supporting
excellent educators; and supporting all students in a truly
consolidated manner across all covered programs. One commenter
expressed concern that the State plan structure is insufficiently
integrated and will reinforce traditional silos in the education
system; this commenter recommended that the regulations require SEAs to
articulate a vision or theory of action that ties the five components
of the consolidated State plan together.
Discussion: We appreciate commenters' support for the proposed
regulations. With regard to a requirement that SEAs articulate an
overall vision or theory of action, while we encourage SEAs to do this,
we believe that requirement would unnecessarily increase burden on
States.
Changes: None.
Section 299.15 Consultation and Coordination
Stakeholder Engagement
Comments: Many commenters recommended that the Department
strengthen the requirements related to SEAs' consultation with
stakeholders during the design and development of the consolidated
State plan. Specifically, commenters requested that the Department
ensure that the voices of stakeholders are heard. Another commenter
suggested that the Department ensure that teachers are in control of
the education system. Additionally, one commenter suggested that the
process for revising the consolidated State plan should be vetted by a
wide range of stakeholders. An additional commenter suggested that the
Department define the term ``to be developed in partnership with
stakeholders'' to mean that the process must be proactive and
inclusive, and that partners must have all of the same information and
the assistance needed to fully understand it, the time to develop
responses, and the vehicles for responding.
In contrast, two commenters suggested that the consultation
requirements be removed from the consolidated State plan regulations to
permit States additional flexibility to establish State plan procedures
and timelines.
Discussion: The Department appreciates the comments on ways to
strengthen engagement, as well as the comments on the importance of
State flexibility in regard to these requirements. Just as we believe
that meaningful stakeholder engagement is critical to the consolidated
State plan development and implementation process, we also believe that
discrete decisions about the specific process for engagement are best
made at the local level.
We appreciate the best practices in consultation and stakeholder
engagement highlighted by many of the commenters, including information
sharing and providing vehicles for responding, as well as the proposed
definition that one commenter provided for the phrase ``to be developed
in partnership with stakeholders.'' We encourage the use of these best
practices throughout the consultation process. We further appreciate
that many commenters emphasized that their voice should be honored and
not undermined, and we believe the final regulations will help ensure
that a wide range of stakeholders will be consulted throughout the
process of consolidated State plan development and implementation. See
Sec. 299.13 for a discussion of additional comments related to timely
and meaningful consultation.
Changes: None.
Comments: Multiple commenters recommended that the Department
require each SEA to consult with additional stakeholder groups in
developing its consolidated State plan, including: Representatives of
private school students, representatives of non-government school
students and teachers, and non-government school students and teachers;
early childhood educators and leaders; parent and teacher advisory
groups and parents; representatives of teachers' unions; practicing and
current K-12 teachers; organization members who specifically represent
students with disabilities; civil rights organizations, including those
who represent lesbian, gay, bisexual, and transgender (LGBT) students;
tribal elected or appointed representatives; specialized instructional
support personnel; school psychologists; community representatives;
Alaska Native corporations; school librarians; local government;
individuals knowledgeable about how to meet the needs of specific
subgroups of students; entities that serve and support some of the most
vulnerable students, including students involved in child welfare,
homeless students, juvenile justice-involved youth, and workforce
development staff, providers, and advocates; employers; and families of
traditionally underserved students, including low-income children,
minority children; and English learners. Commenters
[[Page 86196]]
recommended that we require SEAs to consult with these specific groups
because of their unique voices, as well as the specialized needs of the
populations that these groups represent. Specifically with respect to
tribal elected or appointed representatives, the commenter noted while
the inclusion of ``representatives of Indian tribes located in the
State'' is important, representatives should not be named as surrogates
for tribal government representation.
Discussion: The final regulations include a broad group of required
stakeholders with whom each SEA must consult when developing its
consolidated State plan. This group includes each of the groups
prescribed by the statute, as well as additional stakeholder groups
that have the potential to bring important and varied perspectives to a
State's work to develop and implement a consolidated State plan.
Additionally, the required group of stakeholders in the regulations
includes a number of the stakeholder groups specifically requested by
commenters, including: Civil rights organizations, including those
representing students with disabilities, English learners, and other
historically underserved students; teachers, principals, other school
leaders, paraprofessionals, specialized instructional support
personnel, and organizations representing such individuals; community-
based organizations; employers; and parents and families. For these
reasons, we generally decline to add additional required stakeholder
groups, as requested by commenters.
However, we note that commenters highlighted two critical
stakeholder groups that were not included in Sec. 299.15(a) of the
proposed regulations and have unique perspectives to provide to a State
in its development of its consolidated State plan: Representatives of
private school students, and early childhood educators and leaders. We
find particularly compelling commenters' arguments that consolidated
State plans may not sufficiently reflect the interests of these two
stakeholder groups-representatives of private school students, and
early childhood educators and leaders-without the explicit inclusion of
these groups in the required list of stakeholders with whom a State
must consult in developing and implementing its consolidated State
plan. Therefore, we are expanding the list of required stakeholder
groups to explicitly include these two stakeholder groups.
Additionally, in order to address the concerns of commenters who did
not see their particular constituency represented in the required list
of stakeholders with whom a State must consult on its consolidated
State plan, we are clarifying in the final regulations that the
required group of stakeholders with whom a State must consult is a
mandatory, but non-exhaustive list, and may be supplemented by States
as appropriate, based on local context and need.
Changes: We have revised Sec. 299.15(a) to add the following to
the required list of stakeholders with whom a State must consult on its
consolidated State plan: Representatives of private school students,
and early childhood educators and leaders. We have clarified in Sec.
299.15(a) that the required stakeholder groups represent minimum
requirements and may be supplemented at each SEA's discretion.
Coordination
Comments: A few commenters expressed support regarding the
requirements for the Department's efforts to increase coordination
across related program plans. One commenter also suggested we add the
WIOA and career and technical educational programs to the list of
required programs for plan coordination.
Discussion: We appreciate the commenters' support for ensuring that
SEAs coordinate the work they are conducting under their consolidated
State plan with other programs in the State. The proposed regulations
in Sec. 299.15(b), as well as the final regulations in Sec.
299.14(c), include required coordination between the consolidated State
plan and an extensive group of plans from additional programs,
including under the WIOA and the Carl D. Perkins Career and Technical
Education Act of 2006.
Changes: None.
Section 299.16 Challenging Academic Standards and Academic Assessments
Challenging Academic Standards and Academic Assessments in General
Comments: Many commenters expressed concern regarding proposed
Sec. 299.16(a)(1) that requires an SEA to provide evidence at such
time and in such manner specified by the Secretary that the State has
adopted challenging academic content standards. Some commenters
indicated that the Department should only require an SEA to provide an
assurance that the State adopted challenging academic content standards
consistent with 1111(b)(1) of the ESEA, as amended by the ESSA.
Discussion: As some commenters noted, section 1111(b)(1)(A) of the
ESEA, as amended by the ESSA, requires each State, in its title I, part
A State plan, to provide an assurance that the State has adopted
challenging academic content standards and aligned academic achievement
standards that will be used to carry out title I, part A. At the same
time, section 1111(b)(1)(D) of the ESEA requires a State to
``demonstrate'' that those challenging State academic standards are
aligned with entrance requirements for credit-bearing coursework in the
system of public higher education in the State and relevant State
career and technical education standards. Similarly, section
1111(b)(1)(E) of the ESEA, as amended by the ESSA, permits a State to
adopt alternate academic achievement standards but only if those
standards meet specific statutory requirements and section
1111(b)(1)(F) of the ESEA requires a State to ``demonstrate'' that the
State has adopted ELP standards that meet certain statutory
requirements. Moreover, section 1111(b)(2) of the ESEA requires a State
to ``demonstrate'' that it has implemented a set of high-quality
academic assessments in at least mathematics, reading/language arts,
and science. The Department is committed to ensuring that all States
meet the statutory requirements in sections 1111(b)(1) and (b)(2) of
the ESEA, as amended by the ESSA, including through peer review
consistent with section 1111(a)(4).
In order to avoid any confusion that proposed Sec. 299.16(a)(1)
may have raised, the Department is removing the provisions in Sec.
299.16 related to section 1111(b)(1) and replacing them with a general
assurance of compliance with relevant statutory and regulatory
provisions regarding standards and assessments in final Sec.
299.14(c)(2). Because the statutory language is clear, we do not
believe that further regulatory efforts in the consolidated State plan
are necessary other than a general assurance that a State will comply
with the standards and assessment requirements in sections
1111(b)(1)(A)-(F) and 1111(b)(2) of the ESEA, as amended by the ESSA,
and applicable regulations.
Changes: We have removed the requirements in proposed Sec.
299.16(a), (b)(1)-(2), (4)-(5), and (6) and replaced them with an
assurance in Sec. 299.14(c)(2) that the State will meet the standards
and assessments requirements of sections 1111(b)(1)(A)-(F) and
1111(b)(2) of the ESEA, as amended by the ESSA, and applicable
regulations.
Comments: Some commenters praised the coherence of the State plan
regulations, including Sec. 299.16, while other commenters suggested
that the requirements were burdensome and
[[Page 86197]]
recommended removing Sec. 299.16 entirely. A number of commenters
urged the Department to expand local control over standards and
assessments, or generally to reduce the requirements to use
standardized tests. A few commenters suggested that testing should
happen less frequently, such as once in each of several grade spans,
instead of annually.
Discussion: The Department appreciates the diversity of opinions
with regard to the structure of Sec. 299.16. Section 1111(b)(1)(B) of
the ESEA, as amended by the ESSA, requires each State to establish the
challenging academic content and academic achievement standards that
apply to all public schools and public school students in the State,
except in certain narrow circumstances also described in statute.
Section 1111(b)(2) of the ESEA, as amended by the ESSA, enumerates
State responsibilities for statewide academic assessments using the
same assessments, except in certain cases. The statute clearly requires
continued use of statewide academic assessments annually in grades
three through eight and once in high school, regardless of the specific
reference to such responsibilities in this regulation. However, in an
effort to streamline the requirements in this section and reduce burden
for States, the Department is no longer asking each State to describe
in its consolidated State plan each of the requirements previously
proposed in Sec. 299.16 that will be reviewed as part of the peer
review process. States remain responsible for implementing challenging
academic standards and assessments consistent with the statute and
applicable regulations. Additionally, in an effort to reduce the
overall burden associated with submitting the consolidated State plan,
we are removing the required description of how the State will use
formula grant funds under section 1201 of the ESEA, as amended by the
ESSA, and removing this program from the programs included in the
consolidated State plan under Sec. 299.13(j)(2).
Changes: As previously described, we have removed the proposed
requirements in proposed Sec. 299.16(a) and replaced them with an
assurance in final Sec. 299.14(c)(2) that the State will meet the
standards and assessments requirements of sections 1111(b)(1)(A)-(F) of
the ESEA, as amended by the ESSA. Additionally, we have removed the
proposed requirements in Sec. 299.16(b)(1)-(2) and (4)-(5) and
replaced them with an assurance of compliance with section 1111(b)(2)
of the ESEA, as amended by the ESSA, and applicable regulations.
Finally, we removed the proposed requirement in Sec. 299.16(b)(7) to
describe how a State will use formula grant funds awarded under section
1201 of the ESEA, as amended by the ESSA, and have removed this program
from the programs included in the consolidated State plan under Sec.
299.13(j)(2).
Comments: A number of commenters proposed specific changes
regarding the substance of the assessments as required under section
1111(b)(2) of the ESEA, as amended by the ESSA, including by reflecting
on challenges experienced by military students who must adjust to
various State policies and tests; underscoring that alternate
assessments be aligned with grade-level academic content standards for
the grade in which the student is enrolled; proposing that alternate
assessments for students impacted by trauma be created to measure
success in schools that serve large populations of such students;
requesting that States be allowed to assess some students with
significant cognitive disabilities who do not meet the criteria for
students with the most significant cognitive disabilities using
assessments based on academic standards for a grade other than the
student's enrolled grade; proposing that States coordinate with the
Head Start community regarding academic standards; requesting an
assessment pause during the transition to the ESEA, as amended by the
ESSA; suggesting that additional focus be applied to the needs of
students with disabilities and English learners with respect to test
accommodations; asking that ELP not impede English learners from
passing standardized tests required for graduation; emphasizing that
ELP tests should be subject to assessment peer review; requesting that
students receiving instruction primarily in a Native American language
be explicitly allowed to take assessments in that language; urging that
social studies assessments be required; recommending that protections
generally be made clearer for English learners who receive instruction
primarily in a Native American language school or program; and
suggesting that English learners be exempt from taking academic content
assessments if those students are taking ELP assessments.
Discussion: The proposed consolidated State plan requirements in
Sec. Sec. 299.14 and 299.16 address the information and assurances
that a State must submit to the Department in order to receive Federal
funds, including information and assurances regarding a State's
compliance with section 1111(b)(2) of the ESEA, as amended by the ESSA.
In March and April 2016, the Department engaged in negotiated
rulemaking regarding the substance of the assessment requirements,
including how a State complies with section 1111(b)(2) of the ESEA, as
amended by the ESSA. As a result, any comment received in response to
this NPRM regarding assessment requirements that were subject to
negotiated rulemaking are considered outside the scope of these
regulations. The Department will consider any comments on the
assessment regulations received in response to this NPRM when
responding to comments received on the notice of proposed rulemaking
for title I, improving academic achievement of the disadvantaged,
Academic Assessments published in the Federal Register on July 11, 2016
(81 FR 44927) (Assessments NPRM).
Changes: None.
Mathematics Exception for Students in Advanced Courses in Eighth Grade
in States That Use End-of-Course Mathematics Assessments in High School
Comments: A few commenters objected to proposed Sec. 299.16(b)(3),
which would require an SEA to describe its strategies in the
consolidated State plan to provide all students in the State the
opportunity to be prepared for and to take advanced mathematics
coursework in middle school consistent with section 1111(b)(2)(C) of
the ESEA, as amended by the ESSA, and applicable regulations. The
commenters noted that the final consensus-based language from
negotiated rulemaking, on which this proposed requirement was based,
would only require an SEA to describe its strategies if the State
administers end-of-course mathematics assessments to high school
students to meet the requirements under section 1111(b)(2)(B)(v)(I)(bb)
of the ESEA, as amended by the ESSA, and uses the exception for
students in eighth grade to take such assessments under section
1111(b)(2)(C). As written, however, commenters noted that the
requirement would apply to all States.
Discussion: The Department agrees with the commenters. The final
consensus-based language from negotiated rulemaking and the proposed
regulations in the Assessments NPRM would only require an SEA to
describe its strategies to provide all students in the State the
opportunity to be prepared for and to take advanced mathematics
coursework in middle school if the State administers end-of-course
mathematics assessments to high school students to meet the
requirements under section 1111(b)(2)(B)(v)(I)(bb) of the ESEA, as
amended by the ESSA, and uses the
[[Page 86198]]
exception for students in eighth grade to take such assessments under
section 1111(b)(2)(C) of the ESEA, as amended by the ESSA.
Changes: We have revised Sec. 299.16(a) to indicate that an SEA
would only be required to describe its strategies in the consolidated
State plan to provide all students in the State the opportunity to be
prepared for and to take advanced mathematics coursework in middle
school if the State administers end-of-course mathematics assessments
to high school students to meet the requirements under section
1111(b)(2)(B)(v)(I)(bb) of the ESEA, as amended by the ESSA, and uses
the exception for students in eighth grade to take such assessments
under section 1111(b)(2)(C) of the ESEA, as amended by the ESSA.
Section 299.17 Accountability, Support, and Improvement for Schools
Sec. 299.17(b)(8) Including All Public Schools in the State
Accountability System
Comments: A few commenters sought clarification regarding whether a
State may use a different methodology for accountability for schools
serving special populations than the methodology used for all public
schools. One commenter noted that the list of schools for which a State
may describe a different methodology from the methodology used for all
public schools only appeared in the consolidated State plan
requirements and did not appear in the accountability regulations.
Specifically, commenters recommended that a State be able to use a
different methodology for certain accountability indicators for
alternative schools, schools in the juvenile justice system, schools
serving reengaged children and youth, credit-recovery schools, and
schools serving over-age students. Some commenters stated that one such
modification to the methodology would be to identify schools and
require interventions based not on a low four-year graduation rate but
that a State should be able to identify and require interventions in
these types of schools based on an extended-year graduation rate.
Discussion: The Department agrees that it was unclear to include a
list of schools for which a State may use a different methodology for
accountability in the consolidated State plan requirements but not in
the accountability regulations. Placing this list in the consolidated
State plan section gave the incorrect impression that a State might not
be able to use a different methodology to identify schools for support
and improvement that serve special populations of students if it
completed an individual title I, part A State plan. We intended to
permit a State to use a different methodology for specific types of
schools, regardless of whether it submits a consolidated State plan or
an individual title I, part A State plan. See the previous discussion
regarding Other Requirements in Annual Meaningful Differentiation of
Schools in this preamble for a discussion of changes to the types of
schools included in the list.
Changes: We have revised Sec. 299.17 by removing from the
consolidated State plan requirements the list of schools for which an
SEA may describe an accountability methodology that is different from
its statewide methodology. We have included the list of schools in the
final regulation at Sec. 200.18(d)(1)(iii) within the context of a
State's system of annual meaningful differentiation.
Sec. 299.17(d) and (e)--Burden Reduction
Comments: A number of commenters generally objected to the volume
of proposed consolidated State plan requirements, including those
requirements in proposed Sec. 299.17(d) and (e). Some commenters
contest whether such requirements were absolutely necessary for the
consideration of the consolidated State plan.
Discussion: The Department agrees that some of the requirements
within and across the consolidated State plan regulations can be
further streamlined. In an effort to reduce burden across all of the
consolidated State plan requirements, we reconsidered which of the
proposed descriptions were absolutely necessary for ensuring each State
is in compliance with the statute and applicable regulations. Given
that accountability systems under the ESEA, as amended by the ESSA,
will be significantly different from accountability systems under the
ESEA, as amended by NCLB, we are preserving many of the consolidated
State plan requirements regarding each State's new accountability
system under the ESEA, as amended by the ESSA. In examining the
proposed requirements related to State support and improvement and
performance management and technical assistance for low-performing
schools, we are streamlining the required descriptions and converting
one proposed description into a required assurance. Under proposed
Sec. 299.17(e)(3), an SEA was asked to describe additional improvement
actions the State may take in an LEA with a significant number of
identified schools. This description is similar to the description
required under proposed Sec. 299.17(e)(2) regarding technical
assistance to LEAs with a significant number of identified schools.
This description may have also overlapped with an SEA response to
proposed Sec. 299.17(d)(5) in which a State would identify other
strategies to improve low-performing schools. An SEA could include a
description of additional improvement actions or other strategies to
improve low-performing schools in its description of technical
assistance. Therefore, we are consolidating the descriptions related to
these provisions into a single required description. We believe that
the response an SEA might have provided in the proposed descriptions at
Sec. Sec. 299.17(e)(2) and (d)(5) may be captured in the remaining
required descriptions. In addition, to further reduce burden in this
component of the consolidated State plan, we converted the proposed
description in Sec. 299.17(e)(1) to an assurance in the new
consolidated State plan assurance section in Sec. 299.14. Final Sec.
299.14(c)(3) requires each SEA to assure that it will approve, monitor,
and periodically review LEA comprehensive support and improvement plans
consistent with requirements in section 1111(d)(1)(B)(v) and (vi) of
the ESEA and Sec. 200.21(e). The Department believes this assurance is
absolutely necessary for the consideration of consolidated State plans
to ensure compliance with statutory requirements under section
1111(d)(1) of the ESEA, as amended by the ESSA.
Changes: We have revised Sec. 299.17 by deleting proposed (d)(5)
and (e)(2).
Cross-Cutting Changes
Comments: A few commenters recommended we strike or amend specific
consolidated State plan requirements because they objected to the
requirements, or they had suggested changes to the accountability
requirements, which would necessitate conforming changes to the State
plan requirements. Commenters recommended that we strike or amend
consolidated State plan requirements related to, for example, summative
ratings, comprehensive support and improvement plans, and the needs
assessment.
Discussion: Each State plan requirement on accountability directly
relates to the accountability requirements as described in the ESEA, as
amended by the ESSA, and in the regulations. In response to comments,
we have made a change or declined to make changes to the
accountability, support, and improvement requirements
[[Page 86199]]
as described in the sections of this preamble under Sec. Sec. 200.12
through 200.24. When an accountability requirement changed, we made a
corresponding change to the consolidated State plan requirement, as
described in Sec. 299.17. For a discussion of comments related to the
summative rating, see discussion under the section titled Summative
Ratings; for a discussion of comments related to targeted support and
improvement plans, see the discussion under the section titled
Comprehensive and Targeted Support and Improvement Plans: In General;
and for a discussion of comments related to needs assessments, see the
discussion under the section titled Needs Assessment: Comprehensive
Support and Improvement.
Changes: We have revised the consolidated State plan requirements
related to accountability, support, and improvement for schools in
Sec. Sec. 299.17(b)(3)(ii), (b)(5)(i), (b)(5)(ii), (b)(5)(iii),
(b)(5)(iv), (b)(7), (b)(8), (c)(3), (c)(4), (c)(5), (d)(2), (d)(4), and
(d)(5) to conform with changes made in these final regulations.
Comments: None.
Discussion: In the course of reviewing the proposed regulations,
the Department identified opportunities to clarify the regulations and
strengthen the connections between the accountability regulations and
the consolidated State plan requirements related to accountability.
Therefore, we are clarifying multiple requirements in the
accountability section of the consolidated State plan. There are two
types of clarifications: (1) Adding or modifying a citation to align to
the corresponding accountability requirement; and (2) modifying
language to align with the accountability requirement and specify what
would be requested in a consolidated State plan.
Changes: We have revised Sec. 299.17(b)(1), (b)(3)(i),(b)(3)(ii),
(d)(1), (d)(2), (d)(4) to ensure the consolidated State plan
requirements align with the requirements in the final accountability
regulations.
Section 299.18 Supporting Excellent Educators
Sec. 299.18(a) Systems of Educator Development, Retention, and
Advancement
Comments: Multiple commenters expressed support for Sec. 299.18(a)
regarding a comprehensive approach to systems of educator development,
retention, and advancement. Commenters also recommended a variety of
changes, including the addition of teachers of students with
disabilities and early childhood educators to Sec. 299.18(a)(2), an
emphasis on evidence-based strategies'' where appropriate, and
replacing the word ``adequate'' in Sec. 299.18(a)(2) with the term
``high-quality.'' Another commenter advised the Department to clarify
that each SEA should describe the efforts it is making in regard to
each of the requirements in Sec. 299.18(a), in addition to describing
how it is ensuring that each LEA implements a comprehensive system of
professional growth and improvement for educators that encompasses
these efforts. Finally, one commenter asserted that the inclusion of
State plan requirements related to systems of professional growth and
improvement is not consistent with the statute and exceeds the
Department's statutory authority.
Discussion: The Department appreciates commenters' general support
for the requirements in proposed Sec. 299.18(a), as well as their
recommendations for strengthening the final regulations. However,
because State systems and strategies for educator development,
retention, and advancement may vary substantially, the Department
declines to expand the requirements in this area. In addition, we
anticipate that in response to State and local needs and circumstances
many SEAs will, for example, address additional categories of educators
or include evidence-based strategies in their plans. We also note that
on September 27, 2016, the Department recently published non-regulatory
guidance for title II, part A: Building Systems of Support for
Excellent Teaching and Leading available at: http://www2.ed.gov/policy/elsec/leg/essa/essatitleiipartaguidance.pdf (Title II, Part A
Guidance). Furthermore, the Department will consider additional
guidance and technical assistance regarding how SEAs can help ensure
that their systems of educator development, retention, and advancement
are supporting all educators.
We agree with the commenter's concern that the term ``adequate
preparation'' was insufficiently rigorous, and are revising Sec.
299.18(a)(2) to better reflect our expectations for educator
preparation programs, including by clarifying that the description
should describe State strategies to improve teacher preparation
programs rather than a system of preparation.
As noted in the regulatory language itself, we believe that
proposed Sec. 299.18(a) is consistent with sections 2101 and 2102 of
the ESEA, as amended by the ESSA, and is not outside of the
Department's statutory authority in section 8302 of the ESEA, as
amended by the ESSA, to establish the process and criteria for
submitting a consolidated State plan. Additionally, given that the
Secretary has general rulemaking authority under GEPA and DEOA, it is
not necessary for the ESEA, as amended by the ESSA, to specifically
authorize the Secretary to issue a particular regulatory provision.
However, we agree that it is important for the final regulations to be
clear about where uses of funds were permissive, rather than mandatory.
For this reason and in response to the comments regarding the overall
burden associated with submitting a consolidated State plan, we are
revising the language in Sec. 299.18(a) to provide that the required
descriptions are applicable only to SEAs who intend to use funds under
one or more of the covered programs for the activities in Sec.
299.18(a)(1)-(3). Additionally, we are revising Sec. 299.18(a)(3) to
further clarify that an SEA is permitted, but not required, to include
a description of how it will work with LEAs in the State to develop or
implement State or local teacher, principal, or other school leader
evaluation and support systems.
Changes: We have revised Sec. 299.18(a) to clarify that it applies
to each SEA that intends to use funds under one or more of the included
programs for the activities in Sec. 299.18(a)(1)-(3). We have revised
Sec. 299.18(a)(2) to reflect that we expect State plans to include
strategies to improve educator preparation programs. Finally, we have
revised Sec. 299.18(a)(3) to clarify that an SEA's plan may, but is
not required to, include a description of how it will work with LEAs in
the State to develop or implement State or local teacher, principal, or
other school leader evaluation and support systems.
Comments: Multiple commenters recommended adding requirements
related to teacher certification and preparation, including how SEAs
will ensure that all teachers and paraprofessionals working in title I
programs meet applicable State certification and licensure
requirements, incorporating teacher certification into the educator
equity requirements in Sec. 299.18(c), clarifying the definition of
certification, requiring specific coursework in teacher preparation
programs, reporting on teacher preparation programs, and publicly
reporting the demographics of certified teachers.
Discussion: We appreciate commenters' interest in clarifying and
[[Page 86200]]
strengthening requirements related to teacher certification and
preparation in the final regulations. However, the ESEA, as amended by
the ESSA, recognizes State discretion in determining requirements and
definitions related to teacher preparation and certification, and we
decline to limit that discretion in these final regulations.
We also note that requirements related to teacher preparation
programs generally are governed by the Higher Education Act of 1965, as
amended (HEA), rather than the ESEA. The Department recently finalized
regulations regarding teacher preparation under, available at: http://www.ed.gov/news/press-releases/education-department-releases-final-teacher-preparation-regulations.
Changes: None.
Comments: A number of commenters recommended clarifying in Sec.
299.18 that professional development in the consolidated State plan
should be consistent with the definition provided in section 8101(42)
of the ESEA, as amended by the ESSA. Commenters also urged the
Department to add guardrails around the rigor or professional
development provided by LEAs, to link teacher and leader development to
school improvement strategies in State plans, and to promote measuring
the quality of professional development as part of statewide
accountability systems. Other commenters encouraged the Department to
promote a wide range of particular professional development activities
in the final regulations; including, for example, an emphasis on
bilingual instruction, involving the Committee of Practitioners in
setting priorities for professional development, and training on the
use of strategies to create safe, healthy, and affirming school
environments.
Discussion: We agree that the final regulations would be
strengthened by incorporating the definition of professional
development in section 8101(42) of the ESEA, as amended by the ESSA,
and are revising Sec. 299.18(a)(3) accordingly. However, because we
believe that specific decisions regarding the design and implementation
of professional development and learning opportunities are best made at
the State and local level, we decline to highlight particular types of
professional development or related activities in the final
regulations. We further note that the Department issued non-regulatory
Title II, Part A Guidance on the use of title II, part A funds that
addresses some of the concerns expressed by commenters.
Changes: We have revised Sec. 299.18(a)(3) to incorporate the
definition of ``professional development'' in section 8101(42) of the
ESEA, as amended by the ESSA.
Comment: One commenter recommended adding a requirement for an SEA
to describe how it will use title II, part A funds and English learner
set-aside funds to develop teachers to lead bilingual and dual language
classrooms.
Discussion: We appreciate the suggestion to add a description
regarding how an SEA will use funds to develop teachers to lead
bilingual and dual language classrooms. As written, the regulations
provide an SEA with flexibility to describe how it will use funds to
meet the purpose of title II, part A of the ESEA, as amended by the
ESSA, which could include developing teachers to lead bilingual and
dual language classrooms. Because of the general comments regarding
reducing burden on SEAs submitting a consolidated State plan, we
decline to prescribe this as a requirement for all SEAs.
Changes: None.
Sec. 299.18(b) Support for Educators
Comments: A number of commenters expressed support for the
provisions in Sec. 299.18(b) aimed at improving instruction by
increasing the number of effective teachers and school leaders.
Commenters also recommended the inclusion of strategies to improve
educators' capacity to create safe and inclusive school environments
and to address the impact of adversity and stress on students'
readiness to learn. Other commenters requested a stronger emphasis on
evidence-based strategies. One commenter urged the Department to
maintain the proposed language under Sec. 299.18(b) to ensure that
each State describes how it will work with LEAs to develop or implement
teacher, principal, and other school leader evaluation and support
systems. One commenter also recommended that the strategies in Sec.
299.18(b)(1)(iv) be designed to provide low-income and minority
students with ``equitable'' rather than ``greater'' access to effective
teachers, principals, and other school leaders. Finally, one commenter
requested clarification that the use of Federal funds to improve
educator evaluation systems is allowable, rather than required.
Discussion: We appreciate the general support for the proposed
consolidated State plan requirements related to improving support for
educators. However, we believe that States should have significant
discretion in determining the specific focus of their efforts to
support educators and we decline to include the additional requirements
suggested by commenters. We also appreciate the lack of a robust
evidence base in the area of professional development, a factor that
could make new evidence requirements in this area both burdensome and
ineffectual. We believe that providing ``greater'' access to effective
educators is consistent with the statutory purpose of title II in
section 2001 of the ESEA, as amended by the ESSA, and we note that
proposed Sec. 299.18(b)(2)(ii) is clear that an SEA must describe
efforts to support LEAs in developing or implementing educator
evaluation systems only if Federal funds are used for this purpose.
However, consistent with commenters' suggestions to clarify the
connection between Federal funds and certain activities, we have moved
the requirements that were originally found at proposed Sec.
299.18(b)(ii) and (iii) to Sec. 299.18(a)(3), where it is clear that
such activities must be included in State plans only to the extent that
they are supported with Federal funds.
Changes: We have revised the final regulations by moving the
provisions in proposed 299.18(b)(2)(ii) and (iii) regarding educator
evaluation and support systems and educator preparation programs,
respectively, to Sec. 299.18(a)(3).
Comments: Several commenters suggested that we revise proposed
Sec. 299.18(b)(1)(iv) to add students with disabilities to the groups
for which SEAs must describe strategies for providing greater access to
effective teachers, principals, and other school leaders; other
commenters recommended including the full list of underserved subgroups
of students addressed by the ESEA, as amended by the ESSA.
Discussion: The Department agrees that all students should have
access to effective teachers, principals, and other school leaders.
However, Sec. 299.18(b)(1)(iv) is based on section 2001 of the ESEA,
as amended by the ESSA, which focuses teacher equity requirements on
low-income and minority students. We also note that many, if not most,
of the students in the other subgroups mentioned by commenters also are
low-income and minority students. For these reasons, and because adding
subgroups of students beyond those specified by the statute would add
considerable burden to the State plan requirements, we decline to
include additional subgroups of students in the final regulations.
However, we note that the regulations provide an SEA with the
discretion to specifically highlight specific subgroups
[[Page 86201]]
of students including students with disabilities, English Learners,
migratory children, and children and youth in foster care.
Changes: None.
Comments: A number of commenters recommended expanding the list of
subgroups of students in proposed Sec. 299.18(b)(2)(i) for which an
SEA must describe how it will improve the skills of teachers,
principals, and other school leaders in identifying students with
specific learning needs in order to improve instruction based on those
needs. However, two commenters recommended limiting the list of
subgroups to those described in section 2101(d)(2)(J) of the ESEA, as
amended by the ESSA: Children with disabilities, English learners,
students who are gifted and talented, and students with low literacy
levels. Other commenters stated that the requirement in proposed Sec.
299.18(b)(2)(i) was unnecessary and overly burdensome.
Discussion: We appreciate the different perspectives provided by
the commenters. After weighing these perspectives, and, in particular,
in recognition of potential burden of requiring SEAs to address a
large, one-size-fits-all list of subgroups of students in describing
their plans for improving the skills of teachers and leaders, we are
removing the list of student subgroups from this section of the final
regulations. We believe States should have flexibility, in developing
their consolidated State plans, to determine the subgroups of students
with the greatest need for specialized instruction and related school
leadership.
Changes: We have revised Sec. 299.18(b)(2)(i) by removing the list
of specific subgroups of students.
Comments: Several commenters requested that we specify subgroups of
teachers and related personnel that an SEA must address in its work to
support excellent educators, including early childhood educators;
educators in mediums of instruction other than English; community-based
educators, such as elders or native and cultural artisans and
practitioners; and National Board Certified Teachers. One commenter
noted the importance of including specialized instructional support
personnel in State systems of professional growth and improvement.
Discussion: While the Department recognizes the value of a diverse
education workforce, we decline to prescribe subgroups of educators
that an SEA must address in its work to support excellent educators.
The proposed regulations require an SEA describe its strategies to
support teachers, principals and other school leaders and permit an SEA
to include educators such as early childhood educators, community-based
educators, educators in mediums of instruction other than English, and
SISPs, when discussing its strategies to support educators in its
State. The consolidated State plan requirements are consistent with
sections 2101 and 2102 of the ESEA, as amended by the ESSA. An SEA may,
at its discretion and in response to State and local needs, include
other educators in its consolidated State plan, but we decline to add
additional requirements in this area.
Changes: None.
Comments: One commenter recommended that the use of the term
``school leader'' align with the definition of school leader in section
8101(44) of the ESEA, as amended by the ESSA. Another commenter
suggested using the word ``and'' instead of ``or'' when referring to
``teachers and principals or other school leaders.'' Another commenter
recommended that we revise Sec. 299.18(a)(2) to clarify that teachers,
principals, and other school leaders are included in the State's system
to ensure adequate preparation of new educators.
Discussion: We agree that the phrase ``teachers, principals, and
other school leaders'' better captures the role of teachers and other
school leaders. Therefore, with the exception of Sec. 299.18(b)(2)
which directly incorporates the statutory requirement in section
2101(d)(2)(J), we are revising the final regulations to incorporate the
phrase ``teachers, principals, and other school leaders'' consistently
throughout Sec. 299.18(b). Additionally, we note that school leaders
is defined in section 8101(44) of the ESEA, as amended by the ESSA, to
include both principals and other types of school leaders. Moreover, we
believe it is unnecessary to further specify in Sec. 299.18(a)(2) that
the preparation programs address teachers, principals, and other school
leaders because the requirement to describe educator preparation
programs includes such individuals.
Changes: We have revised Sec. 299.18(b)(1) to refer to ``teachers,
principals, and other school leaders.''
Educator Evaluation
Comments: A number of commenters stated that teacher evaluations
should not be tied to student test scores. Other commenters expressed
their support for ending the requirement to link evaluation and test
scores. A few commenters expressed support for continuing to provide
teachers with fair evaluations, using test scores, and improving
teacher assessments.
Discussion: The final regulations, like the proposed regulations,
do not include any requirements related to the use of student
assessment results in educator evaluation systems. However, the
Department released non-regulatory Title II, Part A Guidance that
clarifies the statutory requirements for educator evaluation systems
that are supported by title II, part A funds including the requirements
in sections 2101(c)(4)(B)(ii) and 2103(b)(3)(A) of the ESEA, as amended
by the ESSA, that such systems be based in part on evidence of student
achievement, which may include student growth; include multiple
measures of educator performance, such as high-quality classroom
observations; and provide clear, timely and useful feedback to
educators.
Changes: None.
Section 299.18(c) Educator Equity
Comments: Many commenters expressed support for the requirements in
Sec. 299.18(c) regarding educator equity. In particular, commenters
appreciated the inclusion of the educator equity provisions within the
consolidated State plan, the definitions of teacher quality indicators
in Sec. 299.18(c) and Sec. 200.37, and the clarification of the
State's authority to ensure that title II, part A funds are used to
address inequities.
Discussion: The Department appreciates the expressions of support
from commenters.
Changes: None.
Comment: One commenter noted the impact that an effective school
leader can have on the effectiveness, satisfaction, and retention of
teachers. The commenter suggested that we revise the educator equity
regulations in Sec. 299.18(c) to include language that would allow,
but not require, an SEA to track the equitable distribution of
effective and experienced principals and school leaders.
Discussion: The educator equity requirements in Sec. 299.18(c)
require an SEA to describe whether low-income and minority students are
taught at different rates by ineffective, out-of-field, or
inexperienced teachers consistent with sections 1111(g)(1)(B) of the
ESEA, as amended by the ESSA. We believe further revisions to Sec.
299.18(c)(2) are unnecessary because under Sec. 299.18(c)(2)(vi), an
SEA may, at its discretion and in response to State and local needs,
include other educators in this description by identifying other
definitions and key terms it will use for the purpose of meeting this
requirement.
Changes: None.
[[Page 86202]]
Comments: One commenter advised that the Department's use of the
term ``demonstrate'' in place of the statutory term ``describe'' in
proposed Sec. 299.18(c) represented a higher standard of review for
the consolidated State plan, and therefore increased the burden
associated with the consolidated State plan, as compared to individual
program plans.
Discussion: The Department appreciates the commenter's concern and
is modifying the text of this section to align with the statutory terms
in section 1111(g)(1)(B) of the ESEA, as amended by the ESSA. In
response to the comment regarding the burden associated with meeting
this consolidated State plan requirement, we note that Sec.
299.13(k)(1)(i) requires an SEA that files an individual title I, part
A State plan to provide the same description that is required under
Sec. 299.18(c). Therefore, the burden associated with meeting the
requirements of section 1111(g)(1)(B) is the same whether an SEA
submits a consolidated State plan or an individual title I, part A
State plan under Sec. 299.13(k).
Changes: We have revised Sec. 299.18(c)(1) and (3) by replacing
the term ``demonstrate'' with the term ``describe.''
Comments: A number of commenters requested explicit definitions and
clear guidelines around the terms ``disproportionality'' and
``disproportionate rates'' in the final regulations, with some
commenters recommending that the Department include this information in
Sec. 200.37 and incorporate it by reference in Sec. 299.18(c)(2)(vi).
Other commenters specifically recommended defining disproportionality
as any non-zero difference between the rates at which student subgroups
are served by ineffective, inexperienced, or out-of-field teachers.
Discussion: We agree that without additional clarification, it
would be difficult for SEAs to ensure they are meeting the requirements
of Sec. 299.18(c)(1); for this reason we are revising the final
regulations to make clear that throughout Sec. 299.18(c),
``disproportionality'' refers to the ``differences in rates.'' We are
also revising Sec. 299.18(c)(5), as renumbered in the final
regulations, to clarify that different rates mean higher rates, defined
as greater than zero.
Changes: We have revised Sec. 299.18(c) to clarify that
disproportionality refers to the ``differences in rates.'' We have also
renumbered and revised Sec. 299.18(c)(5) to define disproportionate
rates as higher rates, defined as greater than zero.
Section 299.18(c)(2) Educator Equity Definitions
Comments: Some commenters supported having a definition of
``ineffective teacher'' and provided suggestions for ways to strengthen
the definition. However, several commenters asked that the Department
remove the requirement that an SEA establish a statewide definition of
ineffective teacher. Some of these commenters indicated that requiring
a definition would result in Federal interference with evaluation
systems. Other commenters raised concerns that requiring the definition
would violate statutory prohibitions regarding teacher evaluation
systems.
Discussion: Section 1111(g)(1)(B) and (2)(A) of the ESEA, as
amended by the ESSA, requires each SEA to describe how low-income and
minority children enrolled in title I schools are not served at
disproportionate rates by, among other teachers, ``ineffective
teachers'' and to make public the methods or criteria the State is
using to measure teacher effectiveness for the purpose of meeting this
educator equity requirement. The requirements that an SEA provide its
definition of ``ineffective teacher,'' or its guidelines for LEA
definitions of ``ineffective teacher,'' and that the definition or
guidelines differentiate between categories of teachers and provide
useful information about educator equity, are essential for ensuring
compliance with this statutory requirement. Without a definition or
guidelines for local definitions of ``ineffective teachers,'' the
related data, inequities, and strategies to address inequities
described by an SEA would be meaningless to the public and to policy
makers. Accordingly, these requirements constitute a proper exercise of
the Department's rulemaking authority under GEPA, the DEOA, and section
8302 of the ESEA, as amended by the ESSA. With respect to comments that
this requirement violates specific provisions of the statute, section
1111(e)(1)(B)(iii)(IX) and (X) of the ESEA, as amended by the ESSA,
provides that ``nothing in this Act shall be construed to authorize or
permit the Secretary . . . to prescribe (IX) any aspect or parameter of
a teacher, principal, or other school leader evaluation system within a
State or LEA, or (X) indicators or specific measures of teacher,
principal, or other school leader effectiveness or quality.'' However,
requiring a statewide definition of, or statewide guidelines for LEA
definitions of, ``ineffective teacher'' in no way constitutes
prescribing an aspect or parameter of an evaluation system, nor the
indicators or specific measures of effectiveness or quality.
With respect to the specific suggestions regarding what should be
addressed in the definitions of ``ineffective,'' we believe that the
regulations appropriately ensure that these definitions are developed
at the State and local level. We further note that the final
regulations ensure that each SEA determine and make public a
definition, or provide statewide guidelines to its LEAs to determine a
definition of ``ineffective.'' Local context and discretion is
important, and we believe it is critical that States and districts are
the ones to define the term ``ineffective.'' Therefore, we decline to
include these recommendations in the regulations.
Changes: None.
Comments: Several commenters recommended changes to the
requirements in the proposed regulations for defining an ``out-of-
field'' teacher, including aligning those requirements with the
definition used in Sec. 200.37, creating a uniform definition that all
States must use, and providing flexibility for States to adopt a
definition that differs from that used for Sec. 200.37.
Discussion: We note that the requirements for defining an ``out-of-
field teacher'' in Sec. 299.18(c)(2)(ii) are aligned with requirements
of Sec. 200.37 in both the proposed and final regulations. We further
note that while there may be some benefits to a uniform definition that
is comparable across all States and districts, we believe that SEAs
should have flexibility to develop a statewide definition that reflects
State and local needs and circumstances. However, we are concerned that
permitting different definitions under Sec. Sec. 200.37 and 299.18
could result in masking the number of ``out-of-field'' teachers that
are teaching in high-need subjects and schools with chronic teacher
shortages, increasing data collection and reporting burdens for SEAs
and LEAs, and reducing transparency for educators and the public alike.
Changes: None.
Comments: A number of commenters recommended specific definitions
of ``inexperienced teacher'' in Sec. 299.18(c)(2)(iii), including
alignment with the requirements of Sec. 200.37 and uniformity across a
State.
Discussion: Similar to the requirements for defining an ``out-of-
field'' teacher, we note that the requirements for defining an
``inexperienced'' teacher in
[[Page 86203]]
Sec. 299.18(c)(2)(iii) are aligned with the requirements of Sec.
200.37 in both the proposed and final regulations. While we appreciate
the specific definitions recommended by commenters, we believe that
SEAs should have flexibility to develop or adopt definitions that
reflect State and local needs and circumstances. We agree with
commenters that further guidance on the definitions required by Sec.
299.18(c) may be helpful and will consider providing such guidance at a
future time.
Changes: None.
Comments: None.
Discussion: After review of proposed Sec. 299.18(c)(2), which
required the educator equity definitions ``to provide useful
information about educator equity and disproportionality rates,'' we
determined that the placement of the phrase was too broad and
potentially confusing to SEAs. As a result, we are clarifying that the
phrase ``to provide useful information about educator equity and
disproportionality rates'' was only intended to apply to the three
teacher characteristics.
Changes: We have revised Sec. 299.18(c)(2)(i)-(iii) by adding the
phrase ``and provides useful information about educator equity'' to all
three required teacher characteristic definitions.
Comments: Several commenters supported the use of ``distinct
criteria'' in establishing the definitions required by Sec.
299.18(c)(2), with some commenters also recommending various options
for strengthening this requirement, including, for example, limiting
the measures that may be used to define each term or allowing
definitions to share certain criteria.
Discussion: We appreciate the support of commenters, as well as
their interest in strengthening the final regulations. However, we note
that section 1111(e)(1)(B)(iii)(X) of the ESEA, as amended by the ESSA,
prohibits the Secretary from prescribing indicators or specific
measures of teacher, principal, or other school leader effectiveness or
quality. In light of this prohibition, we decline to further specify or
limit the measures that may be used by an SEA in establishing the
definitions required by Sec. 299.18(c)(2).
We further clarify that the regulations are intended to ensure that
each definition is be wholly unique and based on entirely different
criteria. That is, an SEA may not use part of any definition for each
of the terms ``ineffective,'' ``inexperienced,'' or ``out-of-field'' in
defining each of the other terms. We believe that this requirement is
necessary and appropriate to ensure that each of these terms is defined
in a manner that reflects the statutory intent of providing three
unique pieces of information on teacher characteristics related to
ensuring equitable access to effective teaching. Additionally, allowing
an SEA to use a part of a definition for one particular term in the
definition of another term is likely to impact the ability of the data
to provide useful information about educator equity.
Changes: None.
Comments: A number of commenters recommended that we revise the
proposed regulation in Sec. 299.18(c), which requires SEAs to
determine the differences in rates at which low-income and minority
students are taught by ineffective, out-of-field, or inexperienced
teachers, to include additional student subgroups, including children
with disabilities, English learners, and rural students. One commenter
recommended that we also revise Sec. 299.18(c)(3)(ii), which permits
an SEA to calculate and report the rates at which students represented
by other key terms are taught by ineffective, out-of-field, and
inexperienced teachers, to clarify that ``students represented by any
other key terms'' may include children with disabilities, English
learners, and rural students.
Discussion: The Department recognizes that, in some cases, other
subgroups of students are being taught at disproportionate rates by
ineffective, out-of-field, or inexperienced teachers, and Sec.
299.18(c)(2)(vi) and (3)(ii) permit an SEA to include other subgroups
of students when calculating such rates. However, requiring, rather
than permitting, such analyses for other subgroups of students would
not be consistent with section 1111(g)(1)(B) of the ESEA, as amended by
the ESSA, which focuses solely on low-income and minority children.
Changes: None.
Section 299.18(c)(3) Educator Equity Rates and Student-Level Data
Requirement
Comments: Some commenters expressed general support for student-
level data requirements in proposed Sec. 299.18(c)(3)(i) to report the
rates described in Sec. 299.18(c)(1) ``based on student-level data.''
Commenters stressed the importance of evaluating within-school
inequities in students' access to effective teaching, in addition to
between school inequities, and that such an analysis requires the
collection of student-level data. However, a few commenters suggested
removing the student-level data requirement stating that the
requirement is burdensome and not justified in the ESEA, as amended by
the ESSA. Commenters also requested clarification on what constitutes
student-level analysis.
Discussion: We appreciate commenters' support for requiring the
collection and reporting of student-level data to meet the educator
equity requirements of section 1111(g)(1)(B) of the ESEA, as amended by
the ESSA. Student-level data are necessary to evaluate inequities
within schools and to determine the relationship between specific
student and teacher characteristics.
One study \29\ examined how a sample of districts with high low-
income, minority populations implemented policies for distributing
effective teachers equitably. This two-year study found that a low-
income student was more than twice as likely to have a less effective
teacher as a higher income peer, and 66 percent more likely to have a
less effective math teacher. The patterns were even more pronounced for
students of color, with Latino and African-American students two to
three times more likely (in math and reading/language arts,
respectively) to have bottom-quartile teachers than their white and
Asian peers.
---------------------------------------------------------------------------
\29\ Learning Denied: The Case for Equitable Access to Effective
Teaching in California's Largest School District. Oakland, CA: The
Education Trust West, 2012. http://edtrust.org/wp-content/uploads/2013/10/ETW-Learning-Denied-Report_0.pdf.
---------------------------------------------------------------------------
Another multi-site, multi-year study \30\ conducted by RAND
Corporation found that when policies for distributing effective
teachers equitably were implemented in a sample of districts with high
low-income minority (LIM) populations, effective teachers were
generally more likely to be assigned to those schools with higher
proportions of low-income and minority students than other schools,
but, within a school, effective teachers were generally less likely to
be assigned to classes with higher proportions of low-income minority
students than to other classes. That is, the most-effective teachers
were placed in schools with high percentages of low-income minority
students, but they were not placed in high-LIM classrooms within those
schools. This suggests that improving low-income minority students'
access to effective teachers requires efforts to ensure within-school
access to effective teachers in addition to between-school access.
---------------------------------------------------------------------------
\30\ Baird, Matthew D., John Engberg, Gerald Hunter and Benjamin
Master. Trends in Access to Effective Teaching: The Intensive
Partnerships for Effective Teaching Through 2013-2014. Santa Monica,
CA: RAND Corporation, 2016. http://www.rand.org/pubs/research_briefs/RB9907.html.
---------------------------------------------------------------------------
[[Page 86204]]
Though some commenters suggested removing the student-level data
requirement altogether, the Department has determined that requiring
student-level data is not only justified, but indeed, necessary to
ensure compliance with the statutory requirement in section
1111(g)(1)(B) of the ESEA, as amended by the ESSA, that an SEA describe
how low-income and minority children enrolled in schools assisted under
title I, part A are not served at disproportionate rates than other
children in the State by ineffective, out-of-field and inexperienced
teachers. Because the required analysis is of the rates at which
particular groups of children are served by teachers, and not the rates
at which particular schools are served by teachers, requiring SEAs to
use student-level data to inform the required description in order to
ensure that they meet the statutory requirement constitutes a proper
exercise of the Department's rulemaking authority.
We appreciate commenters' suggestions regarding clarification of
how to implement the student-level data requirement and note that the
Department plans to provide technical assistance and other support in
this area, building in part on best practices from States already
collecting and reporting student-level data.
Changes: None.
Comments: A few commenters recommended aligning the language in the
requirement in Sec. 299.18(c)(3)(ii) regarding the use of student-
level data by SEAs who choose to examine differences in rates for other
student groups, with the student-level data requirement in Sec.
299.18(c)(3)(i) for required student groups.
Discussion: We decline to align the language because section
1111(g)(1)(B) only requires an SEA to provide educator equity data for
low-income and minority students. If an SEA chooses to examine
differences in rates for other student groups, an SEA has flexibility
in determining the level of data to use in that analysis.
Changes: None.
Comments: Some commenters questioned whether the student-level data
requirement, including the option of a two-year extension for the
reporting of student-level data under proposed Sec. 299.13(d)(3),
conflicts with section 2104(a) of the ESEA, as amended by the ESSA,
which prohibits the Department from requiring the collection and
reporting of any data on the retention rates of effective teachers that
was not available on the day before ESSA was enacted.
Discussion: We do not believe that the proposed regulations
implementing section 1111(g)(1)(B) of the ESEA, as amended by the ESSA,
conflict with section 2104(a) of the ESEA. More specifically, the rule
of construction in section 2104(a)(4) of the ESEA, as amended by the
ESSA, which limits the collection of data on the retention rates of
ineffective and effective teachers to data elements collected prior to
enactment of the ESSA, applies only to the title II, part A, reporting
requirement regarding teacher retention, and there is no similar rule
applicable to section 1111(g)(1)(B) of the ESEA, as amended by the
ESSA.
Changes: None.
Comments: Several commenters expressed that the proposed comparison
of rates--between low-income and minority students enrolled in schools
receiving title I, part A funds and non-low-income and non-minority
students enrolled in schools not receiving title I, part A funds--would
yield little useful information in a State where the majority of
schools receive title I, part A funds. Some commenters also asserted
that the statutory language requires that low-income students and
minority students at schools receiving title I, part A funds be
compared to all non-low-income students and non-minority students at
any school, regardless of that school's receipt or non-receipt of title
I, part A funds, and recommended revising the final regulations
consistent with this interpretation of the statute. Other commenters
cited what they described as the inconsistency of proposed in Sec.
299.18(c) with the report card requirement in Sec. 200.37, which calls
for disaggregation of teacher qualification data between high- and low-
poverty schools. Similarly, one commenter suggested revising the
proposed comparison groups to focus on high- and low-poverty schools
(using the Sec. 200.37 definition) and high- and low-minority schools
(defined as schools in the top and bottom quartile for minority student
enrollment). Finally, several commenters expressed concern that the
proposed comparison groups would not help identify or address between-
school or within-school inequities.
Discussion: Section 1111(g)(1)(B) of the ESEA, as amended by the
ESSA, specifically requires that SEAs describe how low-income and
minority children ``enrolled in schools assisted under this part'' are
not served at disproportionate rates by certain teachers. Based on this
language, we proposed comparison groups that we believe will be most
likely to illuminate inequities with respect to the students identified
by the statute. Although we appreciate the difficulties of making this
comparison in a State or an LEA in which the majority of schools
receive title I, part A funds, we believe that an alternative
comparison group comprised of all schools in the State would be
inconsistent with the statutory language prescribing the groups of
students for whom disproportionate rates must be described. Further,
such a comparison group would mask the differences in rates at which
low-income and minority students enrolled in schools receiving title I,
part A funds and their peers are taught by certain teachers. Requiring
a comparison between high-poverty and low-poverty schools identified
for purposes of compliance with Sec. 200.37 would likewise be
inconsistent with the statutory requirement in section 1111(g)(1)(B) of
the ESEA, as amended by the ESSA, because a State's high-poverty school
quartile does not necessarily include all of a State's title I, part A
schools. Accordingly, we have maintained the proposed comparison groups
in these final regulations.
With respect to commenters' concern that the selected comparison
group would not sufficiently illuminate between-school or within-school
inequities, as discussed above in the Student-level Data Requirement
discussion and below in the Section 299.18(c)(5) Causes of and
Strategies to Address Differences in Educator Equity Rates discussion,
we have retained the student-level data requirement in Sec.
299.18(c)(3)(i) and amended Sec. 299.18(c)(5)(i) to replace root cause
analysis with ``likely causes'' including an analysis of within-school
differences in rates to ensure that between-school or within-school
inequities are considered.
Changes: None.
Section 299.18(c)(5) Causes of and Strategies To Address Differences in
Educator Equity Rates
Comments: Multiple commenters stated that the requirement that SEAs
conduct a ``root cause analysis'' in proposed Sec. 299.18(c)(6)(i) is
confusing, unnecessary, and overly prescriptive, with some commenters
recommending that determinations regarding the appropriate level and
method of analysis be left to SEAs. Another commenter recommended that
the Department specifically require that an SEA analyze the extent to
which disparities between LEAs within the State, between schools within
LEAs, and within schools contribute to any statewide disparity, and
then examine the causes of any disparity at each level.
Discussion: While the Department believes that it is necessary and
appropriate for SEAs to determine the likely causes of the identified
[[Page 86205]]
differences in the rates at which certain subgroups of students are
taught by teachers with certain characteristics, our inclusion of the
term ``root cause analysis'' was not intended to specify a particular
methodology for determining such causes, and we are revising the final
regulations to eliminate this term. We also are revising the language
in the renumbered Sec. 299.18(c)(5)(i) to clarify that an SEA must
determine the likely causes of the most significant differences in the
rates at which certain subgroups of students are taught by teachers
with certain characteristics. To provide further clarity, we added
examples of such causes. We have also aligned the language in Sec.
299.18(c)(5)(i) with the Department's May 2015 non-regulatory guidance
regarding State Plans to Ensure Equitable Access to Excellent Educators
so that the regulations now incorporate language with which SEAs are
familiar. In so doing, we have clarified the requirement and minimized
the burden it imposes on SEAs by incorporating the guidance language
that SEAs previously relied upon when developing educator equity plans
in 2015.
We also agree with the commenter who advised that, to maximize the
benefits associated with student-level data, the Department require
that an SEA analyze the extent to which disparities at different levels
contribute to the statewide differences in rates, and the causes of the
disparities at each of those levels. As discussed in the student-level
data discussion above, the benefits associated with calculating and
reporting student-level data statewide are substantial because it
illuminates within-school disparities; accordingly, we have amended
this portion of the regulation to take advantage of the student-level
data requirement in Sec. 299.18(c)(3).
Changes: We have revised and renumbered Sec. 299.18(c)(5)(i) to
replace the phrase ``root cause analysis'' with ``identify the likely
causes'' and clarified that SEAs need only identify the likely causes
of the most significant differences in rates.
We have further revised Sec. 299.18(c)(5)(i) to clarify that an
SEA must identify whether the differences in rates at which certain
student subgroups are taught by teachers with certain characteristics
reflect differences between districts, within districts, and within
schools, as well as the likely causes of those differences in rates,
for example: Teacher shortages, working conditions, school leadership,
compensation, or other factors.
Comments: Some commenters expressed support for the requirement
that SEAs prioritize efforts aimed at reducing the extent to which low-
income and minority students are taught at disproportionate rates by
ineffective, out-of-field, or inexperienced teachers in schools
identified for comprehensive or targeted support and improvement.
Other commenters recommended allowing States to prioritize
strategies focused on the teacher attribute with the most negative
effects on student outcomes; for example, if State data showed that
student performance suffered the most from inexperienced teachers, an
SEA could elect to focus its efforts on reducing students'
disproportionate exposure to inexperienced teachers.
Discussion: We appreciate commenters' support for the requirement
that SEAs prioritize efforts aimed at eliminating disproportionalities
in schools identified for comprehensive or targeted support. Further,
we appreciate commenters' recommendation to include additional options
for prioritization. We agree that this may be an important approach to
lessening the differences in rates and are revising the regulatory
language to allow an SEA additional flexibility to provide in its State
plan strategies for the most significant differences in rates as
described by the SEA.
Changes: We have revised Sec. 299.18(c)(5) to allow SEAs to
prioritize strategies to address the most significant differences in
rates as identified by the SEA.
Comments: One commenter supported the proposed requirement that an
SEA include in its State plan the timelines and funding sources for its
strategies to address inequitable access to excellent educators.
Discussion: We agree with the commenter that an SEA must provide
timelines and funding sources to ensure successful implementation of
its strategies to address inequitable access to effective educators and
are retaining this requirement in the final regulations. Additionally,
we are clarifying that an SEA must describe whether Federal or non-
federal funds will support the identified strategies.
Changes: We have clarified Sec. 299.18(c)(5)(ii) to require each
SEA to describe whether Federal or non-federal funds will support its
educator equity strategies.
Progress Targets and Monitoring
Comments: Some commenters requested additional detail in proposed
Sec. 299.18(c)(6) on how each SEA planned to monitor its progress in
eliminating any disproportionate rates at which low-income and minority
children are served by ineffective, out-of-field, or inexperienced
teachers. Commenters encouraged the Department to define ``progress''
and require clear goals, timelines, and progress targets. Commenters
also suggested requiring SEAs to describe the manner in which the State
will monitor and support LEA efforts to eliminate such disparities.
Discussion: Section 1111(g)(1)(B) of the ESEA, as amended by the
ESSA, requires each SEA to describe how low-income and minority
children enrolled in title I, part A schools will not be served at
disproportionate rates by ineffective, out-of-field, or inexperienced
teachers. Therefore, if an SEA identifies any difference in rates, the
SEA must work to eliminate the difference in rates. Consequently, we
agree with commenters that to effectively eliminate a difference in
rates, it is important to establish clear goals towards eliminating any
differences in rates and report progress towards those goals, and we
are revising the final regulations accordingly.
Changes: In renumbered Sec. 299.18(c)(5)(iii), we have added a
requirement for each SEA to describe timelines and targets for
eliminating any differences in rates at which low-income and minority
students enrolled in title I, part A schools served by inexperienced,
out-of-field, and ineffective teachers.
Other Educator Equity Issues
Comments: Some commenters asserted that the phrase ``or statewide
guidelines for district definitions of ineffective teacher'' in Sec.
299.18(c)(2)(i) effectively permits States where districts do not
provide teacher appraisal data to the State, or where the provision of
such data is prohibited by State law, to comply with the statute.
Other commenters claimed that requiring SEAs to define and report
on ``ineffective teachers'' inherently requires State evaluations that
include an indicator for effectiveness, which commenters assert is
prohibited in the ESEA, as amended by the ESSA.
Other commenters asserted that the requirements in Sec.
299.18(c)(2)(v) must not violate individual privacy rights of teachers.
Commenters noted that educator evaluation data are protected by law in
some States, and claimed that reporting information required by the
proposed regulation is prohibited. Commenters recommended that
publication of data must be consistent with State and Federal privacy
laws and principles, in addition to any other policies regarding the
confidentiality of personnel information, and should not
[[Page 86206]]
allow publication of data that is personally identifiable of individual
teachers.
Discussion: The phrase ``or Statewide guidelines for LEA
definitions of ineffective teacher'' in Sec. 299.18(c)(2)(i) does not
provide an exception to the requirement for reporting uniform teacher
effectiveness data to the State; rather, this phrase gives SEAs the
flexibility to allow variance in LEA definitions of ``ineffective
teacher'' so long as each LEA complies with the statewide guidelines.
Although commenters asserted that certain State laws prohibit local
entities from providing teacher appraisal data to the State entity, an
SEA receiving title I, part A funds is required to report on
ineffective, out of field, or inexperienced teachers in order to comply
with section 1111(g)(1)(B) of the ESEA, as amended by the ESSA.
Further, to meet the requirements in Sec. 299.18(c) an LEA may report
aggregate numbers without any personally identifying information.
As discussed earlier, we do not agree that requiring each SEA to
define and report on ineffective teachers is prohibited by the ESEA, as
amended by the ESSA, because it is necessary for meeting the
requirements of section 1111(g)(1)(B) of the ESEA. Further, consistent
with the statutory provision in section 1111(e)(1)(B)(iii)(X), the
final regulations, like the proposed regulations, require SEAs to
establish their own definitions of ``ineffective teacher'' and do not
prescribe the use of any specific definition.
We agree with commenters that the requirements in Sec.
299.18(c)(2)(v) must not violate individual privacy rights of teachers.
Section 1111(i)(1) of the ESEA, as amended by the ESSA, specifies that
``information shall be collected and disseminated in a manner that
protects the privacy of individuals consistent with section 444 of GEPA
(20 U.S.C. 1223g, commonly known as [FERPA]) and this Act.'' Consistent
with these requirements, we are revising the final regulations to
clarify that reporting under Sec. 299.18(c) must be consistent with
FERPA. Commenters noted that evaluation data are protected by law in
some States, and claimed that reporting information required by the
proposed regulation is prohibited. However, this is not the case
because there is no requirement that any of these data be personally
identifiable.
Changes: We have revised Sec. 299.18(c)(4) by adding a provision
clarifying that when publishing and reporting educator equity
information in Sec. 299.13(c)(1)(iii), SEAs must comply with FERPA, 20
U.S.C. 1232g, and applicable regulations.
Comments: One commenter asked that the Department include a savings
clause which would allow collective bargaining agreements and State
laws that already define the statutory terms in Sec. 299.18(c) to
remain intact and enforceable even given the requirements in Sec.
299.18(c).
Discussion: The Department does not believe that a savings clause
to accommodate collective bargaining agreements or State laws is
necessary because an SEA has discretion in defining the statutory terms
related to ineffective, inexperienced, or out-of-field teachers,
consistent with Sec. 299.18(c). Accordingly, an SEA should have
sufficient flexibility to define these terms consistent with State law
and in ways that do not violate collective bargaining agreements.
Changes: None.
Comments: Several commenters requested that the Department protect
charter school autonomy by preserving the ability of charter schools to
hire teachers that meet the needs of their students, consistent with
State charter school law. These commenters recommended the final
regulations clarify that State definitions of ineffective,
inexperienced, or out-of-field teachers, as they apply to charter
schools, must defer to State charter school law. Furthermore,
commenters asked that the Department include language clarifying that
SEAs must carry out the requirements under Sec. 299.18(c) and Sec.
200.37, as they affect teachers in charter schools, in a manner
consistent with State charter schools law and all other State laws and
regulations governing public school teacher evaluation.
Discussion: As a condition of receiving title I, part A funds, an
SEA must ensure compliance with all applicable statutory and regulatory
requirements, including the requirements in section 1111(g)(1)(B) of
the ESEA, as amended by the ESSA, and Sec. 299.18(c) of these final
regulations. We note that under the final regulations, each SEA and, in
the case of the term ``ineffective teachers'' in States that elect to
provide LEAs with statewide guidelines for defining this term in lieu
of providing a statewide definition, districts, have substantial
latitude in defining the terms ineffective, inexperienced, and out-of-
field in a manner that is consistent with State charter schools law and
all other State laws and regulations governing public school teacher
evaluation.
Changes: None.
Section 299.18(c)(6) State Authority To Deny LEA Plans and Direct LEA
Use of Title II, Part A Funds
Comments: Two commenters expressed strong support for the
Department's proposal to permit an SEA to direct an LEA to use a
portion of its title II, part A funds to provide low-income and
minority students greater access to effective teachers and to require
an LEA to describe in its title II, part A plan how it will use such
funds to address any differences in rates at which certain subgroups of
students are taught by teachers with certain characteristics and to
deny approval of the plan if an LEA fails to do so.
Discussion: The Department appreciates commenters support for these
provisions.
Changes: None.
Section 299.19 Supporting All Students
Ensuring All Students Have the Opportunity To Meet State Standards
Comments: Some commenters expressed support for the requirement in
proposed Sec. 299.19(a) that each SEA describe how it will ensure that
all students have a significant opportunity to meet its challenging
State academic standards and career and technical education standards,
as applicable. Some of these commenters requested that the Department
require each SEA to describe how it will incorporate additional,
specific strategies in its efforts to support students in meeting such
standards, including personalized learning, expanded learning time, and
early developmental and behavioral screening. Further, one commenter
requested that the Department extend the continuum of a student's
education covered under Sec. 299.18 college and career.
Other commenters suggested that the Department include additional
requirements in Sec. 299.19, such as consultation requirements
specific to this section; efforts to engage families of traditionally
underserved students; and reporting on equitable access to a well-
rounded coursework.
Other commenters stated that the proposed requirements in Sec.
299.19(a) were overly burdensome and were not necessary to consider a
consolidated State plan under section 8302 of the ESEA, as amended by
the ESSA.
Discussion: The Department appreciates commenters' support of the
requirements in proposed Sec. 299.19(a). However, to streamline and
reduce burden in the preparation of consolidated State plans, we are
revising the requirements in Sec. 299.19(a)
[[Page 86207]]
to focus on the use of funds for title IV, part A and other included
programs to support the continuum of a student's education and provide
equitable access to a well-rounded education and rigorous coursework.
We also are revising Sec. 299.19(a)(1) to ensure that each SEA
supports LEAs doing this work, as well the remaining subsections in
Sec. 299.19(a) to require descriptions of the SEA's strategies for
school conditions, technology, and parent engagement to the extent that
an SEA intends to use Federal funds for such purposes which may have
significant benefit to students.
Consistent with this effort to streamline requirements in Sec.
299.18(a), we also decline to include additional strategies in the
required descriptions of SEA activities and plans or to extend the
continuum of education covered by such plans beyond grade 12. However,
we note that Sec. 299.19(a)(1)(i) continues to require an SEA to
describe how it will support a student's transition beyond high school.
We also believe that consultation related to Sec. 299.19(a) is
adequately addressed by the consultation requirements in Sec.
299.15(a) that requires that each SEA to consult with stakeholders on
each component of the consolidated State plan. Further, the Stakeholder
DCL provides recommendations on how States can meaningfully engage with
stakeholders, including strategies to ensure engagement with parents of
students from socioeconomically diverse backgrounds, parents of
students from subgroups identified by the ESEA, as amended by the ESSA,
and parents of students with disabilities. The Stakeholder DCL is
available at http://www2.ed.gov/policy/elsec/guid/secletter/160622.html. Similarly, existing reporting requirements in section
1111(h)(1)(viii) and (2)(C) of the ESEA, as amended by the ESSA,
address some aspects of equitable access to coursework and we decline
to expand those requirements in the final regulations.
Changes: We have revised Sec. 299.19(a)(1) to focus on the use of
funds provided under title IV, part A and other included programs to
support the continuum of a student's education and provide equitable
access to a well-rounded education and rigorous coursework. We also
have revised Sec. 299.19(a)(2) to require an SEA to provide
descriptions of its strategies only if it intends to use funds from
title IV, part A funds or included programs for the specific activities
detailed in paragraph (a)(2).
Arts
Comments: Many commenters requested that the Department include
``arts'' in the list of subjects described under proposed Sec.
299.19(a)(1)(ii) regarding equitable access to a well-rounded education
and rigorous coursework.
Discussion: The proposed regulations inadvertently omitted ``arts''
from the list of subjects in Sec. 299.19(a)(1)(ii). We are revising
the final regulations to correct this omission.
Changes: We have revised Sec. 299.19(a)(1)(ii) to include ``arts''
in the list of subjects included in a well-rounded education.
School Conditions
Comments: Many commenters requested that the Department expand and
further define the requirements in proposed Sec. 299.19(a)(1)(iii)
regarding school conditions for student learning, including, for
example, a definition for the ``overuse'' of discipline practices and
``aversive behavioral interventions, '' adding examples of such
interventions, and describing strategies to create safe, healthy, and
affirming school environments inclusive of all students.
Discussion: The requirement in Sec. 299.19(a)(1)(iii) is
consistent with section 1111(g)(1)(C) of the ESEA, as amended by the
ESSA. We appreciate the suggestions and underscore the importance of
ensuring that all students have access to a safe and healthy learning
environment. In recent years, the Department has released guidance and
numerous resources that describe best practices to improve school
climate and school discipline, as well as guidance on how schools can
meet their obligations under Federal law to administer student
discipline without discriminating on the basis of race, color, or
national origin (for example, see http://www2.ed.gov/policy/gen/guid/school-discipline/fedefforts.html). We believe this requirement will
ensure that an SEA works with its LEAs to implement locally designed
activities to promote school conditions for student learning. We also
agree that specific strategies related to safe, healthy, and affirming
school environments for all students are essential to improve school
conditions and are revising this regulation accordingly.
Changes: We have revised Sec. 299.19(a)(2)(i) to require each SEA
using funds for this purpose to describe strategies to improve school
conditions that create safe, healthy, and affirming school environments
inclusive of all students.
Effective Use of Technology
Comments: A few commenters recommended that the Department ensure
that all students, including for students with disabilities, have
access to computers and broadband internet connections because many
jobs in the future will have a science, technology, engineering, and
mathematics (STEM) component. Another commenter noted that the statute
only requires SEAs to describe how they will support LEAs, rather than
requiring an SEA to describe its strategies. The commenter recommended
that we revise the language in proposed Sec. 299.19(a)(1)(iv) to more
closely reflect the statutory language.
Discussion: We agree that access to the computers and the internet
is an important part of a high-quality education and supports STEM
education for all students. We also agree that the final regulations
should be more closely aligned with statutory requirements. For these
reasons, we are revising the final regulations to require an SEA to
describe how it will support LEAs to effectively use technology only if
the SEA is proposing to use funds under one or more of the included
programs for that purpose. We also are revising Sec. 299.19(a) to
focus on SEA support for LEA efforts to use technology effectively.
Changes: We have revised Sec. 299.19(a)(2) to require an SEA to
describe its strategies to support LEAs to effectively use technology
to improve academic achievement only if the State is proposing to use
funds under one or more of the included programs for that purpose.
Accurate Identification of Children With Disabilities and English
Learners
Comments: One commenter noted the importance of identifying
disabilities early in a child's educational experience. The commenter
recommended that we revise proposed Sec. 299.19(a)(1)(vi) to add that
the identification of children with disabilities includes the early
identification of children with disabilities.
Discussion: We agree with the commenter that the early
identification of students with disabilities is critical and results in
the provision of required special education and related services to
eligible children as early as possible in the course of their
education. However, because the importance of, and timely and accurate
identification of eligible children with disabilities is already
addressed in the IDEA and its implementing regulations, the
[[Page 86208]]
Department has determined that including similar requirements in these
final regulations would be unnecessarily duplicative and burdensome.
Consequently, the final regulations would instead require an assurance
in Sec. 299.14(c)(5) that the SEA has policies and procedures in
effect regarding the appropriate identification of children with
disabilities consistent with the child find and evaluation requirements
in section 612(a)(3) and (a)(7) of the IDEA, respectively. This
assurance is necessary to ensure the purpose of section 1001 of the
ESEA, as amended by the ESSA, is met ``to provide all children a
significant opportunity to receive a fair, equitable and high quality
education'' and to coordinate title I, part A activities under section
1111(a)(1)(B) with federal programs, including Part B of the IDEA.
The appropriate identification of students with disabilities is
addressed in the IDEA and its implementing regulations in sections
612(a)(3) and (a)(7) and 614(a)-(c) and 34 CFR 300.111, 300.122, and
300.300-300.311. In order to be eligible for an IDEA Part B grant, a
State is required to submit a plan that provides assurances that the
State has in effect policies and procedures to ensure that the State
meets specific conditions prescribed in section 612 of the IDEA,
including that all children with disabilities residing in the State,
regardless of the severity of their disabilities, and who are in need
of special education and related services, are identified, located, and
evaluated in accordance with applicable IDEA Part B requirements. These
requirements are designed to ensure that eligible children are
appropriately identified and provided required special education and
related services in a timely manner.
Proposed Sec. 299.19(a)(1)(vi) also required the accurate
identification of English learners which unnecessarily duplicated other
statutory and regulatory requirements, including section 3113(b)(2) of
the ESEA, as amended by the ESSA, and Sec. 299.13(c)(2) of these final
regulations.
Changes: We have revised Sec. 299.19(a)(1) by removing the
requirement that each SEA address the accurate identification of
children with disabilities and English learners. We have added an
assurance in Sec. 299.14(c)(5) regarding the appropriate
identification of children with disabilities.
Subgroups of Students Whom States Must Address
Comments: Several commenters supported the inclusion of particular
subgroups in proposed Sec. 299.19(a)(2)(i), such as students in foster
care, homeless children and youth, and children with disabilities,
while others recommended the addition of other groups of vulnerable
students, including those aligned with eligible in-school youth
definitions under WIOA and students taught primarily through Native
American languages. However, other commenters expressed concern about
the burden associated with addressing the needs of the required
subgroups in State plans.
Discussion: We appreciate the commenters' support for proposed
Sec. 299.19(a)(2)(i). While an SEA may choose to address the needs of
additional subgroups of students in its State plan, we decline to
include additional subgroups in the final regulations, in part because
we believe most, if not all, of the students in the additional
subgroups proposed by commenters are likely to be captured by one or
more of the existing subgroups in final Sec. 299.19(a)(1)(iii). In
response to concerns about administrative burden, we note that while an
SEA must address the needs of each subgroup in Sec. 299.19(a)(1)(iii),
it does not have to address each subgroup of students individually; for
example, it may use a single strategy to address the needs of multiple
subgroups.
Changes: None.
Physical Education
Comments: One commenter recommended that the Department provide
guidance regarding use of title IV, part A funds to support physical
education.
Discussion: The Department will be issuing guidance on allowable
uses of title IV, part A funds, including use of these funds to support
physical education.
Changes: None.
Title I, Part C Priority for Services Requirements
Comments: None.
Discussion: Based on further internal review, we have determined
that the proposed requirement in Sec. 299.19(c)(2)(v) for each SEA to
describe its processes and procedures when implementing priority for
services for migratory students under section 1304(d) of the ESEA, as
amended by the ESSA, would place an unnecessary burden on SEAs. Under
the final regulations, each SEA must describe the measures and data
sources used in making priority for services determinations, as well as
when and how such determinations will be communicated on a statewide
basis, but it will not be required to describe how it will delegate
responsibilities for documenting such determinations and the provision
of services. Finally, the Department is aligning the requirement in
Sec. 299.19(b)(2)(v) to the statutory requirement in section
1304(b)(4) of the ESEA, as amended by the ESSA. The description in
final Sec. 299.19(b)(2)(v) is more limited because the SEA is required
to only describe its priorities for the use of title I, part C funds
related to the needs of migratory children with ``priority for
services.''
Changes: We have revised Sec. 299.19(b)(2)(v) to require each SEA
to describe only its priorities for the use of title I, part C funds
related to the needs of migratory children with ``priority for
services,'' including (1) the measures and sources of data the SEA, and
if applicable, its local operating agencies (LOAs), which may include
LEAs, will use to identify which migratory children are a priority for
services; and (2) when and how the SEA will communicate those
determinations to all LOAs in the State.
Title III, Part A Standardized Entrance and Exit Procedures for English
Learners
Comments: Some commenters generally supported proposed Sec.
299.13(c)(3), including the requirement that criteria to determine a
student's placement in or exit from English learner status be applied
consistently across LEAs in a State. While supporting proposed Sec.
299.13(c)(3) generally, other commenters requested clarification of
some of the provisions in proposed Sec. 299.13(c)(3), including their
application to both entrance and exit criteria, assurances related to
criteria other than ELP assessment results, the input of local
educators on exit decisions, and continued eligibility for services
following exit from English learner status.
Finally, some commenters expressed various concerns. Specifically,
one commenter opposed the requirement to include criteria and not just
procedures in proposed Sec. 299.19(c)(3), asserting that the statute
does not require criteria but only procedures; another expressed
concern that proposed Sec. 299.19(c)(3) does not allow for locally
administered assessments as part of an SEA's exit criteria, and one
questioned the need for proposed Sec. 299.19(c)(3)(iv), which
references civil rights obligations, given that proposed Sec.
299.13(c)(2) appears to address the requirement.
Discussion: We appreciate commenters' general support for proposed
Sec. 299.19(c)(3). Under
[[Page 86209]]
proposed Sec. 299.19(c)(3), an SEA's standardized entrance and exit
procedures must include valid, reliable, and objective criteria that
are applied consistently across the State. We agree that it is
important for an SEA to consistently apply both entrance and exit
criteria and that the criteria that an SEA selects, in addition to
results on an SEA's ELP assessment, must be narrowly defined such that
they can be consistently applied in LEAs across the State. However, we
believe that final Sec. 299.19(b)(4) sufficiently ensures these
parameters around entrance and exit criteria.
With regard to including local input in an SEA's exit criteria,
under proposed Sec. 299.19(c)(3), which is moved to Sec. 299.19(b)(4)
in the final regulations, an SEA may incorporate local input that is
valid, reliable, objective, and applied and weighted the same way
across the State. For example, an SEA's exit criteria may include local
input such as the use of an observational protocol or rubric-graded
portfolio, as long as such input is applied and weighted consistently
across the State. Thus, the regulations permit a local team to
recommend continuing a student in English learner status even if the
student scores proficient on the State's ELP assessment.
We also note that a student may continue to receive English
language support with local or State funds even after exiting from
English learner status. Furthermore, we will consider reemphasizing
this in guidance.
Regarding concern over the requirement that an SEA's standardized
entrance and exit procedures must also include criteria, as discussed
earlier, under GEPA and DEOA, the Secretary has general rulemaking
authority. Therefore, it is not necessary for the Act to specifically
authorize the Secretary to issue a particular regulatory provision.
Given the title III, part A requirement to describe statewide entrance
and exit procedures under section 3113(b)(2) of the ESEA, as amended by
the ESSA, we believe it is within our regulatory authority to ensure
that the procedures include criteria that will ensure the purposes of
title III, part A are met, including to ensure that English learners
attain ELP and develop high levels of academic achievement in English.
With respect to the use of locally administered assessments, the
Department believes that final Sec. 299.19(b)(4) appropriately
precludes use of locally administered ELP assessments as part of its
exit criteria, as local assessments, by definition, are not standard
across the State. However, local assessments may be used to help
identify the needs of and appropriate instructional supports for
English learners so that they can attain English proficiency. Finally,
we agree with the commenter regarding proposed Sec. 299.19(c)(3)(iv)
on civil rights obligations, and are moving that provision to Sec.
299.13(c)(2).
Changes: We have removed proposed Sec. 299.19(c)(3)(iv) and added
necessary text to Sec. 299.13(c)(2) requiring an SEA to provide an
assurance that its exit procedures as well as its entrance procedures
are consistent with civil rights obligations.
Title III, Part A Exit Procedures for English Learners
Comments: Some commenters supported proposed Sec. 299.19(c)(3),
which restricts the use of content area assessments as part of an SEA's
standardized exit criteria, with one commenter explaining that content
area assessments are neither designed nor intended to measure a
student's ELP and thus should not be used as a criterion in deciding to
continue a student in or exit a student from English learner status.
This same commenter, however, asserted that an SEA can and should use
results of content area assessments to set academic achievement
standards (i.e., ``cut scores'') on the SEA's ELP assessment,
particularly to help mitigate against cut scores that result in
students prematurely exiting English learner status.
Commenters who opposed the restriction generally sought greater
flexibility in using the results of content area assessments to inform
decisions on both continuing a student in or exiting a student from
English learner status. For example, some commenters stated that it may
be appropriate to use the results of content assessments to continue a
student's English learner status if the ELP assessment is not fully
aligned with a State's academic content standards or the cut scores on
the ELP assessment have not been set at appropriate levels and thus
could result in a student prematurely exiting English learner status
(and potentially violating a student's civil rights). Among commenters
who supported using the results of content assessments to exit students
from English learner status, one commenter asserted that a student who
scores proficient on the State's reading/language arts assessment, but
just below a score of proficient on the State's ELP assessment, should
be permitted to exit English learner status, and that such flexibility
could help account for error in ELP assessments. Finally, one commenter
requested clarification as to what academic content assessments means
under proposed Sec. 299.19(c)(3).
Discussion: Under proposed Sec. 299.19(c)(3), an SEA's
standardized entrance and exit procedures must not include performance
on an academic content assessment. Academic content assessments in this
context means any academic content assessments, including the statewide
assessments in reading/language arts, mathematics, or science used for
accountability purposes, as well as other assessments.
The Department continues to believe that while performance on
content area assessments may be affected by a student's level of ELP,
such assessments are not valid and reliable measures of ELP and, if
used to continue a student's status as an English learner, may do so
inappropriately (i.e., when a student is proficient in English) and
lead to negative academic outcomes for an individual student. We are
aware that some SEAs and LEAs have entered into resolution agreements
or consent decrees with Federal agencies that contain provisions
relating to exit criteria for English learners. We encourage those SEAs
and LEAs to contact the Department so that we may, together with the
U.S. Department of Justice, assist those SEAs and LEAs with the
requirements under both these regulations and the applicable resolution
agreement or consent decree.
It would be equally inappropriate use a proficient score on the
reading/language arts assessment to exit a student whose ELP assessment
results are close to the cut score. The reading/language arts
assessment typically does not assess all four domains (reading,
writing, listening, and speaking); consequently, using results on such
an assessment as part of exit criteria may result in a student exiting
who is not able to succeed in a classroom in which listening and
speaking in English are crucial skills. Finally, we agree that using
the results on content area assessments to help establish cut scores on
an ELP assessment may contribute to more meaningful cut scores on the
English language proficiency assessment, and we note that the final
regulations do not restrict the use of content area assessment results
for this purpose.
Changes: None.
Comments: Some commenters expressed support for the requirement in
proposed Sec. 299.13(c)(3) that an SEA's standardized exit criteria
for English learners must include a score of proficient on the State's
ELP assessment as one criterion to exit a student from English learner
status. However, one of
[[Page 86210]]
these commenters recommended prohibiting SEAs from using the results of
the ELP assessment as its sole criterion for determining English
learner status. Other commenters opposed Sec. 299.13(c)(3), with some
expressing concern that English learners who are also students with
disabilities might never be able to exit English learner status and
others questioning how a student whose parents opt their children out
of all State standardized testing would be able to exit English learner
status without an ELP score.
Discussion: We believe that, consistent with the January 7, 2015
Dear Colleague Letter on serving English learners, including those with
disabilities, which was jointly signed by the U.S. Department of
Justice and OCR, a score of proficient on the State's ELP assessment is
critical to ensuring that a student is appropriately exited from
English learner status (see http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf). Such exit must, at a minimum, be
based on a valid and reliable measure that demonstrates sufficient
student performance across the required domains in order to consider an
English learner to have attained proficiency in English, i.e., a
State's ELP assessment. While States have flexibility under the final
regulations to use objective criteria related to English language
proficiency in addition to a proficient score on the State ELP
assessment to determine English learner status, we decline to require
the use of multiple criteria.
With respect to a student whose parents may have chosen to opt the
student out of all State standardized testing, a high-quality
assessment system, including State standardized tests, helps parents,
teachers, and other stakeholders to understand and address the needs of
individual and groups of students. A State's ELP assessment, along with
other indicators of a student's performance and progress at achieving
ELP, can focus efforts on areas where students most need support to
help ensure their academic success, attainment of a regular high school
diploma, and pursuance of postsecondary education or a career of their
own choosing.
Changes: None.
McKinney-Vento Education for Homeless Children and Youths (McKinney-
Vento) Program
Comments: We received one comment supporting the inclusion of the
McKinney-Vento program in the consolidated State plan. We received
another comment, submitted with multiple signatories, expressing
concern that several key elements of the State plan required in the
McKinney-Vento Homeless Assistance Act, as amended by the ESSA, were
omitted from the program-specific requirements under Sec. 299.19(c)(5)
and recommending the addition of certain requirements to the final
regulations. The commenters expressed concern that without the
inclusion of these requirements in the consolidated State plan, each
SEA may not provide adequate attention to them when implementing the
McKinney-Vento Homeless Assistance Act, as amended by the ESSA. The
commenters also noted that because the SEA's plan for addressing these
critical elements would not be included in the consolidated State plan,
stakeholders and the public would not have a formal opportunity to
provide comments on them, as required by the consultation requirements
in Sec. 299.13.
Discussion: We appreciate the comments supporting the inclusion of
the McKinney-Vento program in the consolidated State plan. We note that
under Sec. 299.13(c), all SEAs, whether submitting an individual or
consolidated State plan, must submit a single set of section 8304(a)(1)
assurances, applicable to each program for which the plan or
application is submitted, that provides that each such program will be
administered in accordance with all applicable statutes, regulations,
program plans, and applications. These assurances are consistent with
the purpose of the consolidated State plan requirements under Section
8302 of the ESEA, as amended by the ESSA, which aims to simplify
application requirements and which requires the Secretary to require
only descriptions, information, assurances, and other materials that
are absolutely necessary for the consideration of the consolidated
State plan. The consolidated State plan requirements for the McKinney-
Vento program contain those requirements that we have determined are
absolutely necessary for the consideration of the consolidated State
plan, and we decline to add any additional requirements beyond those
that are absolutely necessary. We also note that these areas are
covered in depth in the updated non-regulatory guidance the Department
released on July 27, 2016, (available at http://www2.ed.gov/policy/elsec/leg/essa/160240ehcyguidance072716.pdf).
Changes: None.
Program-Specific Requirements for Title I, Part D
Comments: A number of commenters expressed concern that there was
not more specific mention of title I, part D requirements in the NPRM.
Several of these commenters expressed a desire for more emphasis in the
regulations on transition services for students moving between
correctional facilities and locally operated programs, and several
commenters requested more focus in the final regulations on how States
plan to assess the effectiveness of their title I, part D programs in
improving the academic, career, and technical skills of children in the
program. Some commenters also requested regulatory changes to provide
clear instructions for monitoring. Finally, one commenter asked that
the Department define ``at-risk'' in the regulations.
Discussion: We agree with the commenters that title I, part D
should be addressed in the consolidated State plan requirements and are
adding title I, part D requirements in Sec. 299.19(c)(3). Consistent
with Section 8302 of the ESEA, as amended by the ESSA, we are adding
only those requirements that we have determined are absolutely
necessary for the consideration of the consolidated State plan.
Regarding monitoring, the SEA is expected to meet the requirements
outlined in title I, part D, and the Department declines to add any
additional monitoring requirements. Similarly, section 1432(2) of the
ESEA, as amended by the ESSA, already includes a definition of the term
``at-risk.''
Changes: We have revised Sec. 299.19(c)(3) to include title I,
part D consolidated State plan requirements.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) 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
``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,
[[Page 86211]]
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 stated in the
Executive order.
This final regulatory action is an economically significant
regulatory action subject to review by OMB under section 3(f) of
Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account, among other things and to the extent practicable, the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives such as user fees or
marketable permits, to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on the analysis that follows, the
Department believes that these final regulations are consistent with
the principles in Executive Order 13563.
We have also determined that this regulatory action will not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
We have assessed the costs and benefits of this regulatory action.
The costs associated with the final regulations are those resulting
from statutory requirements and those we have determined as necessary
for administering these programs effectively and efficiently. Elsewhere
in this section under Paperwork Reduction Act of 1995, we identify and
explain burdens specifically associated with information collection
requirements.
In assessing the costs and benefits--both quantitative and
qualitative--of these final regulations, we have determined that the
benefits justify the costs.
Discussion of Costs and Benefits
The Department believes that the majority of the changes in these
final regulations will not impose significant costs on States, LEAs, or
other entities that participate in programs addressed by this
regulatory action. Other changes will impose costs, but in many cases
they are one-time or initial costs that will not recur, and the
Department believes that the benefits resulting from the regulations
will exceed the costs by a significant margin. We also note that while
the Department received over 20,000 public comments on the proposed
regulations, only four commenters addressed the Regulatory Impact
Analysis, with one commenter supporting the cost estimates in the NPRM
and three commenters asserting that the estimates did not fully reflect
the costs of implementation. We believe that this relatively low level
of concern about administrative burdens and costs confirms our view, as
expressed in the NPRM, that the regulatory framework in these
regulations for State accountability systems based on the ESEA, as
amended by the ESSA, closely parallels current State systems, which
include long-term goals and measurements of interim progress; multiple
indicators, including indicators of Academic Achievement, Graduation
Rates, and other academic measures selected by the State; annual
differentiation of school performance; the identification of low-
performing schools; and the implementation of improvement plans for
identified schools.
In addition, the final regulations, consistent with the
requirements of the ESEA, as amended by the ESSA, provide considerable
flexibility to States and LEAs in determining the specific approaches
to meeting new requirements, including the rigor of long-term goals and
measurements of interim progress, the timeline for meeting those goals,
the selection and weighting of indicators of student and school
progress, the criteria for identification of schools for improvement,
and the development and implementation of improvement plans. This
flexibility allows States and LEAs to build on existing measures,
systems, and interventions rather than creating new ones, and to
determine the most cost-efficient and least burdensome means of meeting
proposed regulatory requirements, instead of a standardized set of
prescriptive requirements. For all of these reasons, this final cost-
benefit analysis generally is consistent with the Department's original
estimates.
One commenter asserted that virtually the entire reduced burden in
the proposed regulations resulted from statutory rather than regulatory
changes, implying that the cost-benefit analysis improperly attributed
burden reduction to the regulations. The commenter also asserted that
in reducing flexibility for States compared to statutory requirements,
the proposed regulations would likely increase costs for States due to
the additional administrative burdens of meeting new requirements. In
response, we note that, consistent with OMB requirements, our cost-
benefit analysis in the final regulations, as in the proposed
regulations, takes into account the estimated costs of both statutory
and regulatory changes compared to previous statutory and regulatory
requirements.
Accordingly, we identify certain statutory changes to the
accountability systems and school improvement requirements of the ESEA,
as amended by the ESSA, which would result in a significant reduction
in costs and administrative burdens for States and LEAs. First, the
previous regulations, which are based on the core goal of ensuring 100
percent proficiency in reading and mathematics for all students and all
subgroups, potentially result in the identification of the overwhelming
majority of participating title I schools for improvement, corrective
action, or restructuring. Such an outcome would produce unsustainable
demands on State and local capacity to develop, fund, implement, and
monitor school improvement plans and related school improvement
supports. It was the prospect of this outcome that drove the
development of, and rapid voluntary requests for, waivers of certain
[[Page 86212]]
accountability and school improvement requirements under ESEA
flexibility prior to enactment of the ESSA. The final accountability
regulations instead will require, consistent with the requirements of
the ESEA, as amended by the ESSA, more flexible, targeted, largely
State-determined systems of differentiated accountability and school
improvement focused on the lowest-performing schools in each State,
including the bottom five percent of title I schools based on the
performance of all students, as well as other schools identified for
consistently underperforming subgroups. Based on the experience of ESEA
flexibility, the Department estimates that States will identify a total
of 10,000-15,000 schools for school improvement nationwide--of which
the Department estimates 4,000 will be identified for comprehensive
support and improvement--compared with as many as 50,000 under the
previous regulations in the absence of waivers. While the costs of
carrying out required school improvement activities under the previous
regulations varied considerably across schools, LEAs, and States
depending on a combination of factors, including the stage of
improvement and locally selected interventions, it is clear that the
final regulations will dramatically decrease potential school
improvement burdens for most States and LEAs.
Second, under the final regulations, LEAs will not be required to
make available supplemental educational services (SES) to students from
low-income families who attend schools identified for improvement. This
means that States will not be required to develop and maintain lists of
approved SES providers, review provider performance, monitor LEA
implementation of SES requirements, or set aside substantial amounts of
title I, part A funding for SES. States and LEAs also will no longer be
required to report on either student participation or expenditures
related to public school choice or SES. While States participating in
ESEA flexibility generally already have benefited from waivers of the
statutory and regulatory requirements related to public school choice
and SES, the final regulations will extend this relief to all States
and LEAs without the additional burden of seeking waivers.
Third, the final regulations will eliminate requirements for State
identification of LEAs for improvement and the development and
implementation of LEA improvement and corrective action plans. As would
be the case for schools, the current regulations would require such
plans for virtually all participating title I LEAs; the final
regulations will not require States to identify any LEAs for
improvement.
While most of the elements and requirements of State accountability
systems required by the final regulations involve minimal or even
significantly reduced costs compared to the requirements of the
previous regulations, there are certain proposed changes that could
entail additional costs, as described below.
Goals and Indicators
Section 200.13 requires States to establish a uniform procedure for
setting long-term goals and measurements of interim progress for
English learners that can be applied consistently and equitably to all
students and schools for accountability purposes and that consider
individual student characteristics (e.g., grade level, English language
proficiency level) in determining the most appropriate timeline and
goals for attaining English language proficiency for each English
learner. We estimate that each State will, on average, require 80 hours
of staff time to develop the required uniform procedure. Assuming a
cost of $40 per hour for State staff, the final regulations will result
in a one-time cost, across 50 States, the District of Columbia, and
Puerto Rico, of $166,400. We believe that the development of a uniform,
statewide procedure will minimize additional costs and administrative
burdens at the LEA level, and that any additional modest costs will be
outweighed by the benefits of the final regulations, which will allow
differentiation of goals for an English learners based on their
language and educational backgrounds, thereby recognizing the varied
needs of the English learner population. Setting the same long-term
goals and measurements of interim progress for all English learners in
the State would fail to account for these differences in the English
learner population and would result in goals that are inappropriate for
at least some students and schools.
Under Sec. 200.14(b)(5), States will be required to develop at
least one indicator of School Quality or Student Success that measures
such factors as student access to and completion of advanced
coursework, postsecondary readiness, school climate and safety, student
engagement, educator engagement, or any other measure the State
chooses. Section 200.14(c) specifies that measures within School
Quality or Student Success indicators must, among other requirements,
be valid, reliable, and comparable across all LEAs in the State and
support meaningful differentiation of performance among schools. We
recognize that the development and implementation of new School Quality
or Student Success indicators, which may include the development of
instruments to collect and report data on one or more such measures,
could impose significant additional costs on a State that elects to
develop an entirely new measure. However, the Department also believes,
based in part on its experience in reviewing waiver requests under ESEA
flexibility, that all States currently collect data on one or more
measures that may be suitable as an indicator of School Quality or
Student Success consistent with the requirements of Sec. 200.14(b)(5).
Consequently, we believe that all, or nearly all, States will choose to
adapt a current measure to the purposes of Sec. 200.14(b)(5), rather
than developing an entirely new measure, and thus that the final
regulations will not impose significant new costs or administrative
burdens on States and LEAs.
Participation Rate
Section 200.15(b)(2)(iv) provides flexibility for a State to
develop and submit for approval--as part of either a consolidated State
plan or a title I, part A State plan--a State-determined action or set
of actions for factoring the 95 percent participation rate requirement
into its system of annual meaningful differentiation of schools that is
sufficiently rigorous to improve a school's assessment participation
rate so that it meets the 95 percent participation rate requirement. We
note that a State may avoid the administrative burden and cost of
developing its own State-determined action, or set of actions, by
adopting one or more of the alternative actions provided in Sec.
200.15(b)(2)(i)-(iii). Nevertheless, we estimate that 26 States will
take advantage of this flexibility and incur the one-time costs of
developing or adopting and submitting for approval to the Department a
State-determined action or set of actions for schools that miss the 95
percent participation rate. The Department further estimates that these
26 States would need, on average, 32 hours to develop or adopt and
submit for peer review and approval such a State-determined action. At
$40 per hour, the average cost per State would be $1,280, resulting in
total costs of $33,280 for the estimated 26 States. We expect that
States generally would use Federal education funds they reserve for
State administration under title I, part A to cover these one-time
costs.
[[Page 86213]]
In addition, Sec. 200.15(c)(2) requires an LEA with a significant
number of schools that fail to assess at least 95 percent of all
students or 95 percent of students in any subgroup to develop and
implement an improvement plan that includes support for school-level
plans to improve participation rates that must be developed under Sec.
200.15(c)(1). Section 200.15(c)(2) further requires States to review
and approve these LEA plans.
These improvement plan requirements are similar to previous
regulations that required States to: Annually review the progress of
each LEA in making AYP; identify for improvement any LEA that fails to
make AYP for two consecutive years, including any LEA that fails to
make AYP as a result of not assessing 95 percent of all students or
each subgroup of students; and provide technical assistance and other
support related to the development and implementation of LEA
improvement plans. Current regulations also require States to take
certain corrective actions in LEAs that miss AYP for four or more
consecutive years, including LEAs that miss AYP due to not assessing 95
percent of all students or each subgroup of students. As noted
previously, the final regulations no longer require annual State review
of LEA progress; State identification of LEAs for improvement; or the
development, preparation, or implementation of LEA improvement or
corrective action plans. This significant reduction in State burden
more than offsets the burden in the final regulations related to both
the potential one-time cost of developing a State-determined action for
schools that miss the 95 percent participation rate and reviewing and
approving LEA plans to address low assessment participation rates in
their schools. In addition, State discretion to define the threshold
for ``a significant number of schools'' that would trigger the
requirement for LEA plans related to missing the 95 percent
participation rate will provide States a measure of control over the
burden of complying with the final regulations. Consequently, the
Department believes that the final regulations related to the 95
percent participation rate will not increase costs or administrative
burdens significantly for States, as compared to the current
regulations. Moreover, we believe that these requirements will have the
significant benefit of helping to ensure that the plans include
effective interventions that will improve participation in assessments,
facilitate transparent information for families and educators on
student progress, and assist schools in supporting high-quality
instruction and meeting the demonstrated educational needs of all
students.
School Improvement Process
The school improvement requirements in the final regulations
generally are similar to those required under the current regulations.
The previous regulations required identification of schools for
multiple improvement categories, State and LEA notification of
identified schools, the development and implementation of improvement
plans with stakeholder involvement, State support for implementation of
improvement plans, LEA provision of public school choice and SES
options (the latter of which also imposes significant administrative
burdens on States), and more rigorous actions for schools that do not
improve over time. In addition, the previous regulations included a
prescriptive timeline under which schools that do not improve must
advance to the next stage of improvement, typically only after a year
or two of implementation at the previous stage (e.g., a school is given
only one year for corrective action to prove successful before being
identified for restructuring). The previous regulations also generally
did not allow for a planning year prior to implementation of the
required improvement plans (with the exception of the penultimate
restructuring phase). The final regulations, consistent with the
statute, provide more flexibility around the timeline for identifying
schools (e.g., once every three years for comprehensive support and
improvement schools), up to a full year to develop comprehensive
support and improvement and targeted support and improvement plans, and
more time for full and effective implementation of improvement plans
based on State- and LEA-determined timelines for meeting improvement
benchmarks. The final regulations also eliminate the public school
choice and SES requirements, which impose substantial administrative
costs and burdens on LEAs that are not directly related to turning
around low-performing schools. We believe that the final regulations
will result in a significant reduction in the administrative burdens
and costs imposed by key school improvement requirements by the
previous regulations.
The final regulations also clarify certain elements of the school
improvement process required by the ESEA, as amended by the ESSA,
including the needs assessment for schools identified for comprehensive
support and improvement, the use of evidence-based interventions in
schools identified for both comprehensive support and improvement and
targeted support and improvement, and the review of resource inequities
required for schools identified for comprehensive support and
improvement as well as for schools with low-performing subgroups
identified for targeted support and improvement under Sec.
200.19(b)(2). Section 200.21 requires an LEA with such a school to
carry out, in partnership with stakeholders, a comprehensive needs
assessment that takes into account, at a minimum, the school's
performance on all indicators used by the State's accountability system
and the reason(s) the school was identified. The final regulations also
require the LEA to develop a comprehensive support and improvement plan
that is based on the needs assessment and that includes one or more
evidence-based interventions. These requirements are similar to the
requirements in the previous regulations, under which LEAs with schools
identified for improvement must develop improvement plans that include
consultation with stakeholders. Thus we believe that the final
regulations related to conducting a needs assessment and the use of
evidence-based interventions will not increase costs or administrative
burdens significantly for LEAs, as compared to the previous statutory
and regulatory requirements. Moreover, we believe that these
requirements will have the significant benefit of helping to ensure
that the required improvement plans include effective interventions
that meet the demonstrated educational needs of students in identified
schools, and ultimately improve outcomes for those students.
Section 200.21 also requires LEAs with schools identified for
comprehensive support and improvement, as well as schools with low-
performing subgroups identified for targeted support and improvement
that also must receive additional targeted support under Sec.
200.19(b)(2), to identify and address resource inequities, including
any disproportionate assignment of ineffective, out-of-field, or
inexperienced teachers and possible inequities related to the per-pupil
expenditures of Federal, State, and local funds. These requirements
involve an additional use of data and methods that LEAs would be
required to develop and apply to meet other statutory and regulatory
requirements in the final regulations, including requirements related
to ensuring that low-income and
[[Page 86214]]
minority students are not taught at disproportionate rates by
ineffective, out-of-field, or inexperienced teachers, the inclusion of
per-pupil expenditure data on State and LEA report cards, and the use
of per-pupil expenditure data to meet the title I supplement not
supplant requirement. In addition, the final regulations do not specify
how an LEA must address any resource inequities identified through its
review. We believe it is critically important to ensure equitable
access to effective teachers, and that the fair and equitable
allocation of other educational resources is essential to ensuring that
all students, particularly the low-achieving, disadvantaged, and
minority students who are the focus of ESEA programs, have equitable
access to the full range of courses, instructional materials,
educational technology, and programs that help ensure positive
educational outcomes.\31\ Consequently, we believe that the benefits of
the required review of resource inequities outweigh the minimal
additional costs that may be imposed by the final regulations.
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\31\ See, for example, U.S. Department of Education, Office for
Civil Rights Dear Colleague Letter, Resource Comparability, October
1, 2014. http://www.ed.gov/ocr/letters/colleague-resourcecomp-201410.pdf.
---------------------------------------------------------------------------
Section 200.21 establishes a new requirement for State review and
approval of each comprehensive support and improvement plan developed
by LEAs with one or more schools identified for comprehensive support
and improvement, as well as proposed amendments to previously approved
plans. This requirement potentially imposes additional costs compared
to the previous regulations. One commenter noted that while cost
estimates in the NPRM captured a portion of the costs of these plans,
the estimates did not recognize other start-up costs, such as preparing
for the collection and review of plans and training LEAs on plan
requirements, as well as ongoing costs related to monitoring
comprehensive support and improvement plans and revising plans when
necessary. The commenter further noted that States would likely have to
engage both LEAs and schools to ensure the development and
implementation of effective improvement plans. The Department agrees
that its initial estimates likely understated the average costs that
States would incur in creating an application process, training LEA
staff, collecting applications, and reviewing and approving
comprehensive support and improvement plans for the estimated 4,000
schools that will be identified for comprehensive support and
improvement under the final regulations. Consequently, we are
increasing the number of hours that we estimate these activities would
take, on average, for each identified school from 20 hours to 30 hours,
representing the addition of 5 hours for training and 5 hours for
administrative processing of each application. Assuming a cost of $40
per hour for State staff, the total estimated State costs related to
comprehensive support and improvement plans rises from $3,200,000 in
the NPRM to $4,800,000 in these final regulations. States are expected
to incur these costs just once over the course of the four-year
authorization of the law due to the delayed timeline for identification
of the initial cohort of comprehensive support and improvement schools,
which under the final regulations will take place at the beginning of
the 2018-2019 school year. We also note that this cost represents less
than 3 percent of the funds that States are authorized to reserve
annually for State-level administrative and school improvement
activities under part A of title I of the ESEA, as amended by the ESSA.
Given the critical importance of ensuring that LEAs implement rigorous
improvement plans in their lowest-performing comprehensive support and
improvement schools, and that a significant proportion of the
approximately $1 billion that States will reserve annually under
section 1003 of the ESEA, as amended by the ESSA, will be used to
support effective implementation of these plans, we believe that the
potential benefits of a robust State review and approval role will far
outweigh the costs. Moreover, those costs would be fully paid for with
formula grant funds made available through the ESEA, as amended by the
ESSA, including the 1 percent administrative reservation under title I,
part A and the 5 percent State-level share of section 1003 school
improvement funds.
We further note that the analysis in the NPRM did account for the
requirement that the State monitor and periodically review each LEA's
implementation of approved comprehensive support and improvement plans.
As described in the NRPM, these activities are essentially the same as
those carried out under the previous statute and regulations for
schools identified for improvement, corrective action, and
restructuring, as well as State-level monitoring requirements under the
School Improvement Grants program, and thus do not represent new burden
or costs for States. In addition, section 1003 of the ESEA, as amended
by the ESSA, which requires States to reserve a total of approximately
$1 billion annually to support implementation of comprehensive support
and improvement and targeted support and improvement plans, permits
States to use up to 5 percent of these funds for State-level
activities, including ``monitoring and evaluating the use of funds'' by
LEAs using section 1003 funds for comprehensive support and improvement
plans. For these reasons, we believe that the requirement in the final
regulations to monitor and periodically review each LEA's
implementation of approved comprehensive support and improvement plans
would impose few, if any, additional costs compared to previous
regulatory requirements, and that any increased costs would be paid for
with Federal funding provided for this purpose.
The final regulations also require States to establish exit
criteria for schools implementing comprehensive support and improvement
plans and for certain schools with low-performing subgroups identified
for targeted support and improvement that also must receive additional
targeted support under Sec. 200.19(b)(2) and implement enhanced
targeted support and improvement plans. In both cases, the final
regulations require that the exit criteria established by the State
ensure that a school (1) has improved student outcomes and (2) no
longer meets the criteria for identification. Schools that do not meet
exit criteria following a State-determined number of years will be
identified for additional improvement actions (as outlined by an
amended comprehensive support and improvement plan for schools already
implementing such plans, and a comprehensive support and improvement
plan for schools previously identified for targeted support and
improvement due to low-performing subgroups that also receive
additional targeted support). We believe that these additional
requirements will be minimally burdensome and entail few, if any,
additional costs for States. Moreover, most States already have
developed similar exit criteria for their priority and focus schools
under ESEA flexibility, and likely will be able to adapt existing
criteria for use under the final regulations. Rigorous exit criteria
linked to additional improvement actions are essential for ensuring
that low-performing schools, and, more importantly, the students who
attend
[[Page 86215]]
them, do not continue to underperform for years without meaningful and
effective interventions. Moreover, the additional improvement actions
primarily involve revision of existing improvement plans, which will be
less burdensome than, for example, moving from corrective action to
restructuring under current regulations, which requires the creation of
an entirely new plan involving significantly different interventions.
For these reasons, we believe that the benefits of the final
regulations will outweigh the costs.
In addition to requiring States to review and approve comprehensive
support and improvement plans, monitor implementation of those plans,
and establish exit criteria, the final regulations require States to
provide technical assistance and other support to LEAs serving a
significant number of schools identified either for comprehensive
support and improvement or targeted support and improvement.
Section 200.23 requires each State to periodically review available
resources between LEAs and between schools. The final regulations also
require each State to take action, to the extent practicable, to
address any resource inequities identified during its review. These
reviews generally will not require the collection of new data and, in
many cases, will involve re-examining information and analyses provided
to States by LEAs during the process of reviewing and approving
comprehensive support and improvement plans and meeting title I
requirements regarding disproportionate assignment of low-income and
minority students to ineffective, out-of-field, or inexperienced
teachers. In addition, the final regulations give States flexibility to
identify the LEAs targeted for resource reviews. Consequently, we
believe that the final regulations regarding State resource reviews
will be minimally burdensome and entail few if any new costs, while
contributing to the development of statewide strategies for addressing
resource inequities that can help improve outcomes for students served
under ESEA programs.
Similarly, Sec. 200.23(b) of the final regulations requires each
State to describe in its State plan the technical assistance it will
provide to each of its LEAs serving a significant number of schools
identified for either comprehensive support and improvement or targeted
support and improvement. The final regulations also specify minimum
requirements for such technical assistance, including how the State
will assist LEAs in developing and implementing comprehensive support
and improvement plans and targeted support and improvement plans,
conducting school-level needs assessments, selecting evidence-based
interventions, and reviewing and addressing resource inequities. We
believe that these requirements related to State-provided technical
assistance to certain LEAs will be better differentiated, more
reflective of State capacity limits, and significantly less burdensome
and costly than previous regulatory requirements related to LEA
improvement and corrective action and the operation of statewide
systems of support for schools and LEAs identified for improvement.
Moreover, given the schools that would be targeted for technical
assistance, most costs could be paid for with the State share of funds
reserved for school improvement under section 1003 of the ESEA, as
amended by the ESSA.
Data Reporting
The ESEA, as amended by the ESSA, expanded reporting requirements
for States and LEAs in order to provide parents, practitioners, policy
makers, and public officials at the Federal, State, and local levels
with actionable data and information on key aspects of our education
system and the students served by that system, but in particular those
students served by ESEA programs. The final regulations implement these
requirements primarily by clarifying definitions and, where possible,
streamlining and simplifying reporting requirements consistent with the
purposes of the ESEA. Although the regulatory changes in Sec. Sec.
200.30 through 200.37 involve new requirements that entail additional
costs for States and LEAs, we believe the costs are reasonable in view
of the potential benefits, which include a more comprehensive picture
of the structure and performance of our education system under the new
law. Importantly, the ESEA, as amended by the ESSA, gives States and
LEAs considerable new flexibility to develop and implement innovative,
evidence-based approaches to addressing local educational needs, and
the final regulations help ensure that the comprehensive data reporting
requirements of the ESEA, as amended by the ESSA, capture the shape and
results of that innovation without imposing unreasonable burdens on
program participants.
The Department estimates that the new data reporting requirements
impose a one-time increased burden of 230 hours per State. Assuming an
average cost of $40 an hour for State staff, we estimate a total one-
time cost of $478,400 for meeting the new State report card
requirements. The Department further estimates that the preparation and
dissemination of LEA report cards will require a new one-time average
burden of 80 hours per respondent in the first year and annual burden
of 10 hours per respondent, resulting in a one-time total burden across
16,970 LEAs of 1,357,600 hours and annual burden of 169,700 hours per
LEA.\32\ Assuming an average cost of $35 an hour for LEA staff, we
estimate the one-time total cost to be $47,516,000 and a total annual
cost of $5,939,500. The annual burden on LEAs for creating and
publishing their report cards remains unchanged at 16 hours per LEA,
posing no additional costs relative to the costs associated with the
previous statutory and regulatory requirements. The Department believes
these additional costs are reasonable for collecting essential
information regarding the students, teachers, schools, and LEAs served
through Federal programs authorized by the ESEA, as amended by the
ESSA, that currently award more than $23 billion annually to States and
LEAs.
---------------------------------------------------------------------------
\32\ 16,790 is, according to NCES data, the total number of
operating school districts of all types, except supervisory unions
and regional education service agencies; including these types would
result in double-counting. We note that the number of LEAs
fluctuates annually.
---------------------------------------------------------------------------
A key challenge faced by States in meeting current report card
requirements has been developing clear, effective formats for the
timely delivery of complex information to a wide range of customers.
Sections 200.30 and 200.31 specify requirements intended to promote
improvements in this area, including a required overview aimed at
ensuring essential information is provided to parents in a manageable,
easy-to-understand format; definitions for key elements; dissemination
options; accessible formats; and deadlines for publication. We believe
the benefits of the final regulations are significant and include
transparency, timeliness, and wide accessibility of data to inform
educational improvement and accountability.
Section 200.32 streamlines reporting requirements related to State
and local accountability systems by permitting States and LEAs to meet
those requirements by referencing or obtaining data from other existing
documents and descriptions created to meet other requirements in the
final regulations. For example, Sec. 200.32 allows States and LEAs to
meet the requirement relating to a description of State accountability
systems through a link to a Web address, rather than trying to condense
a complex, lengthy
[[Page 86216]]
description of a statewide accountability system into an accessible,
easy-to-understand ``report card'' format. Section 200.33 clarifies
calculations and reporting of data on student achievement and other
measures of progress, primarily through modifications to existing
measures and calculations. These changes help ensure that State and
local report cards serve their intended purpose of providing the public
with information on a variety of measures in a State's accountability
system that conveys a complete picture of school, LEA, and State
performance. The final regulations have a key benefit of requiring all
LEA report cards to include results from all State accountability
system indicators for all schools served by the LEA to ensure that
parents, teachers, and other key stakeholders have access to the
information for which schools are held accountable.
A critical new requirement in the ESEA, as amended by the ESSA, is
the collection and reporting of per-pupil expenditures. Section 200.35
includes requirements and definitions aimed at helping States and LEAs
collect and report reliable, accurate, and comparable data on these
expenditures. We believe that these data will be essential in helping
districts meet their obligations under the supplement not supplant
requirement in title I-A, which requires districts to develop a
methodology demonstrating that Federal funds are used to supplement
State and local education funding. In addition, making such data widely
available has tremendous potential to highlight disparities in resource
allocations that can have a significant impact on both the effective
use of Federal program funds and educational opportunity and outcomes
for the students served by ESEA programs. Broader knowledge and
understanding of such disparities among educators, parents, and the
public can lead to a more informed conversation about how to improve
the performance of our education system, and the ESEA, as amended by
the ESSA, highlights the importance of resource allocation
considerations by making them a key component of school improvement
plans, and ultimately improve educational outcomes.
Section 200.36 provides specifications for the newly required
collection of information on student enrollment in postsecondary
education, including definitions of key data elements. Sections 200.34
and 200.37 clarify guidelines for calculating graduation rates and
reporting on educator qualifications, respectively, and reflect a
change to existing reporting requirements in current regulations rather
than new items (e.g., requirements related to the reporting of ``highly
qualified teachers,'' a term that no longer exists in the ESEA, as
amended by the ESSA).
Optional Consolidated State Plans
We believe that the final State plan regulations in Sec. Sec.
299.13 to 299.19 generally do not impose significant costs on States.
As discussed in the Paperwork Reduction Act of 1995 section of this
document, we estimate that, over a three-year period, States will need
on average 1,109 additional hours to carry out the requirements in the
State plan regulations. At $40 per hour, the average additional State
cost associated with these requirements is accordingly an estimated
$44,358, resulting in a total cost across 52 States of $2,306,640. We
expect that States will generally use the Federal education program
funds they reserve for State administration to cover these costs, and
that any costs not met with Federal funds will generally be minimal.
Moreover, the final regulations implement statutory provisions
expressly intended to reduce burden on States by simplifying the
process for applying for Federal education program funds. Section 8302
of the ESEA, as amended by the ESSA, allows States to submit a
consolidated State plan in lieu of multiple State plans for individual
covered programs. The Department anticipates, based on previous
experience, that all States will take advantage of the option in Sec.
299.13 to submit a consolidated State plan, and we believe that the
content areas and requirements for those plans in Sec. Sec. 299.14 to
299.19 are appropriately limited to those needed to ensure that States
and their LEAs provide all children significant opportunity to receive
a fair, equitable, and high-quality education and close achievement
gaps, consistent with the purpose of title I of the ESEA, as amended by
the ESSA. As discussed in detail elsewhere in this notice, in these
final regulations we have revised certain provisions from proposed
Sec. Sec. 299.14 to 299.19 to ensure a limited burden on States
submitting a consolidated State plan, including by eliminating certain
proposed requirements and reducing the amount of information that a
State must provide under other requirements.
Section 8302(a)(1) of the ESEA, as amended by the ESSA, permits the
Department to designate programs for inclusion in consolidated State
plans in addition to those covered by the statute. In Sec. 299.13, the
Department has added to the covered programs the Grants for State
Assessments and Related Activities in section 1201 of title I, part B
of the ESEA, as amended by the ESSA, and the Education for Homeless
Children and Youths program in subpart B of title VII of the McKinney-
Vento Homeless Assistance Act. Inclusion of these programs in a
consolidated State plan will further reduce the burden on States in
applying for Federal education program funds.
In general, the Department believes that the costs of the final
State plan regulations (which are discussed in more detail in the
following paragraphs) are clearly outweighed by their benefits, which
include, in addition to reduced burden on States: Increased flexibility
in State planning, improved stakeholder engagement in plan development
and implementation, better coordination in the use of Federal education
program funds and elimination of funding ``silos,'' and a sustained
focus on activities critical to providing all students with equitable
access to a high-quality education.
Section 299.13 establishes the procedures and timelines for State
plan submission and revision, including requirements for timely and
meaningful consultation with stakeholders that are based on
requirements in titles I, II, and III of the ESEA, as amended by the
ESSA. The Department does not believe that the consultation
requirements impose significant costs on States. We expect that, as
part of carrying out their general education responsibilities, States
will have already developed procedures for notifying the public and for
conducting outreach to, and soliciting input from, stakeholders, as the
regulations require. In the Department's estimation, States will not
incur significant costs in implementing those procedures for the State
plans.
Sections 299.14 to 299.19 establish requirements for the content of
consolidated State plans (i.e., the ``necessary materials'' discussed
in section 8302(b)(3) of the ESEA, as amended by the ESSA). Section
299.14 establishes five content areas of consolidated State plans,
including: Consultation and performance management (the requirements
for which are specified in Sec. 299.15); challenging academic
assessments (Sec. 299.16); accountability, support, and improvement
for schools (Sec. 299.17); supporting excellent educators (Sec.
299.18); and supporting all students (Sec. 299.19). We believe that,
in general, the requirements for these content areas minimize burden on
States insofar as they consolidate duplicative requirements and
eliminate unnecessary
[[Page 86217]]
requirements from State plans for individual covered programs.
Section 299.15 requires States to describe how they engaged in
timely and meaningful consultation with specified stakeholder groups in
consolidated State plan development. We estimate that the costs of
complying with the requirements in this section are minimal.
Section 299.16 requires States to describe how they are complying
with requirements related to assessments in languages other than
English, consistent with section 1111(b)(2)(F) of the ESEA, as amended
by the ESSA. In addition, for a State that exempts an eighth-grade
student from taking the mathematics assessment the State typically
administers in eighth grade because the student takes an end-of-course
mathematics assessment that is used by the State to meet high school
assessment requirements, Sec. 299.16 requires the State to describe
how the State is complying with the requirements of section
1111(b)(2)(c) of the ESEA, as amended by the ESSA, and applicable
regulations. The Department believes that the costs to States of
complying with these requirements are likewise minimal.
The Department believes that the requirements in Sec. Sec. 299.17
and 299.18 similarly do not involve significant new costs for most
States. Section 299.17 establishes consolidated State plan requirements
for describing the State's long-term goals, statewide accountability
system, school identifications, and support for low-performing schools,
consistent with the requirements in section 1111(c) and (d) of the
ESEA, as amended by the ESSA. Section 299.18 requires a State to
describe, consistent with requirements in sections 1111(g), 2101, and
2102 of the ESEA, as amended by the ESSA: Educator development,
retention, and advancement practices in the State, if the State intends
to use Federal education program funds to support such practices; how
the State will use Federal education program funds for State-level
activities to improve educator quality and effectiveness; and whether
low-income and minority students in title I-participating schools are
taught at higher rates by ineffective, out-of-field, or inexperienced
teachers compared to their peers, including the likely causes of any
differences in rates and strategies to eliminate those differences. The
Department anticipates that, in complying with Sec. Sec. 299.17 and
299.18, States will rely to a significant degree on existing State ESEA
flexibility requests and Educator Equity Plans. Accordingly, the final
regulations should generally not result in significant new costs for
States.
Finally, Sec. 299.19 requires States to describe how they will use
Federal education program funds to provide all students equitable
access to a well-rounded and supportive education, and includes
program-specific requirements necessary to ensure that such access is
provided to particularly vulnerable student groups, including migratory
students, neglected and delinquent children and youths, English
learners, and homeless children and youths. We believe that the
requirements in this section would accomplish this purpose with minimal
burden on, and cost to, States, consistent with section 8302(b)(3) of
the ESEA, as amended by the ESSA.
The major benefit of these regulations, taken in their totality, is
a more flexible, less complex, and costly accountability framework for
the implementation of the ESEA that respects State and local decision-
making while continuing to ensure that States and LEAs use ESEA funds
to ensure that all students have significant opportunity to receive a
fair, equitable, and high-quality education, and to close educational
achievement gaps.
Accounting Statement
As required by OMB Circular A-4 (available at www.whitehouse.gov/sites/default/files/omb/assets/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
these final regulations. This table provides our best estimate of the
changes in annual monetized costs and benefits as a result of the final
regulations. The transfers reflect appropriations for the affected
programs. We note that the regulatory baselines differ within the
table; the cost estimates are increments over and above what would be
spent under the ESEA if it had not been amended by the ESSA, whereas
the transfers (appropriations) are totals, rather than increments
relative to the ESEA. We further note that, although we refer to
appropriations amounts as transfers, where they pay for new activities
they would appropriately be categorized as costs.
Accounting Statement Classification of Estimated Expenditures
------------------------------------------------------------------------
Category Benefits
------------------------------------------------------------------------
More flexible and less complex and costly Not Quantified.
accountability framework with uniform
procedures.
More transparency and actionable data and Not Quantified.
information with uniform definitions, all of
which provide a more comprehensive picture
of performance and other key measures.
Less burden on States through simplified Not Quantified
process for applying and planning for
Federal education program funds.
Category..................................... Costs (over 4-year
authorization).
Uniform procedure for setting long-term goals $166,400.
and measurements of interim progress for
English learners.
Review and approval of LEA comprehensive 4,800,000.
support and improvement plans.
State Report Cards........................... 478,400.
LEA Report Cards............................. 65,334,500.
Consolidated State Plans..................... 2,306,640.
Category..................................... Transfers (over 4-year
authorization; based on
FY 2016 appropriations).
Title I, part A: Improving Basic Programs 59,639,208,000.
Operated by State and Local Educational
Agencies.
Title I, part B: Grants for State Assessments 1,512,000,000.
Title I, part C: Education of Migratory 1,499,004,000.
Children.
Title I, part D: Prevention and Intervention 190,456,000.
Programs for Children and Youth Who Are
Neglected, Delinquent, or At-Risk.
Title II, part A: Supporting Effective 9,399,320,000.
Instruction.
Title III, part A: Language Instruction for 2,949,600,000.
English Learners and Immigrant Students.
Title IV, part A: Student Support and 6,450,000,000 (no FY 2016
Academic Enrichment Grants. funding; reflects
authorization of
appropriations).
[[Page 86218]]
Title IV, part B: 21st Century Community 4,666,692,000.
Learning Centers.
Title V, part B, subpart 2: Rural and Low- 351,680,000.
Income School Program.
Education for Homeless Children and Youths 280,000,000.
program under subtitle B of title VII of the
McKinney-Vento Homeless Assistance Act.
------------------------------------------------------------------------
Unfunded Mandates Reform Act
Under the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531), an
agency must assess the effects of its regulatory actions on State,
local, and tribal governments. The Department has set forth that
assessment in the Regulatory Impact Analysis section of this document.
Section 1532 of the UMRA also requires that an agency provide a written
statement regarding any regulation that would involve a Federal
mandate. These final regulations do not involve a Federal mandate as
defined in section 658 of UMRA because the duties imposed upon State,
local, or tribal governments in these regulations are a condition of
those governments' receipt of Federal formula grant funds under the
ESEA.
Regulatory Flexibility Act Certification
The Secretary certifies that these final requirements would not
have a significant economic impact on a substantial number of small
entities. Under the U.S. Small Business Administration's Size
Standards, small entities include small governmental jurisdictions such
as cities, towns, or school districts (LEAs) with a population of less
than 50,000. Although the majority of LEAs that receive ESEA funds
qualify as small entities under this definition, the requirements
established in this document would not have a significant economic
impact on these small LEAs because the costs of implementing these
requirements would be covered by funding received by these small LEAs
under ESEA formula grant programs, including programs that provide
funds largely for such small LEAs (e.g., the Rural and Low-Income
School program authorized under subpart 2 of part B of title V). The
Department believes the benefits provided under this final regulatory
action outweigh the burdens on these small LEAs of complying with the
final requirements. However, one commenter disagreed that that the
final regulations would not have significant economic impact on small
entities. This commenter specifically cited the requirement for
assessment rate improvement plans in Sec. 200.15(c)(1) for schools
that do not meet the 95 percent participation rate requirement,
claiming that such plans may be costly to develop and implement while
acknowledging that Federal program funds are available to pay such
costs. In addition to the fact that Federal funds may be used to pay
any costs associated with assessment rate improvement plans, we note
that such costs typically would be commensurate with the size and
enrollment of an LEA, and thus reasonably would be expected to be lower
for small entities. Further, the costs and other burdens associated
with assessment rate improvement plans are likely to be significantly
lower than the costs of Federal or State compliance remedies that
otherwise could be required for small LEAs that do not meet the 95
percent participation rate requirements in section 1111(c)(4)(E) of the
ESEA, as amended by the ESSA. Consequently, the final requirements,
including Sec. 200.15, would help ensure that State plans for using
ESEA formula grant funds, as well as State-provided technical
assistance and other support intended to promote the effective and
coordinated use of Federal, State, and local resources in ensuring that
all students meet challenging State standards and graduate high school
college- and career-ready, reflect the unique needs and circumstances
of small LEAs and ensure the provision of educational resources that
otherwise may not be available to small and often geographically
isolated LEAs.
Paperwork Reduction Act of 1995
Sections 200.21, 200.22, 200.24, 200.30, 200.31, 200.32, 200.33,
200.34, 200.35, 200.36, 200.37, 299.13, 299.14, 299.15, 299.16, 299.17,
299.18, and 299.19 of the final regulations contain information
collection requirements that will impact the burden and costs
associated with two currently approved information collections, 1810-
0581 and 1810-0576. Under the Paperwork Reduction Act of 1995 (PRA) the
Department submitted a copy of these sections to OMB for its review.
These changes were described in the NPRM and subject to comments at
that time. One commenter acknowledged that the proposed regulations
affected the information collections, and agreed that the proposed
regulations would reduce some existing burden. A second commenter
indicated that the burden estimates were too low, but did not provide
specific suggestions for improving the estimates. We continue to
believe these burden hour estimates to be accurate, and in the absence
of specific feedback, decline to make changes. Another commenter
specifically noted that the estimated reporting burden of 230 hours for
State report cards was too low. We agree with this commenter that the
burden on States for preparing report cards is higher than 230 hours.
When describing the burden hours in the NPRM, we described these hours
in relation to the current approved burden under the relevant
information collections, and we estimated an increase of 230 burden
hours, in addition to the already approved burden hours. For clarity,
we describe the total estimated burden below.
Collection of Information From SEAs--Report Cards; Collection of
Information From LEAs--Report Cards and Public Reporting
Section 1111(h) of the ESEA, as amended by the ESSA, requires
States and LEAs to prepare and disseminate annual report cards; these
report cards provide essential information to school communities
regarding activities under title I of the ESEA. Sections 200.30-200.37
of the final regulations further require States and LEAs to include
specific elements on the report cards. These information collection
requirements will impact the burden and costs associated with
information collection 1810-0581, State Educational Agency, Local
Educational Agency, and School Data Collection and Reporting Under
ESEA, Title I, Part A, under which the Department is approved to
require States and LEAs to collect and disseminate information. The
estimated burden for this collection remains unchanged from the NPRM.
Under Sec. Sec. 200.30 through 200.37, States are required to
annually prepare and disseminate a State report card, including
specific elements. Among other things, each State must describe its
accountability system in the report card, create and publish a report
card overview, and ensure that the report
[[Page 86219]]
cards are accessible. To ensure that States can report on all required
elements, States will be required to adjust their data systems, and
some States may need to submit a plan requesting an extension of the
deadline to include certain date elements.
On an annual basis, we continue to estimate that each State will
devote 370 hours to preparing and disseminating the State report card,
and making it accessible; across all States, this will result in an
annual burden of 19,240 hours. We anticipate that each State will
devote 80 hours to creating and preparing a State report card overview,
one time. During the three-year information collection period, this
will result in an annual burden of 26.67 hours for each State; across
all States, this will result in an annual burden of 1,387 hours. We
expect that 15 States may need to request an extension to report
certain required data elements on behalf of the State or its LEAs, and
that such request will take 50 hours to prepare. Over the three-year
information collection period, this will result in an annual burden of
16.66 hours for each affected State, resulting in an annual burden of
250 hours across all States. Each State must annually include a
description of its accountability system in the report card; we
anticipate that this will result in an annual burden of 10 hours for
each State, resulting in an annual burden of 520 hours across all
States. Finally, we anticipate that each State will have to make a one-
time adjustment to its data collection system, to report on required
data elements under Sec. Sec. 200.32 through 200.37. We expect that
this adjustment will require 120 hours for each State; over the three-
year information collection period, this will result in an annual
burden of 40 hours, and a total burden for all States of 2080 hours.
Annual Collection of Information From SEAs: Report Cards
----------------------------------------------------------------------------------------------------------------
Average hours Total cost
Citation Description Respondents per Total hours (total hours x
respondent $40)
----------------------------------------------------------------------------------------------------------------
Section 1111(h)(1); Sec. Prepare and 52 370 19,240 $769,600
200.24(e); Sec. 200.30. disseminate the
State report
card, and make
it accessible.
This includes
posting the
report card on
the Web site
alongside the
annual report
to the
Secretary
required in
Sec.
200.30(d)(ii)(B
). Except as
described
below, this
includes all
requirements
under section
1111(h) of the
ESEA and all
pre-existing
requirements..
Sec. 200.30(b)(2)........... Create and 52 26.67 1,386.67 55,467
publish a State
report card
overview.
Sec. Sec. 200.30(e)(3); Request an 15 16.67 250 10,000
200.31(e)(3). extension.
Sec. Sec. 200.32(a); Describe the 52 10.00 520 20,800
200.32(b). accountability
system in the
report card.
Sec. Sec. 200.32(c); Describe the 52 40.00 2,080 83,200
200.33; 200.34; 200.35; accountability
200.36; 200.37. system results
in the report
card, and
adjust the data
system to
report on all
of the elements
required under
these sections
of the
regulations.
---------------------------------------------------------------
Total..................... ................ .............. .............. 23,476.67 939,067
----------------------------------------------------------------------------------------------------------------
Similarly, we have not adjusted the estimated burden arising from
the development and release of the LEA report card, or the estimated
burden for LEAs with schools identified for comprehensive or targeted
support and improvement to notify parents of the identification, or
make publicly available plans for improvement. We continue to estimate
that each LEA, on average, will devote 30 hours across the three-year
information collection period, or 10 hours annually, to notifying
parents that schools have been identified, and to make publically
available the resulting plans. In total, for 16,970 LEAs, this results
in an annual burden of 169,700 hours. We expect that each LEA will
devote 16 hours to preparing and disseminating the LEA report card each
year, for a total burden of 271,520 hours across all LEAs. We
anticipate that each LEA will devote 80 hours to creating and preparing
an LEA report card overview, one time. During the three-year
information collection period, this will result in an annual burden of
26.67 hours for each LEA; across all LEAs, this will result in an
annual burden of 452,533 hours. Finally, all LEAs will be required to
revise their report cards to report on new elements required under the
ESEA, as amended by the ESSA, as well as the regulations in Sec. Sec.
200.30 through 200.37. However, we expect that these adjustments will
be addressed through modifications to the State data collection
systems, and therefore do not expect these changes to impose additional
burden hours on LEAs.
[[Page 86220]]
Annual Collection of Information From LEAs: Report Cards and Public Reporting
----------------------------------------------------------------------------------------------------------------
Total cost
Citation Description Respondents Average hours Total hours (total hours x
per respondent $35)
----------------------------------------------------------------------------------------------------------------
Sec. Sec. 200.21(b); LEAs with 16,970 10 169,700 $5,939,500
200.21(d)(6); 200.22(b); schools
200.22(d)(2). identified for
comprehensive
or targeted
support and
improvement
must make
publicly
available the
resulting plans
and any
amendments to
these plans,
and notify
parents of the
identification.
Section 1111(h)(2); Sec. Prepare and 16,970 16 271,520 9,503,200
200.31. disseminate the
LEA report
card, and make
it accessible.
Except as
described
below, this
includes all
requirements
under section
1111(h) of the
ESEA and all
pre-existing
requirements.
Sec. 200.31(b)(2)........... Create and 16,970 26.67 452,533 15,838,667
publish the LEA
report card
overview.
Sec. Sec. 200.32; 200.33; Describe the 16,970 0 0 0
200.34; 200.35; 200.36; accountability
200.37. system and
results on the
LEA report card.
---------------------------------------------------------------
Total..................... ................ .............. .............. 893,753.33 31,281,367
----------------------------------------------------------------------------------------------------------------
Consolidated State Application
Under information collection 1810-0576, Consolidated State
Application, the Department is currently approved to collect
information from States. As proposed in the NPRM, we will replace the
previously authorized consolidated State application with the
consolidated State plan, authorized under section 8302 of the ESEA, as
amended by the ESSA. The consolidated State plan seeks to encourage
greater cross-program coordination, planning, and service delivery;
enhance program integration; and provide greater flexibility, and
reduce burden, for States. We will use the information from the
consolidated State plan as the basis for approving funding under the
covered programs.
Section 299.13 permits a State to submit a consolidated State plan,
instead of individual program applications. States may choose not to
submit consolidated State plans; however, for purposes of estimating
the burden, we assume all States will choose to submit consolidated
State plans. Each consolidated State plan must meet the requirements
described in Sec. Sec. 299.14 to 299.19. In the NPRM, we estimated the
total annual burden for the collection of information through the
submission of consolidated State plans to be 23,200 hours. Based upon
revisions to the requirements of the consolidated State plan, and
efforts to reduce burden on States, we now revise the estimates as
detailed below.
Each State submitting a consolidated State plan will be required to
describe consultation with stakeholders; provide assurances; report on
performance management and technical assistance; describe how the State
is complying with requirements relating to assessments in languages
other than English; report on accountability, support, and improvement
for schools; report on supporting excellent educators; and report on
equitable access and support for schools. In total, over the three-year
information collection period, we anticipate that each State will
devote 993 hours to the preparation and submission of these plans,
resulting in a total annual burden of 17,212 hours.
Additionally, we estimate that each State, on average, will amend
its request once during the three-year information collection period,
and will devote 60 hours to preparing this amendment. This amendment
process will result in a total annual burden of 1,040 hours, across all
States.
We further expect that 16 States will submit plans to apply for
extensions for the required educator equity student-level data
calculation, and that each State submitting a plan and extension
request will devote 60 hours to this process. Over the three-year
information collection period, we expect that this will result in an
annual burden of 20 hours for 16 States, or 320 total burden hours.
Finally, certain States will be required to describe their
strategies for middle school math equity. We estimate that 26 States
will be required to address these strategies, and will devote 75 hours
to describing these strategies in the State plan. Over the three-year
information collection period, we expect that this will result in an
annual burden of 25 hours for 25 States, or 650 total burden hours.
Annual Collection of Information from SEAs: Consolidated State Plan
----------------------------------------------------------------------------------------------------------------
Total cost
Citation Description Respondents Hours per Total hours (total hours x
respondent $40)
----------------------------------------------------------------------------------------------------------------
Sec. Sec. 299.13(a); Submit 52 10 520 20,800
299.13(d)(2); 299.13(e); consolidated
299.13(h); 299.13(k). State plan or
individual
program State
plans; submit
optional
revisions to
State plans.
[[Page 86221]]
Sec. Sec. 299.13(a); Report on 52 40 2080 83,200
299.13(b); 299.14(b); meaningful
299.15(a). consultation
with
stakeholders,
including
public comment.
Sec. Sec. 299.13(a); Provide 52 1 52 2,080
299.13(c); 299.13(d)(1); assurances.
299.14(c).
Sec. Sec. 299.13(a); Submit 52 20 1040 41,600
299.13(g). amendments and
significant
changes, as
well as
revisions, as
appropriate.
Sec. Sec. 299.13(a); Submit a plan to 16 20 320 12,800
299.13(d)(3). apply for an
extension for
the educator
equity student-
level data
calculation.
Sec. 299.13(f).............. Publish approved 52 5 260 10,400
consolidated
State plan or
individual
program State
plans on State
website.
Sec. Sec. 299.13(a); Report on 52 50 2600 104,000
299.13(d)(2); 299.15(b). performance
management and
technical
assistance.
Sec. Sec. 299.13(a); Describe 26 25 650 26,000
299.16(a). strategies for
middle school
math equity.
Sec. Sec. 299.13(a); Describe how the 52 25 1300 52,000
299.16(b). State is
complying with
the
requirements
related to
assessments in
languages other
than English.
Sec. Sec. 299.13(a); Report on 52 150 7800 312,000
299.14(b(3); 299.17. accountability
support and
improvement for
schools.
Sec. Sec. 299.13(a); Report on 52 25 1300 52,000
299.14(b)(4); 299.18. supporting
excellent
educators.
Sec. Sec. 299.13(a); Report on 52 25 1300 52,000
299.14(b)(5); 299.19. equitable
access and
support for
students.
---------------------------------------------------------------
Total..................... ................ .............. .............. 19222 768,880
----------------------------------------------------------------------------------------------------------------
The PRA does not require you to respond to a collection of
information unless it displays a valid OMB control number. We display
the valid OMB control number assigned to the collections of information
in these final regulations at the end of the affected section of the
regulations.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., Braille, large print, or
electronic format) on request to the person listed under FOR FURTHER
INFORMATION CONTACT.
Electronic Access to This Document: 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 via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Portable Document Format (PDF). To use PDF you
must have Adobe Acrobat Reader, which is available free at the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department. (Catalog of Federal Domestic Assistance Number does
not apply.)
List of Subjects
34 CFR Part 200
Elementary and secondary education, Grant programs--education,
Indians--education, Infants and children, Juvenile delinquency, Migrant
labor, Private schools, Reporting and recordkeeping requirements.
34 CFR Part 299
Administrative practice and procedure, Elementary and secondary
education, Grant programs--education, Private schools, Reporting and
recordkeeping requirements.
Dated: November 16, 2016.
John B. King, Jr.,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary of
Education amends parts 200 and 299 of title 34 of the Code of Federal
Regulations as follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 is revised to read as follows:
Authority: 20 U.S.C. 6301 through 6376, unless otherwise noted.
Sec. 200.7 [Removed and Reserved]
0
2. Remove and reserve Sec. 200.7.
0
3. Section 200.12 is revised to read as follows:
[[Page 86222]]
Sec. 200.12 Single statewide accountability system.
(a)(1) Each State must describe in its State plan under section
1111 of the Act that the State has developed and will implement a
single, statewide accountability system that meets all requirements
under paragraph (b) of this section in order to improve student
academic achievement and school success among all public elementary and
secondary schools, including public charter schools.
(2) A State that submits an individual program State plan for
subpart A of this part under Sec. 299.13(j) must meet all application
requirements in Sec. 299.17.
(b) The State's accountability system must--
(1) Be based on the challenging State academic standards under
section 1111(b)(1) of the Act and academic assessments under section
1111(b)(2) of the Act;
(2) Be informed by the State's ambitious long-term goals and
measurements of interim progress under Sec. 200.13;
(3) Include all indicators under Sec. 200.14;
(4) Take into account the achievement of all public elementary and
secondary school students, consistent with Sec. Sec. 200.15 through
200.17 and 200.20;
(5) Be the same accountability system the State uses to annually
meaningfully differentiate all public schools, including public charter
schools, in the State under Sec. 200.18, and to identify schools for
comprehensive and targeted support and improvement under Sec. 200.19;
and
(6) Include the process the State will use to ensure effective
development and implementation of school support and improvement plans,
including evidence-based interventions, to hold all public schools,
including public charter schools, accountable for student academic
achievement and school success consistent with Sec. Sec. 200.21
through 200.24.
(c)(1) The accountability provisions under this section must be
overseen for public charter schools in accordance with State charter
school law.
(2) In meeting the requirements of this section, if an authorized
public chartering agency, consistent with State charter school law,
acts to decline to renew or to revoke a charter for a particular
charter school, the decision of the agency to do so supersedes any
notification from the State that such a school must implement a
comprehensive support and improvement plan or targeted support and
improvement plan under Sec. Sec. 200.21 or 200.22, respectively.
(Authority: 20 U.S.C. 6311(c); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
0
4. Remove the undesignated center heading ``Adequate Yearly Progress
(AYP)'' following Sec. 200.12.
0
5. Section 200.13 is revised to read as follows:
Sec. 200.13 Long-term goals and measurements of interim progress.
In designing its statewide accountability system under Sec.
200.12, each State must establish long-term goals and measurements of
interim progress that use the same multi-year timeline to achieve those
goals for all students and for each subgroup of students, except that
goals for Progress in Achieving English language proficiency must only
be established for the English learner subgroup. The long-term goals
and measurements of interim progress must include, at a minimum, each
of the following:
(a) Academic achievement. (1) Each State must, in its State plan
under section 1111 of the Act--
(i) Identify its ambitious State-designed long-term goals and
measurements of interim progress for improved academic achievement, as
measured by the percentage of students attaining grade-level
proficiency on the annual assessments required under section
1111(b)(2)(B)(v)(I) of the Act, for all students and separately for
each subgroup of students described in Sec. 200.16(a)(2); and
(ii) Describe how it established those goals and measurements of
interim progress.
(2) In establishing the long-term goals and measurements of interim
progress under paragraph (a)(1) of this section, a State must--
(i) Apply the same academic achievement standards consistent with
section 1111(b)(1) of the Act to all public school students in the
State, except as provided for students with the most significant
cognitive disabilities, whose performance under subpart A of this part
may be assessed against alternate academic achievement standards
defined by the State consistent with section 1111(b)(1)(E) of the Act;
(ii) Measure achievement separately for reading/language arts and
for mathematics; and
(iii) Take into account the improvement necessary for each subgroup
of students described in Sec. 200.16(a)(2) to make significant
progress in closing statewide proficiency gaps, such that the State's
measurements of interim progress require greater rates of improvement
for subgroups of students that are lower-achieving.
(b) Graduation rates. (1) Each State must, in its State plan under
section 1111 of the Act--
(i) Identify its ambitious State-designed long-term goals and
measurements of interim progress for improved graduation rates for all
students and separately for each subgroup of students described in
Sec. 200.16(a)(2); and
(ii) Describe how it established those goals and measurements of
interim progress.
(2) A State's long-term goals and measurements of interim progress
under paragraph (b)(1) of this section must be based on--
(i) The four-year adjusted cohort graduation rate consistent with
Sec. 200.34(a); and
(ii) If a State chooses to use an extended-year adjusted cohort
graduation rate as part of its Graduation Rate indicator under Sec.
200.14(b)(3), the extended-year adjusted cohort graduation rate
consistent with Sec. 200.34(d), except that a State must set more
rigorous long-term goals and measurements of interim progress for each
such graduation rate, as compared to the long-term goals and
measurements of interim progress for the four-year adjusted cohort
graduation rate.
(3) In establishing the long-term goals and measurements of interim
progress under paragraph (b)(1) of this section, a State must take into
account the improvement necessary for each subgroup of students
described in Sec. 200.16(a)(2) to make significant progress in closing
statewide graduation rate gaps, such that a State's measurements of
interim progress require greater rates of improvement for subgroups
that graduate high school at lower rates.
(c) English language proficiency. (1) Each State must, in its State
plan under section 1111 of the Act--
(i) Identify its ambitious State-designed long-term goals and
measurements of interim progress for increases in the percentage of all
English learners in the State making annual progress toward attaining
English language proficiency, as measured by the English language
proficiency assessment required in section 1111(b)(2)(G) of the Act;
and
(ii) Describe how it established those goals and measurements of
interim progress.
(2) Each State must describe in its State plan under section 1111
of the Act a uniform procedure, applied to all English learners in the
State in a
[[Page 86223]]
consistent manner, to establish research-based student-level targets on
which the goals and measurements of interim progress under paragraph
(c)(1) of this section are based. The State-developed uniform procedure
must--
(i) Take into consideration, at the time of a student's
identification as an English learner, the student's English language
proficiency level, and may take into consideration, at a State's
discretion, one or more of the following student characteristics:
(A) Time in language instruction educational programs.
(B) Grade level.
(C) Age.
(D) Native language proficiency level.
(E) Limited or interrupted formal education, if any;
(ii) Based on the selected student characteristics under paragraph
(c)(2)(i) of this section, determine the applicable timeline, up to a
State-determined maximum number of years, for English learners sharing
particular characteristics under paragraph (c)(2)(i) of this section to
attain English language proficiency after a student's identification as
an English learner; and
(iii) Establish student-level targets, based on the applicable
timelines under paragraph (c)(2)(ii) of this section, that set the
expectation for all English learners to make annual progress toward
attaining English language proficiency within the applicable timelines
for such students.
(3) The description under paragraph (c)(2) of this section must
include a rationale for how the State determined the overall maximum
number of years for English learners to attain English language
proficiency in its uniform procedure for setting research-based
student-level targets, and the applicable timelines over which English
learners sharing particular characteristics under paragraph (c)(2)(i)
of this section would be expected to attain English language
proficiency within such State-determined maximum number of years.
(4) An English learner who does not attain English language
proficiency within the timeline under paragraph (c)(2)(ii) of this
section must not be exited from English learner services or status
prior to attaining English language proficiency.
(Authority: 20 U.S.C. 6311(c); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
0
6. Section 200.14 is revised to read as follows:
Sec. 200.14 Accountability indicators.
(a) In its statewide accountability system under Sec. 200.12, each
State must, at a minimum, include four distinct indicators for each
school that--
(1) Except for the indicator under paragraph (b)(4) of this
section, measure performance for all students and separately for each
subgroup of students described in Sec. 200.16(a)(2); and
(2) Use the same measures within each indicator for all schools in
the State, except as provided in paragraph (c)(2) of this section.
(b) A State must annually measure the following indicators
consistent with paragraph (a) of this section:
(1) For all schools, based on the long-term goals established under
Sec. 200.13(a), an Academic Achievement indicator, which--
(i) Must include the following:
(A) A measure of student performance on the annual reading/language
arts and mathematics assessments required under section
1111(b)(2)(B)(v)(I) of the Act at the proficient level on the State's
grade-level academic achievement standards consistent with section
1111(b)(1) of the Act, except that students with the most significant
cognitive disabilities may be assessed in those subjects against
alternate academic achievement standards defined by the State
consistent with section 1111(b)(1)(E) of the Act; and
(B) The performance of at least 95 percent of all students and 95
percent of all students in each subgroup consistent with Sec.
200.15(b)(1); and
(ii) May include the following:
(A) In addition to a measure of student performance under paragraph
(b)(2)(i)(A) of this section, measures of student performance on such
assessments above or below the proficient level on such achievement
standards so long as--
(1) A school receives less credit for the performance of a student
who is not yet proficient than for the performance of a student who has
reached or exceeded proficiency; and
(2) The credit the school receives from the performance of a
student exceeding the proficient level does not fully compensate for
the performance of a student who is not yet proficient in the school;
and
(B) For high schools, student growth based on the reading/language
arts and mathematics assessments required under section
1111(b)(2)(B)(v)(I) of the Act.
(2) For elementary and secondary schools that are not high schools,
an Academic Progress indicator, which must include either--
(i) A measure of student growth based on the annual assessments
required under section 1111(b)(2)(B)(v)(I) of the Act; or
(ii) Another academic measure that meets the requirements of
paragraph (c) of this section.
(3) For high schools, based on the long-term goals established
under Sec. 200.13(b), a Graduation Rate indicator, which--
(i) Must measure the four-year adjusted cohort graduation rate
consistent with Sec. 200.34(a); and
(ii) May measure, at the State's discretion, the extended-year
adjusted cohort graduation rate consistent with Sec. 200.34(d).
(4) For all schools, a Progress in Achieving English Language
Proficiency indicator, based on English learner performance on the
annual English language proficiency assessment required under section
1111(b)(2)(G) of the Act in at least each of grades 3 through 8 and in
grades for which English learners are otherwise assessed under section
1111(b)(2)(B)(v)(I)(bb) of the Act, that--
(i) Uses objective and valid measures of student progress on the
assessment, comparing results from the current school year to results
from the previous school year, such as student growth percentiles;
(ii) Is aligned with the applicable timelines, within the State-
determined maximum number of years, under Sec. 200.13(c)(2) for each
English learner to attain English language proficiency after the
student's identification as an English learner; and
(iii) May also include a measure of proficiency (e.g., an increase
in the percentage of English learners scoring proficient on the English
language proficiency assessment required under section 1111(b)(2)(G) of
the Act compared to the prior year).
(5) One or more indicators of School Quality or Student Success
that meets the requirements of paragraph (c) of this section, which may
vary by each grade span and may include one or more of the following:
(i) Student access to and completion of advanced coursework.
(ii) Postsecondary readiness.
(iii) School climate and safety.
(iv) Student engagement.
(v) Educator engagement.
(vi) Any other indicator the State chooses that meets the
requirements of paragraph (c) of this section.
(c) A State must demonstrate in its State plan under section 1111
of the Act that each measure it selects to include within any indicator
under this section--
(1) Is valid, reliable, and comparable across all LEAs in the
State;
(2) Is calculated in the same way for all schools across the State,
except that
[[Page 86224]]
measures within the indicator of Academic Progress and within any
indicator of School Quality or Student Success may vary by each grade
span; and
(3) For all indicators except the Progress in Achieving English
Language Proficiency indicator, is able to be disaggregated for each
subgroup of students described in Sec. 200.16(a)(2).
(d) A State must demonstrate in its State plan under section 1111
of the Act that each measure it selects to include within the
indicators of Academic Progress and School Quality or Student Success
is supported by research that high performance or improvement on such
measure is likely to increase student learning (e.g., grade point
average, credit accumulation, performance in advanced coursework), or,
for a measure within indicators at the high school level, graduation
rates, postsecondary enrollment, postsecondary persistence or
completion, or career readiness.
(e) A State must demonstrate in its State plan under section 1111
of the Act that each measure it selects to include within the
indicators of Academic Progress and School Quality or Student Success
aids in the meaningful differentiation of schools under Sec. 200.18 by
demonstrating varied results across schools in the State.
(Authority: 20 U.S.C. 6311(c); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
0
7. Section 200.15 is revised to read as follows:
Sec. 200.15 Participation in assessments and annual measurement of
achievement.
(a)(1) To meet the requirements for academic assessments under
section 1111(b)(2) of the Act, each State must administer the academic
assessments required under section 1111(b)(2)(B)(v) of the Act to all
public elementary school and secondary school students in the State and
provide for the participation of all such students in those
assessments.
(2) For purposes of the statewide accountability system under
section 1111(c) of the Act, each State must annually measure the
achievement of at least 95 percent of all students, and 95 percent of
all students in each subgroup of students described in Sec.
200.16(a)(2), who are enrolled in each public school on the assessments
required under section 1111(b)(2)(B)(v)(I) of the Act.
(3) Each State must measure participation rates under paragraph
(a)(2) of this section separately in reading/language arts and
mathematics.
(b) For purposes of annual meaningful differentiation under Sec.
200.18 and identification of schools under Sec. 200.19, a State must--
(1) Annually calculate any measure in the Academic Achievement
indicator under Sec. 200.14(b)(1) so that the denominator of such
measure, for all students and for all students in each subgroup,
includes the greater of--
(i) 95 percent of all such students in the grades assessed who are
enrolled in the school; or
(ii) The number of all such students enrolled in the school who
participated in the assessments required under section
1111(b)(2)(B)(v)(I) of the Act; and
(2) Factor the requirement for 95 percent student participation in
assessments under paragraph (a)(2) of this section into its system of
annual meaningful differentiation so that missing such requirement, for
all students or for any subgroup of students in a school, results in at
least one of the following actions:
(i) A lower summative determination in the State's system of annual
meaningful differentiation under Sec. 200.18(a)(4).
(ii) The lowest performance level on the Academic Achievement
indicator in the State's system of annual meaningful differentiation
under Sec. 200.18(a)(2).
(iii) Identification for, and implementation of, a targeted support
and improvement plan consistent with the requirements under Sec.
200.22.
(iv) Another State-determined action or set of actions described in
its State plan under section 1111 of the Act that is sufficiently
rigorous to improve the school's participation rate so that the school
meets the requirements under paragraph (a) of this section.
(c) To support the State in meeting the requirements of paragraph
(a) of this section--
(1) A school that fails to assess at least 95 percent of all
students or 95 percent of each subgroup of students in any year must
develop and implement an improvement plan that--
(i) Is developed in partnership with stakeholders (including
principals and other school leaders; teachers; and parents and, as
appropriate, students);
(ii) Includes one or more strategies to address the reason or
reasons for low participation rates in the school and improve
participation rates in subsequent years;
(iii) Is reviewed and approved by the LEA prior to implementation;
and
(iv) Is monitored, upon submission and implementation, by the LEA;
and
(2) An LEA with a significant number or percentage of schools that
fail to assess at least 95 percent of all students or 95 percent of
each subgroup of students in any year must develop and implement an
improvement plan that includes additional actions to support effective
implementation of the school-level plans developed under paragraph
(c)(1) of this section and that is reviewed and approved by the State.
(3) If a State chooses to identify a school for, and require
implementation of, a targeted support and improvement plan under
paragraph (b)(2)(iii) of this section, the requirement for such a
school to develop and implement a targeted support and improvement plan
consistent with Sec. 200.22 fulfills the requirements of this
paragraph.
(d)(1) A State must provide a clear and understandable explanation
of how it has met the requirements of paragraph (b) of this section in
its State plan under section 1111 of the Act and in its description of
the State's system for annual meaningful differentiation of schools on
its State report card pursuant to section 1111(h)(1)(C)(i)(IV) of the
Act.
(2) A State, LEA, or school may not systematically exclude
students, including any subgroup of students described in Sec.
200.16(a), from participating in the assessments required under section
1111(b)(2)(B)(v) of the Act.
(3) To count a student who is assessed based on alternate academic
achievement standards described in section 1111(b)(1)(E) of the Act as
a participant for purposes of meeting the requirements of this section,
the State must have guidelines that meet the requirements described in
section 1111(b)(2)(D)(ii) of the Act and must ensure that its LEAs
adhere to such guidelines.
(4) Consistent with Sec. 200.16(c)(3)(i)(A), a State may count a
recently arrived English learner as defined in section 1111(b)(3)(A) of
the Act as a participant in the State assessment in reading/language
arts for purposes of meeting the requirements in paragraph (a) of this
section if he or she takes either the State's English language
proficiency assessment under section 1111(b)(2)(G) of the Act or
reading/language arts assessment under section 1111(b)(2)(B)(v)(I) of
the Act.
(Authority: 20 U.S.C. 6311(b)-(c); 20 U.S.C. 6571(a); 20 U.S.C.
1221e-3; 20 U.S.C. 3474)
0
8. Section 200.16 is revised to read as follows:
Sec. 200.16 Subgroups of students.
(a) In general. In establishing long-term goals and measurements of
interim progress under Sec. 200.13, measuring performance on each
indicator under Sec. 200.14, annually meaningfully differentiating
schools under Sec. 200.18,
[[Page 86225]]
and identifying schools under Sec. 200.19, each State must include the
following categories of students consistent with the State's minimum
number of students under Sec. 200.17(a)(1):
(1) All public school students.
(2) Each of the following subgroups of students, separately:
(i) Economically disadvantaged students.
(ii) Students from each major racial and ethnic group.
(iii) Children with disabilities, as defined in section 8101(4) of
the Act.
(iv) English learners, as defined in section 8101(20) of the Act.
(b) Children with disabilities. With respect to a student
previously identified as a child with a disability who has exited
special education services as determined by the student's
individualized education program (IEP) team, a State may include such a
student's performance within the children with disabilities subgroup
under paragraph (a)(2)(iii) of this section for not more than two years
after the student ceases to be identified as a child with a disability
(i.e., the two school years following the year in which the student
exits special education services) for purposes of calculating any
indicator under Sec. 200.14(b) that uses data from State assessments
under section 1111(b)(2)(B)(v)(I) of the Act, provided that the State
develops a uniform statewide procedure for doing so that includes all
such students and includes them--
(1) For the same State-determined period of time; and
(2) For purposes of determining if a school meets the State's
minimum number of students under Sec. 200.17(a)(1) for the children
with disabilities subgroup when calculating performance on any such
indicator.
(c) English learners. (1) With respect to a student previously
identified as an English learner who has achieved English language
proficiency consistent with the standardized, statewide exit procedures
in section 3113(b)(2) of the Act, a State may include such a student's
performance within the English learner subgroup under paragraph
(a)(2)(iv) of this section for not more than four years after the
student ceases to be identified as an English learner (i.e., the four
years following the year in which the student meets the statewide exit
criteria, consistent with Sec. 299.19(b)(4)) for purposes of
calculating any indicator under Sec. 200.14(b) that uses data from
State assessments under section 1111(b)(2)(B)(v)(I) of the Act, if the
State develops a uniform statewide procedure for doing so that includes
all such students and includes them--
(i) For the same State-determined period of time; and
(ii) For purpose of determining if a school meets the State's
minimum number of students under Sec. 200.17(a)(1) for the English
learner subgroup when calculating performance on any such indicator.
(2) With respect to an English learner with a disability that
precludes assessment of the student in one or more domains of the
English language proficiency assessment required under section
1111(b)(2)(G) of the Act such that there are no appropriate
accommodations for the affected domain(s) (e.g., a non-verbal English
learner who because of an identified disability cannot take the
speaking portion of the assessment), as determined, on an
individualized basis, by the student's IEP team, 504 team, or
individual or team designated by the LEA to make these decisions under
Title II of the Americans with Disabilities Act, a State must, in
measuring performance against the Progress in Achieving English
Language Proficiency indicator, include such a student's performance on
the English language proficiency assessment based on the remaining
domains in which it is possible to assess the student.
(3) With respect to a recently arrived English learner as defined
in section 1111(b)(3)(A) of the Act, a State must include such an
English learner's results on the assessments under section
1111(b)(2)(B)(v)(I) of the Act upon enrollment in a school in one of
the 50 States or the District of Columbia (hereafter ``a school in the
United States'') in calculating long-term goals and measurements of
interim progress under Sec. 200.13(a), annually meaningfully
differentiating schools under Sec. 200.18, and identifying schools
under Sec. 200.19, except that the State may either--
(i)(A) Exempt such an English learner from the first administration
of the reading/language arts assessment;
(B) Exclude such an English learner's results on the assessments
under section 1111(b)(2)(B)(v)(I) and 1111(b)(2)(G) of the Act in
calculating the Academic Achievement and Progress in Achieving English
Language Proficiency indicators in the first year of such an English
learner's enrollment in a school in the United States; and
(C) Include such an English learner's results on the assessments
under section 1111(b)(2)(B)(v)(I) and 1111(b)(2)(G) of the Act in
calculating the Academic Achievement and Progress in Achieving English
Language Proficiency indicators in the second year of such an English
learner's enrollment in a school in the United States and every year of
enrollment thereafter; or
(ii)(A) Assess, and report the performance of, such an English
learner on the assessments under section 1111(b)(2)(B)(v)(I) of the Act
in each year of such an English learner's enrollment in a school in the
United States;
(B) Exclude such an English learner's results on the assessments
under section 1111(b)(2)(B)(v)(I) of the Act in calculating the
Academic Achievement indicator in the first year of such an English
learner's enrollment in a school in the United States;
(C) Include a measure of such an English learner's growth on the
assessments under section 1111(b)(2)(B)(v)(I) of the Act in calculating
either the Academic Progress indicator or the Academic Achievement
indicator in the second year of such an English learner's enrollment in
a school in the United States; and
(D) Include a measure of such an English learner's proficiency on
the assessments under section 1111(b)(2)(B)(v)(I) of the Act in
calculating the Academic Achievement indicator in the third year of
such an English learner's enrollment in a school in the United States
and every year of enrollment thereafter.
(4) A State may choose one of the exceptions described in
paragraphs (c)(3)(i) or (ii) of this section for recently arrived
English learners and must--
(i)(A) Apply the same exception to all recently arrived English
learners in the State; or
(B) Develop and consistently implement a uniform statewide
procedure for all recently arrived English learners that considers
students' English language proficiency level at the time of the their
identification as English learners and that may, at a State's
discretion, consider one or more of the student characteristics under
Sec. 200.13(c)(2)(i)(B) through (E) in order to determine whether such
an exception applies to an English learner; and
(ii) Report on State and LEA report cards under section 1111(h) of
the Act the number and percentage of recently arrived English learners
who are exempted from taking such assessments or whose results on such
assessments are excluded from any indicator under Sec. 200.14 on the
basis of each exception described in paragraphs (c)(3)(i) and (ii) of
this section.
(d) Limitations. A State may not include former children with
disabilities or former English learners
[[Page 86226]]
within the applicable subgroups under paragraph (a)(2) of this section
for--
(1) Any purpose in the accountability system, except as described
in paragraphs (b) and (c)(1) of this section with respect to an
indicator that uses data from State assessments under section
1111(b)(2)(B)(v)(I) of the Act and as described in Sec. 200.34(e) with
respect to calculating the four-year adjusted cohort graduation rate;
or
(2) Purposes of reporting information on State and LEA report cards
under section 1111(h) of the Act, except for providing information on
the performance of the school, including a school's level of
performance under Sec. 200.18(b)(3), on any indicator that uses data
from State assessments under section 1111(b)(2)(B)(v)(I) of the Act and
for calculating the four-year adjusted cohort graduation rate
consistent with Sec. 200.34(e).
(e) State plan. Each State must describe in its State plan under
section 1111 of the Act how it has met the requirements of this
section, including by describing any subgroups of students used in the
accountability system in addition to those in paragraph (a)(2) of this
section, its uniform procedure for including former children with
disabilities under paragraph (b) of this section and former English
learners under paragraph (c)(1) of this section, and its uniform
procedure for including recently arrived English learners under
paragraph (c)(4) of this section, if applicable.
(Authority: 20 U.S.C. 6311(b)-(c), (h); 20 U.S.C. 6571(a); 20 U.S.C.
1221e-3; 20 U.S.C. 3474)
0
9. Section 200.17 is revised to read as follows:
Sec. 200.17 Disaggregation of data.
(a) Statistically sound and reliable information. (1) Based on
sound statistical methodology, each State must determine the minimum
number of students sufficient to--
(i) Yield statistically reliable information for each purpose for
which disaggregated data are used, including purposes of reporting
information under section 1111(h) of the Act or purposes of the
statewide accountability system under section 1111(c) of the Act; and
(ii) Ensure that, to the maximum extent practicable, each subgroup
of students described in Sec. 200.16(a)(2) is included at the school
level for annual meaningful differentiation and identification of
schools under Sec. Sec. 200.18 and 200.19.
(2) Such number--
(i) Must be the same number for all students and for each subgroup
of students in the State described in Sec. 200.16(a)(2);
(ii) Must be the same number for all purposes of the statewide
accountability system under section 1111(c) of the Act, including
measuring school performance for each indicator under Sec. 200.14;
(iii) Must not exceed 30 students, unless the State provides a
justification for doing so in its State plan under section 1111 of the
Act consistent with paragraph (a)(3)(v) of this section; and
(iv) May be a lower number for purposes of reporting under section
1111(h) under the Act than for purposes of the statewide accountability
system under section 1111(c) of the Act so long as such number for
reporting meets the requirements of paragraph (a)(2)(i) of this
section.
(3) A State must include in its State plan under section 1111 of
the Act--
(i) A description of how the State's minimum number of students
meets the requirements of paragraphs (a)(1) and (2) of this section;
(ii) An explanation of how other components of the statewide
accountability system, such as the State's uniform procedure for
averaging data under Sec. 200.20(a), interact with the State's minimum
number of students to affect the statistical reliability and soundness
of accountability data and to ensure the maximum inclusion of all
students and each subgroup of students described in Sec. 200.16(a)(2);
(iii) A description of the strategies the State uses to protect the
privacy of individual students for each purpose for which disaggregated
data is required, including reporting under section 1111(h) of the Act
and the statewide accountability system under section 1111(c) of the
Act, as required in paragraph (b) of this section;
(iv) Information regarding the number and percentage of all
students and students in each subgroup described in Sec. 200.16(a)(2)
for whose results schools would not be held accountable in the system
of annual meaningful differentiation under Sec. 200.18; and
(v) For a State proposing a minimum number of students exceeding
30, a justification that explains how a minimum number of students
exceeding 30 promotes sound, reliable accountability determinations,
including data on the number and percentage of schools in the State
that would not be held accountable in the system of annual meaningful
differentiation under Sec. 200.18 for the results of students in each
subgroup described in Sec. 200.16(a)(2) under the minimum number
proposed by the State compared to the data on the number and percentage
of schools in the State that would not be held accountable for the
results of students in each subgroup if the minimum number of students
were 30.
(b) Personally identifiable information. (1) A State may not use
disaggregated data for one or more subgroups described in Sec.
200.16(a) to report required information under section 1111(h) of the
Act if the results would reveal personally identifiable information
about an individual student, teacher, principal, or other school
leader.
(2) To determine whether the collection and dissemination of
disaggregated information would reveal personally identifiable
information about an individual student, teacher, principal, or other
school leader, a State must apply the requirements under section 444 of
the General Education Provisions Act (the Family Educational Rights and
Privacy Act of 1974).
(3) Nothing in paragraph (b)(1) or (2) of this section may be
construed to abrogate the responsibility of a State to implement the
requirements of section 1111(c) of the Act to annually meaningfully
differentiate among all public schools in the State on the basis of the
performance of all students and each subgroup of students described in
section 1111(c)(2) of the Act on all indicators under section
1111(c)(4)(B) of the Act.
(4) Each State and LEA must implement appropriate strategies to
protect the privacy of individual students in reporting information
under section 1111(h) of the Act and in establishing annual meaningful
differentiation of schools in its statewide accountability system under
section 1111(c) of the Act on the basis of disaggregated subgroup
information.
(c) Inclusion of subgroups in assessments. If a subgroup described
in Sec. [thinsp]200.16(a) is not of sufficient size to produce
statistically sound and reliable results, a State must still include
students in that subgroup in its State assessments under section
1111(b)(2)(B)(i) of the Act.
(d) Disaggregation at the LEA and State. If the number of students
in a subgroup is not statistically sound and reliable at the school
level, a State must include those students in disaggregated information
at each level for which the number of students is statistically sound
and reliable (e.g., the LEA or State level).
(Authority: 20 U.S.C. 6311(c), (h); 20 U.S.C. 6571(a); 20 U.S.C.
1221e-3; 20 U.S.C. 3474)
0
10. Section 200.18 is revised to read as follows:
[[Page 86227]]
Sec. 200.18 Annual meaningful differentiation of school performance:
Performance levels, data dashboards, summative determinations, and
indicator weighting.
(a) Each State must establish a system for annual meaningful
differentiation for all public schools, including public charter
schools, that--
(1) Includes the performance of all students and each subgroup of
students in a school, consistent with Sec. Sec. 200.16, 200.17, and
200.20(b), on each of the indicators described in Sec. 200.14;
(2) Includes, for each indicator, at least three distinct and
discrete levels of school performance that are consistent with
attainment of the long-term goals and measurements of interim progress
under Sec. 200.13, if applicable, and that are clear and
understandable to the public;
(3) Provides information on a school's level of performance (e.g.,
through a data dashboard) on each indicator described in Sec. 200.14,
separately, as part of the description of the State's system for annual
meaningful differentiation of schools on LEA report cards under Sec.
200.32;
(4) Results in a single summative determination from among at least
three distinct categories for each school, which must meaningfully
differentiate between schools based on differing levels of performance
on the indicators and which may include the two categories of schools
described in Sec. 200.19(a) and (b), to describe a school's overall
performance in a clear and understandable manner as part of the
description of the State's system for annual meaningful differentiation
on LEA report cards under Sec. Sec. 200.31 and 200.32;
(5) Meets the requirements of Sec. 200.15 to annually measure the
achievement of at least 95 percent of all students and 95 percent of
all students in each subgroup of students on the assessments described
in section 1111(b)(2)(B)(v)(I) of the Act; and
(6) Informs the State's methodology described in Sec. 200.19 for
identifying schools for comprehensive support and improvement and for
targeted support and improvement, including differentiation of schools
with consistently underperforming subgroups of students consistent with
paragraph (c) of this section and Sec. 200.19(c).
(b) In providing annual meaningful differentiation among all public
schools in the State, including providing a single summative
determination for each school under paragraph (a)(4) of this section, a
State must--
(1) Afford substantial weight to each of the following indicators,
as applicable, under Sec. 200.14:
(i) Academic Achievement indicator.
(ii) Academic Progress indicator.
(iii) Graduation Rate indicator.
(iv) Progress in Achieving English Language Proficiency indicator;
(2) Afford, in the aggregate, much greater weight to the indicators
in paragraph (b)(1) of this section than to the indicator or indicators
of School Quality or Student Success under Sec. 200.14(b)(5), in the
aggregate; and
(3) Within each grade span, afford the same relative weight to each
indicator among all schools consistent with paragraph (d)(3) of this
section.
(c) To show that its system of annual meaningful differentiation
meets the requirements of paragraphs (a) and (b) of this section, a
State must--
(1) In identifying schools for comprehensive support and
improvement under Sec. 200.19(a), demonstrate that performance on the
indicator or indicators of School Quality or Student Success may not be
used to change the identity of schools that would otherwise be
identified for comprehensive support and improvement without such
indicators, unless such a school has made significant progress in the
prior year as determined by the State, for all students consistent with
Sec. 200.16(a)(1), on at least one of the indicators described in
paragraph (b)(1)(i) through (iii) of this section;
(2) In identifying schools for targeted support and improvement
under Sec. 200.19(b), demonstrate that performance on the indicator or
indicators of School Quality or Student Success may not be used to
change the identity of schools that would otherwise be identified for
targeted support and improvement without such indicators, unless such a
school has made significant progress in the prior year as determined by
the State, for each consistently underperforming or low-performing
subgroup of students, on at least one of the indicators described in
paragraph (b)(1) of this section; and
(3) Demonstrate that a school with a consistently underperforming
subgroup of students under Sec. 200.19(c) receives a lower summative
determination under paragraph (a)(4) of this section than it would have
otherwise received if it did not have any consistently underperforming
subgroups of students; and
(d)(1) A State must demonstrate in its State plan under section
1111 of the Act how it has met the requirements of this section,
including a description of--
(i) How a State calculates the performance levels on each indicator
and a summative determination for each school under paragraph (a) of
this section;
(ii) How the State's methodology under this section and Sec.
200.19, including the weighting of indicators under paragraphs (b) and
(c) of this section, will ensure that schools with low performance on
the indicators described in paragraph (b)(1) of this section are more
likely to be identified for comprehensive support and improvement or
targeted support and improvement; and
(iii) Any different methodology, if a State chooses to develop such
methodology, that the State uses to include all public schools in its
system of annual meaningful differentiation consistent with paragraph
(a) of this section, such as--
(A) Schools in which no grade level is assessed under the State's
academic assessment system (e.g., P-2 schools), although the State is
not required to administer a standardized assessment to meet this
requirement;
(B) Schools with variant grade configurations (e.g., P-12 schools);
(C) Small schools in which the total number of students who can be
included in any indicator under Sec. 200.14 is less than the minimum
number of students established by the State under Sec. 200.17(a)(1),
consistent with a State's uniform procedures for averaging data under
Sec. 200.20(a), if applicable;
(D) Schools that are designed to serve special populations (e.g.,
students receiving alternative programming in alternative educational
settings; students living in local institutions for neglected or
delinquent children, including juvenile justice facilities; students
enrolled in State public schools for the deaf or blind; and recently
arrived English learners enrolled in public schools for newcomer
students); and
(E) Newly opened schools that do not have multiple years of data,
consistent with a State's uniform procedure for averaging data under
Sec. 200.20(a), if applicable, for at least one indicator (e.g., a
newly opened high school that has not yet graduated its first cohort
for students).
(2) In meeting the requirement in paragraph (b)(1) of this section
to afford substantial weight to certain indicators, a State is not
required to afford each such indicator the same substantial weight.
(3) If a school does not meet the State's minimum number of
students under Sec. 200.17(a)(1) for the English learner subgroup, a
State must--
(i) Exclude the Progress in Achieving English Language Proficiency
indicator
[[Page 86228]]
from the annual meaningful differentiation for such a school under
paragraph (a) of this section; and
(ii) Afford the Academic Achievement, Academic Progress, Graduation
Rate, and School Quality or Student Success indicators the same
relative weights in such a school as are afforded to such indicators in
a school that meets the State's minimum number of students for the
English learner subgroup.
(Authority: 20 U.S.C. 6311(c), (h); 20 U.S.C. 6571(a); 20 U.S.C.
1221e-3; 20 U.S.C. 3474)
0
11. Section 200.19 is revised to read as follows:
Sec. 200.19 Identification of schools.
(a) Schools identified for comprehensive support and improvement.
Based on its system for annual meaningful differentiation under Sec.
200.18, each State must establish and describe in its State plan under
section 1111 of the Act a methodology, including a timeline consistent
with paragraph (d) of this section, to identify one statewide category
of schools for comprehensive support and improvement under Sec.
200.21, which must include the following three types of schools:
(1) Lowest-performing. Not less than the lowest-performing five
percent of all schools in the State participating under subpart A of
this part, consistent with the requirements of Sec. 200.18(a)(4).
(2) Low high school graduation rate. Any public high school in the
State with a four-year adjusted cohort graduation rate, as calculated
under Sec. 200.34(a), at or below 67 percent, or below a higher
percentage selected by the State.
(3) Chronically low-performing subgroup. Any school participating
under subpart A of this part and identified pursuant to paragraph
(b)(2) of this section that has not improved, as defined by the State,
after implementing a targeted support and improvement plan over a
State-determined number of years consistent with paragraph (d)(1)(i) of
this section.
(b) Schools identified for targeted support and improvement. Based
on its system for annual meaningful differentiation under Sec. 200.18,
each State must establish and describe in its State plan under section
1111 of the Act a methodology to identify schools for targeted support
and improvement under Sec. 200.22, which must include the following
two types of schools:
(1) Consistently underperforming subgroup. Any school that is not
identified under paragraph (a) of this section with one or more
consistently underperforming subgroups of students, as defined in
paragraph (c) of this section and consistent with Sec. Sec. 200.16 and
200.17.
(2) Low-performing subgroup. Any school that is not identified
under paragraph (a) of this section in which one or more subgroups of
students is performing, using the State's methodology for identifying
the lowest-performing schools under paragraph (a)(1) of this section,
at or below the performance of all students in any school identified
under paragraph (a)(1) of this section. Schools identified under this
paragraph must receive additional targeted support in accordance with
section 1111(d)(2)(C) of the Act.
(c) Methodology to identify consistently underperforming subgroups.
The description required by paragraph (b)(1) of this section must
demonstrate that the State's methodology to identify schools with one
or more consistently underperforming subgroups of students under
paragraph (b)(1) of this section--
(1) Considers each school's performance among each subgroup of
students in the school consistent with Sec. Sec. 200.16 and 200.17,
over no more than two years, unless the State demonstrates that a
longer timeframe will better support low-performing subgroups of
students to make significant progress in achieving the State's long-
term goals and measurements of interim progress in order to close
statewide proficiency and graduation rate gaps, consistent with section
1111(c)(4)(A)(i)(III) of the Act and Sec. 200.13;
(2) Is based on all indicators under Sec. 200.14 used for annual
meaningful differentiation under Sec. 200.18 consistent with the
requirements for weighting of indicators described in Sec. 200.18(b);
and
(3) Defines a consistently underperforming subgroup of students in
a uniform manner across all LEAs in the State, which must include--
(i) A subgroup of students that is not meeting at least one of the
State's measurements of interim progress or is not on track to meet at
least one of the State-designed long-term goals under Sec. 200.13 or
is performing below a State-determined threshold on an indicator for
which the State is not required to establish long-term goals under
Sec. 200.13; or
(ii) Another State-determined definition.
(d) Timeline. (1) A State must identify--
(i) Each type of school for comprehensive support and improvement
under paragraphs (a)(1) through (3) of this section at least once every
three years, beginning with identification for the 2018-2019 school
year, except that identification of schools with chronically low-
performing subgroups under paragraph (a)(3) of this section is not
required for the 2018-2019 school year;
(ii) Schools with one or more consistently underperforming
subgroups of students for targeted support and improvement under
paragraph (b) of this section annually, beginning with identification
for the 2019-2020 school year; and
(iii) Schools with one or more low-performing subgroups of students
for targeted support and improvement under paragraph (b)(2) of this
section--
(A) Beginning with identification for the 2018-2019 school year;
(B) At least once every three years; and
(C) With such identification occurring in each year, consistent
with paragraph (d)(1)(i) of this section, in which the State identifies
schools for comprehensive support and improvement.
(2) Each year for which a State must identify schools for
comprehensive or targeted support and improvement, it must--
(i) Make such identification as soon as possible, but no later than
the beginning of each school year; and
(ii) For purposes of identifying schools under this section, use
data from the preceding school year (e.g., data from the 2017-2018
school year inform identification for the 2018-2019 school year), and,
at the State's discretion, data from earlier school years, consistent
with Sec. 200.20(a), except that a State is not required to use
adjusted cohort graduation rate data from the preceding school year if
the State uses data from the school year immediately prior to the
preceding school year (e.g., data from the 2016-2017 school year inform
identification for the 2018-2019 school year).
[[Page 86229]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timeline for Initial year of
Types of schools Description Statutory provision Regulatory provision identification identification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category: Comprehensive Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lowest-Performing................ Lowest-performing 1111(c)(4)(D)(i)(I). Sec. 200.19(a)(1). At least once every 2018-2019.
five percent of three years.
schools in the
State participating
in Title I.
Low High School Graduation Rate.. Any public high Section Sec. 200.19(a)(2). At least once every 2018-2019.
school in the State 1111(c)(4)(D)(i)(II three years.
with a four-year ).
adjusted cohort
graduation rate at
or below 67
percent, or below a
higher percentage
selected by the
State, over no more
than three years.
Chronically Low-Performing Any school Section Sec. 200.19(a)(3). At least once every State-determined.
Subgroup. participating in 1111(c)(4)(D)(i)(II three years.
Title I that (a) I),
was identified for 1111(d)(3)(A)(i)(II
targeted support ).
and improvement
because it had a
subgroup of
students performing
at or below the
performance of all
students in the
lowest-performing
schools and (b) did
not improve after
implementing a
targeted support
and improvement
plan over a State-
determined number
of years.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category: Targeted Support and Improvement
--------------------------------------------------------------------------------------------------------------------------------------------------------
Consistently Underperforming Any school with one Section Sec. 200.19(b)(1), Annually............ 2019-2020.
Subgroup. or more 1111(c)(4)(C)(iii), (c).
consistently 1111(d)(2)(A)(i).
underperforming
subgroups.
Low-Performing Subgroup.......... Any school in which Section Sec. 200.19(b)(2). At least once every 2018-2019.
one or more 1111(d)(2)(D). three years.
subgroups of
students is
performing at or
below the
performance of all
students in the
lowest-performing
schools. These
schools must
receive additional
targeted support
under the law.
If this type of
school is a Title I
school that does
not improve after
implementing a
targeted support
and improvement
plan over a State-
determined number
of years, it
becomes a school
that has a
chronically low-
performing subgroup
and is identified
for comprehensive
support and
improvement.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Authority: 20 U.S.C. 6311(c) and (d); 20 U.S.C. 6571(a); 20 U.S.C.
1221e-3; 20 U.S.C. 3474)
0
12. Section Sec. 200.20 is revised to read as follows:
Sec. 200.20 Data procedures for annual meaningful differentiation and
identification of schools.
(a) Averaging data. For the purposes of calculating the indicators
under Sec. 200.14 that are used for annual meaningful differentiation
under Sec. 200.18, meeting the requirement under Sec. 200.15(b)(2),
and identifying high schools with low graduation rates under Sec.
200.19(a)(2), a State may establish a uniform procedure for averaging
school-level data that includes one or both of the following:
(1) Combining data across school years. (i) A State may combine
data across up to three school years.
(ii) If a State combines data across school years for these
purposes, the State must--
(A) Use the same uniform procedure for combining data from the
school year for which the identification is made with data from one or
two school years immediately preceding that school year for all public
schools, including by summing the total number of students in each
subgroup of students described in Sec. 200.16(a)(2) across all school
years when calculating a school's performance on each indicator under
Sec. 200.14 and determining whether the subgroup meets the State's
minimum number of students described in Sec. 200.17(a)(1);
(B) Report data for a single school year, without combining, on
report cards under section 1111(h) of the Act; and
(C) Explain its uniform procedure for combining data in its State
plan under section 1111 of the Act and specify that such procedure is
used in its description of the indicators used for annual meaningful
differentiation on the State report card pursuant to section
1111(h)(1)(C)(i)(III) of the Act.
(2) Combining data across grades. (i) A State may combine data
across grades in a school.
(ii) If a State combines data across grades for these purposes, the
State must--
(A) Use the same uniform procedure for combining data for all
public schools;
(B) Report data for each grade in the school on report cards under
section 1111(h) of the Act; and
(C) Explain its uniform procedure for combining data in its State
plan under section 1111 of the Act, and specify that
[[Page 86230]]
such procedure is used in its description of the indicators used for
annual meaningful differentiation in its accountability system on the
State report card pursuant to section 1111(h)(1)(C)(i)(III) of the Act.
(b) Partial enrollment. (1) In calculating school performance on
each of the indicators for the purposes of annual meaningful
differentiation under Sec. 200.18 and identification of schools under
Sec. 200.19, a State must include all students who were enrolled in
the same school within an LEA for at least half of the academic year.
(2) A State may not use the performance of a student who has been
enrolled in the same school within an LEA for less than half of the
academic year in its system of annual meaningful differentiation and
identification of schools, except that--
(i) An LEA must include such student in calculating the Graduation
Rate indicator under Sec. 200.14(b)(3), if applicable;
(ii) If such student exited a high school without receiving a
regular high school diploma and without transferring to another high
school that grants a regular high school diploma during such school
year, the LEA must assign such student, for purposes of calculating the
Graduation Rate indicator and consistent with the approach established
by the State under Sec. 200.34, to either--
(A) The high school in which such student was enrolled for the
greatest proportion of school days while enrolled in grades 9 through
12; or
(B) The high school in which the student was most recently
enrolled; and
(iii) All students, regardless of their length of enrollment in a
school within an LEA during the academic year, must be included for
purposes of reporting on the State and LEA report cards under section
1111(h) of the Act for such school year.
(Authority: 20 U.S.C. 6311(c); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
0
13. Section 200.21 is revised to read as follows:
Sec. 200.21 Comprehensive support and improvement.
(a) In general. A State must notify each LEA in the State that
serves one or more schools identified for comprehensive support and
improvement under Sec. 200.19(a) of such identification as soon as
possible, but no later than the beginning of the school year for which
such school is identified.
(b) Notice. Upon receiving the notification from the State under
paragraph (a) of this section, an LEA must promptly notify the parents
of each student enrolled in the school of the school's identification
for comprehensive support and improvement, including, at a minimum, the
reason or reasons for the identification under Sec. 200.19(a) (e.g.,
low performance of all students, low graduation rate, chronically low-
performing subgroup), and an explanation of how parents can become
involved in the needs assessment under paragraph (c) of this section
and in developing and implementing the comprehensive support and
improvement plan described in paragraph (d) of this section. Such
notice must--
(1) Be in an understandable and uniform format;
(2) Be, to the extent practicable, written in a language that
parents can understand or, if it is not practicable to provide written
translations to a parent with limited English proficiency, be orally
translated for such parent; and
(3) Be, upon request by a parent who is an individual with a
disability as defined by the Americans with Disabilities Act, 42 U.S.C.
12102, provided in an alternative format accessible to that parent.
(c) Needs assessment. For each identified school, an LEA must
conduct, in partnership with stakeholders (including principals and
other school leaders, teachers, and parents), a comprehensive needs
assessment that examines, at a minimum--
(1) Academic achievement data on each of the assessments required
under section 1111(b)(2)(B)(v) of the Act for all students in the
school, including for each subgroup of students described in Sec.
200.16(a)(2);
(2) The school's performance, including among subgroups of students
described in Sec. 200.16(a)(2), on the long-term goals and
measurements of interim progress and indicators described in Sec. Sec.
200.13 and 200.14;
(3) The reason or reasons the school was identified for
comprehensive support and improvement under Sec. 200.19(a);
(4) The school's unmet needs, including those with respect to--
(i) Students (e.g., wrap-around support);
(ii) School leadership and instructional staff (e.g., professional
development, working conditions, time for planning, career ladder, and
leadership opportunities);
(iii) Quality of the instructional program;
(iv) Family and community involvement;
(v) School climate; and
(vi) Distribution of resources (e.g., based on the State periodic
review of resources under Sec. 200.23(a)); and
(5) At the LEA's discretion, the school's performance on
additional, locally selected measures that are not included in the
State's system of annual meaningful differentiation under Sec. 200.18
and that affect student outcomes in the identified school.
(d) Comprehensive support and improvement plan. Each LEA must, with
respect to each school identified by the State for comprehensive
support and improvement, develop and implement a comprehensive support
and improvement plan for the school to improve student outcomes that--
(1) Is developed in partnership with stakeholders (including
principals and other school leaders; teachers; parents and, as
appropriate, students; and, for LEAs affected by section 8538 of the
Act, Indian tribes), as demonstrated, at a minimum, by describing in
the plan how--
(i) Early stakeholder input was solicited and taken into account in
the development of the plan, including any changes made as a result of
such input; and
(ii) Stakeholders will participate in an ongoing manner in the
plan's implementation;
(2) Includes and is based on the results of the needs assessment
described in paragraph (c) of this section;
(3) Includes one or more interventions (e.g., increasing access to
effective teachers or adopting incentives to recruit and retain
effective teachers; increasing or redesigning instructional time;
interventions based on data from early warning indicator systems;
reorganizing the school to implement a new instructional model;
strategies designed to increase diversity by attracting and retaining
students from varying socioeconomic, racial, and ethnic backgrounds;
replacing school leadership with leaders who are trained for or have a
record of success in low-performing schools; increasing access to high-
quality preschool (in the case of an elementary school); converting the
school to a public charter school; changing school governance; closing
the school; and, in the case of a public charter school, working in
coordination with the applicable authorized public chartering agency,
revoking or non-renewing the school's charter by its authorized public
chartering agency consistent with State charter school law and the
terms of such a school's charter) to improve student outcomes in the
school that--
[[Page 86231]]
(i) Meet the definition of ``evidence-based'' under section
8101(21) of the Act;
(ii) Are supported, to the extent practicable, by evidence from a
sample population or setting that overlaps with the population or
setting of the school to be served;
(iii) Are supported, to the extent practicable, by the strongest
level of evidence that is available and appropriate to meet the needs
identified in the needs assessment under paragraph (c) of this section;
(iv) May be selected from a non-exhaustive list of evidence-based
interventions if such a list is established by the State, and must be
selected from an exhaustive list of evidence-based interventions if
such a list is established by the State, consistent with Sec.
200.23(c)(2);
(v) May be an evidence-based intervention determined by the State,
consistent with State law, as described in section 1111(d)(1)(3)(B)(ii)
of the Act and Sec. 200.23(c)(3); and
(vi) May include differentiated improvement activities that utilize
interventions that meet the definition of ``evidence-based'' under
section 8101(21) of the Act in any high school identified under Sec.
200.19(a)(2) that predominantly serves students--
(A) Returning to education after having exited secondary school
without a regular high school diploma; or
(B) Who, based on their grade or age, are significantly off track
to accumulate sufficient academic credits to meet high school
graduation requirements, as established by the State;
(4) Identifies and addresses resource inequities, by--
(i) Including a review of LEA- and school-level resources among
schools and, as applicable, within schools with respect to--
(A) Differences in rates at which low-income and minority students
are taught by ineffective, out-of-field, or inexperienced teachers
identified by the State and LEA consistent with sections 1111(g)(1)(B)
and 1112(b)(2) of the Act;
(B) Access to advanced coursework, including accelerated coursework
as reported annually consistent with section 1111(h)(1)(C)(viii) of the
Act;
(C) Access in elementary schools to full-day kindergarten programs
and to preschool programs as reported annually consistent with section
1111(h)(1)(C)(viii) of the Act;
(D) Access to specialized instructional support personnel, as
defined in section 8101(47) of the Act, including school counselors,
school social workers, school psychologists, other qualified
professional personnel, and school librarians; and
(E) Per-pupil expenditures of Federal, State, and local funds
required to be reported annually consistent with section
1111(h)(1)(C)(x) of the Act; and
(ii) Including, at the LEA's discretion, a review of LEA- and
school-level budgeting and resource allocation with respect to
resources described in paragraph (d)(4)(i) of this section and the
availability and access to any other resource provided by the LEA or
school, such as instructional materials and technology;
(5) Must be fully implemented in the school year for which such
school is identified, except that an LEA may have a planning year
during which the LEA must carry out the needs assessment required under
paragraph (c) of this section and develop the comprehensive support and
improvement plan to prepare for successful implementation of
interventions required under the plan during the planning year or, at
the latest, the first full day of the school year following the school
year for which the school was identified;
(6) Must be made publicly available by the LEA, including to
parents consistent with the requirements under paragraphs (b)(1)
through (3) of this section; and
(7) Must be approved by the school identified for comprehensive
support and improvement, the LEA, and the State.
(e) Plan approval and monitoring. The State must, upon receipt from
an LEA of a comprehensive support and improvement plan under paragraph
(d) of this section--
(1) Review such plan against the requirements of this section and
approve the plan in a timely manner, as determined by the State, taking
all actions necessary to ensure that the school and LEA are able to
meet all of the requirements of paragraphs (a) through (d) of this
section to develop and implement the plan within the required
timeframe; and
(2) Monitor and periodically review each LEA's implementation of
such plan.
(f) Exit criteria. (1) To ensure continued progress to improve
student academic achievement and school success, the State must
establish, make publicly available, and describe in its State plan
under section 1111 of the Act, uniform statewide exit criteria for each
school implementing a comprehensive support and improvement plan under
this section. Such exit criteria must, at a minimum, require that the
school--
(i) Improve student outcomes; and
(ii) No longer meet the criteria under which the school was
identified under Sec. 200.19(a) within a State-determined number of
years (not to exceed four years).
(2) If a school does not meet the exit criteria established under
paragraph (f)(1) of this section within the State-determined number of
years, the State must, at a minimum, require the LEA to conduct a new
comprehensive needs assessment that meets the requirements under
paragraph (c) of this section.
(3) Based on the results of the new needs assessment, the LEA must,
with respect to each school that does not meet the exit criteria, amend
its comprehensive support and improvement plan described in paragraph
(d) of this section, in partnership with stakeholders consistent with
the requirements in paragraph (d)(1) of this section, to--
(i) Address the reasons the school did not meet the exit criteria,
including whether the school implemented the interventions with
fidelity and sufficient intensity, and the results of the new needs
assessment;
(ii) Update how it will continue to address previously identified
resource inequities and to identify and address any newly identified
resource inequities consistent with the requirements in paragraph
(d)(4) of this section; and
(iii) Include implementation of additional interventions in the
school that may address school-level operations (which may include
staffing, budgeting, and changes to the school day and year) and that
must--
(A) Be determined by the State, which may include requiring an
intervention from among any State-established evidence-based
interventions or a State-approved list of evidence-based interventions,
consistent with State law and Sec. 200.23(c)(2) and (3);
(B) Be more rigorous, including one or more evidence-based
interventions in the plan that are supported by strong or moderate
evidence, consistent with section 8101(21)(A) of the Act;
(C) Be supported, to the extent practicable, by evidence from a
sample population or setting that overlaps with the population or
setting of the school to be served; and
(D) Must be described in its State plan under section 1111 of the
Act.
(4) Each LEA must--
(i) Make the amended comprehensive support and improvement plan
described in paragraph (f)(3) of this section publicly available,
including to parents consistent with paragraphs (b)(1) through (3) of
this section; and
[[Page 86232]]
(ii) Submit the amended plan to the State in a timely manner, as
determined by the State.
(5) After the LEA submits the amended plan to the State, the State
must--
(i) Review and approve the amended plan, and any additional
amendments to the plan, consistent with the review process required
under paragraph (e)(1) of this section; and
(ii) Increase its monitoring, support, and periodic review of each
LEA's implementation of such plan.
(g) State discretion for small high schools. With respect to any
high school in the State identified for comprehensive support and
improvement under Sec. 200.19(a)(2), the State may, in the case of
such a school that has a total enrollment of less than 100 students,
permit the LEA to forego development or implementation of a school
support and improvement plan or any implementation of improvement
activities required under this section.
(h) Public school choice. Consistent with section 1111(d)(1)(D) of
the Act, an LEA may provide all students enrolled in a school
identified by the State for comprehensive support and improvement under
Sec. 200.19(a) with the option to transfer to another public school
that is served by the LEA and that is not identified for comprehensive
support and improvement under Sec. 200.19(a), unless such an option is
prohibited by State law or inconsistent with a Federal desegregation
order, in which case the LEA must petition and obtain court approval
for such transfers.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6311(d); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474; 42 U.S.C. 12102)
0
14. Section 200.22 is revised to read as follows:
Sec. 200.22 Targeted support and improvement.
(a) In general. With respect to each school that the State
identifies under Sec. 200.19(b) or, as applicable, under Sec.
200.15(b)(2)(iii), as a school requiring targeted support and
improvement, each State must--
(1) Notify as soon as possible, but no later than the beginning of
the school year for which such school is identified, each LEA serving
such school of the identification; and
(2) Ensure such LEA provides notification to each school identified
for targeted support and improvement, including the reason for
identification (i.e., the subgroup or subgroups described in Sec.
200.16(a)(2) that are identified as consistently underperforming under
Sec. 200.19(b)(1), the subgroup or subgroups that are low-performing
under Sec. 200.19(b)(2) and will receive additional targeted support,
and, at the State's discretion, the subgroup or subgroups that are
identified under Sec. 200.15(b)(2)(iii)), no later than the beginning
of the school year for which such school is identified.
(b) Notice. (1) Upon receiving the notification from the State
under paragraph (a)(1) of this section, the LEA must promptly notify
the parents of each student enrolled in the school of the school's
identification for targeted support and improvement, consistent with
the requirements under Sec. 200.21(b)(1) through (3).
(2) The notice must include--
(i) The reason or reasons for the identification (i.e., which
subgroup or subgroups are consistently underperforming under Sec.
200.19(b)(1), which subgroup or subgroups are low-performing under
Sec. 200.19(b)(2) and will receive additional targeted support, and
any subgroup or subgroups identified under Sec. 200.15(b)(2)(iii) if
the State chooses to require such schools to implement targeted support
and improvement plans); and
(ii) An explanation of how parents can become involved in
developing and implementing the targeted support and improvement plan
described in paragraph (c) of this section.
(c) Targeted support and improvement plan. Upon receiving the
notification from the LEA under paragraph (a)(2) of this section, each
school must develop and implement a school-level targeted support and
improvement plan to address the reason or reasons for identification
and improve student outcomes for the lowest-performing students in the
school that--
(1) Is developed in partnership with stakeholders (including
principals and other school leaders; teachers; and parents and, as
appropriate, students) as demonstrated by, at a minimum, describing in
the plan how--
(i) Early stakeholder input was solicited and taken into account in
the development of each component of the plan, including any changes
made as a result of such input; and
(ii) Stakeholders will have an opportunity to participate in an
ongoing manner in such plan's implementation;
(2) Is designed to improve student performance for the lowest-
performing students on each of the indicators under Sec. 200.14 that
led to the identification of the school for targeted support and
improvement or, in the case of schools implementing targeted support
and improvement plans consistent with Sec. 200.15(b)(2)(iii), to
improve student participation in the assessments required under section
1111(b)(2)(B)(v)(I) of the Act;
(3) Takes into consideration--
(i) The school's performance on the long-term goals and
measurements of interim progress and the indicators described in
Sec. Sec. 200.13 and 200.14, including student academic achievement on
each of the assessments required under section 1111(b)(2)(B)(v) of the
Act; and
(ii) At the school's discretion, the school's performance on
additional, locally selected measures that are not included in the
State's system of annual meaningful differentiation under Sec. 200.18
and that affect student outcomes in the identified school;
(4) Includes one or more interventions to address the reason or
reasons for identification and improve student outcomes for the lowest-
performing students in the school that--
(i) Meet the definition of ``evidence-based'' under section
8101(21) of the Act;
(ii) Are supported, to the extent practicable, by evidence from a
sample population or setting that overlaps with the population or
setting of the school to be served;
(iii) Are supported, to the extent practicable, by the strongest
level of evidence that is available and appropriate to improve student
outcomes for the lowest-performing students in the school; and
(iv) May be selected from a non-exhaustive list of evidence-based
interventions if such a list is established by the State, and must be
selected from an exhaustive list of evidence-based interventions if
such a list is established by the State, consistent with Sec.
200.23(c)(2);
(5) Must be fully implemented in the school year for which such
school is identified, except that a school identified under Sec.
200.19(b) may have a planning year during which the school must develop
the targeted support and improvement plan and complete other activities
necessary to prepare for successful implementation of interventions
required under the plan during the planning year or, at the latest, the
first full day of the school year following the school year for which
the school was identified;
(6) Is submitted to the LEA for approval, pursuant to paragraph (d)
of this section;
(7) In the case of a school with low-performing subgroups as
described in Sec. 200.19(b)(2), and to ensure such school receives
additional targeted support as required under section
[[Page 86233]]
1111(d)(2)(C) of the Act, identifies and addresses resource inequities
by--
(i) Including a review of LEA- and school-level resources among
schools and, as applicable, within schools with respect to--
(A) Differences in rates at which low-income and minority students
are taught by ineffective, out-of-field, or inexperienced teachers
identified by the State and LEA consistent with sections 1111(g)(1)(B)
and 1112(b)(2) of the Act;
(B) Access to advanced coursework, including accelerated coursework
as reported annually consistent with section 1111(h)(1)(C)(viii) of the
Act;
(C) Access in elementary schools to full-day kindergarten programs
and to preschool programs as reported annually consistent with section
1111(h)(1)(C)(viii) of the Act;
(D) Access to specialized instructional support personnel, as
defined in section 8101(47) of the Act, including school counselors,
school social workers, school psychologists, other qualified
professional personnel, and school librarians; and
(E) Per-pupil expenditures of Federal, State, and local funds
required to be reported annually consistent with section
1111(h)(1)(C)(x) of the Act; and
(ii) Including, at the school's discretion, a review of LEA- and
school-level budgeting and resource allocation with respect to
resources described in paragraph (c)(7)(i) of this section and the
availability and access to any other resource provided by the LEA or
school, such as instructional materials and technology; and
(8) For any school operating a schoolwide program under section
1114 of the Act, addresses the needs identified by the needs assessment
required under section 1114(b)(6) of the Act.
(d) Plan approval and monitoring. The LEA must, upon receipt of a
targeted support and improvement plan under paragraph (c) of this
section from a school--
(1) Review each plan against the requirements of this section and
approve such plan in a timely manner, taking all actions necessary to
ensure that each school is able to meet all of the requirements under
paragraph (c) of this section within the required timeframe;
(2) Make the approved plan, and any amendments to the plan,
publicly available, including to parents consistent with the
requirements under Sec. 200.21(b)(1) through (3); and
(3) Monitor the school's implementation of the plan.
(e) Exit criteria. Except with respect to schools described in
paragraph (f) of this section, the LEA must establish and make publicly
available, including to parents consistent with the requirements under
Sec. 200.21(b)(1) through (3), uniform exit criteria for schools
identified by the State under Sec. 200.19(b) and, as applicable, Sec.
200.15(b)(2)(iii), and use such criteria to make one of the following
determinations with respect to each such school after a number of years
as determined by the LEA:
(1) The school has successfully implemented its targeted support
and improvement plan such that it no longer meets the criteria for
identification and has improved student outcomes for its lowest-
performing students, including each subgroup of students that was
identified as consistently underperforming under Sec. 200.19(b)(1) or
low-performing under Sec. 200.19(b)(2), or, in the case of a school
implementing a targeted support and improvement plan consistent with
Sec. 200.15(b)(2)(iii), has met the requirement under Sec.
200.15(a)(2) for student participation in the assessments required
under section 1111(b)(2)(B)(v)(I) of the Act, and will exit targeted
support and improvement status.
(2) The school has unsuccessfully implemented its targeted support
and improvement plan such that it has not improved student outcomes for
its lowest-performing students, including each subgroup of students
that was identified as consistently underperforming under Sec.
200.19(b)(1) or low-performing under Sec. 200.19(b)(2), or, in the
case of a school implementing a targeted support and improvement plan
consistent with Sec. 200.15(b)(2)(iii), has failed to meet the
requirement under Sec. 200.15(a)(2) for student participation in the
assessments required under section 1111(b)(2)(B)(v)(I) of the Act, in
which case the LEA must subsequently--
(i) Require the school to amend its targeted support and
improvement plan to include additional actions that continue to meet
all requirements under paragraph (c) of this section and address the
reasons the school did not meet the exit criteria, and encourage
interventions that either meet a higher level of evidence under
paragraph (c)(4) of this section than the interventions included in the
school's original plan or increase the intensity of effective
interventions in the school's original plan;
(ii) Review and approve the school's amended plan consistent with
the review process required under paragraph (d)(1) of this section; and
(iii) Increase its monitoring and support of such school's
implementation of the plan.
(f) Special rule for schools with low-performing subgroups. (1)
With respect to any school participating under subpart A of this part
that has one or more low-performing subgroups as described in Sec.
200.19(b)(2), the State must establish, make publicly available, and
describe in its State plan under section 1111 of the Act, uniform
statewide exit criteria that, at a minimum, ensure each such school--
(i) Improves student outcomes for its lowest-performing students,
including each subgroup of students identified as low-performing under
Sec. 200.19(b)(2); and
(ii) No longer meets the criteria for identification under Sec.
200.19(b)(2).
(2) If a school does not satisfy the exit criteria established
under paragraph (f)(1) of this section within a State-determined
timeline, the State must identify the school for comprehensive support
and improvement under Sec. 200.19(a)(3), consistent with Sec.
200.19(d)(1)(i).
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6311(d); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
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15. Add Sec. 200.23 to read as follows:
Sec. 200.23 State responsibilities to support continued improvement.
(a) State support. Each State must include in its State plan under
section 1111 of the Act a description of how it will, with respect to
each LEA in the State serving a significant number or percentage of
schools identified for comprehensive or targeted support and
improvement under Sec. 200.19, periodically review resources,
including the resources listed in Sec. 200.21(d)(4)(i)(A) through (E),
available in such LEAs as compared to all other LEAs in the State and
in schools in those LEAs as compared to all other schools in the State,
consider any inequities identified under Sec. Sec. 200.21(d)(4) and
200.22(c)(7), and, to the extent practicable, address any identified
inequities in resources.
(b) State technical assistance. Each State must include in its
State plan under section 1111 of the Act a description of technical
assistance it will provide to each LEA in the State serving a
significant number or percentage of schools identified for
comprehensive or targeted support and improvement, including, at a
minimum, a description of how it will provide technical assistance to
LEAs to ensure the effective implementation of evidence-based
interventions and support and increase their capacity to successfully--
[[Page 86234]]
(1) Develop and implement comprehensive support and improvement
plans that meet the requirements of Sec. 200.21;
(2) Ensure schools develop and implement targeted support and
improvement plans that meet the requirements of Sec. 200.22; and
(3) Develop or use tools related to--
(i) Conducting a school-level needs assessment consistent with
Sec. 200.21(c);
(ii) Selecting evidence-based interventions consistent with
Sec. Sec. 200.21(d)(3) and 200.22(c)(4); and
(iii) Reviewing resource allocation and identifying strategies for
addressing any identified resource inequities consistent with
Sec. Sec. 200.21(d)(4) and 200.22(c)(7).
(c) Additional improvement actions. Consistent with State law, the
State may--
(1) Take action to initiate additional improvement in any LEA, or
in any authorized public chartering agency consistent with State
charter school law, that serves a significant number or percentage of
schools that are identified for comprehensive support and improvement
under Sec. 200.19(a) and are not meeting exit criteria established
under Sec. 200.21(f) or a significant number or percentage of schools
identified for targeted support and improvement under Sec. 200.19(b),
which may include--
(i) LEA-level actions such as reducing the LEA's operational or
budgetary autonomy; removing one or more schools from the jurisdiction
of the LEA; or restructuring the LEA, including changing its governance
or initiating State takeover of the LEA;
(ii) In the case of an authorized public chartering agency,
monitoring, limiting, or revoking the authority of the agency to issue,
renew, and revoke school charters; and
(iii) School-level actions such as reorganizing a school to
implement a new instructional model; replacing school leadership with
leaders who are trained for or have a record of success in low-
performing schools; converting a school to a public charter school;
changing school governance; closing a school; or, in the case of a
public charter school, working in coordination with the applicable
authorized public chartering agency, revoking or non-renewing the
school's charter consistent with State charter school law and the terms
of the school's charter;
(2) Establish and approve an exhaustive or non-exhaustive list of
evidence-based interventions consistent with the definition of
evidenced-based under section 8101(21) of the Act for use in schools
implementing comprehensive support and improvement or targeted support
and improvement plans under Sec. 200.21 or Sec. 200.22;
(3) Develop one or more evidence-based, State-determined
interventions consistent with section 1111(d)(3)(B)(ii) of the Act that
can be used by LEAs in a school identified for comprehensive support
and improvement under Sec. 200.19(a), such as whole-school reform
models; and
(4) Require that LEAs submit to the State for review and approval,
in a timely manner, the amended targeted support and improvement plan
for each school in the LEA described in Sec. 200.22(e)(2)(i) prior to
the approval of such plan by the LEA.
(Authority: 20 U.S.C. 6311(d); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474)
0
16. Add Sec. 200.24 to read as follows:
Sec. 200.24 Resources to support continued improvement.
(a) In general. (1) A State must allocate school improvement funds
that it reserves under section 1003(a) of the Act to LEAs to serve
schools implementing comprehensive or targeted support and improvement
plans under Sec. Sec. 200.21 or 200.22, except that such funds may not
be used to serve schools implementing targeted support and improvement
plans consistent with Sec. 200.15(b)(2)(iii).
(2) An LEA may apply for school improvement funds if--
(i) It has one or more schools identified for comprehensive support
and improvement under Sec. 200.19(a) or targeted support and
improvement under Sec. 200.19(b) consistent with paragraph (a)(1) of
this section; and
(ii) It applies to serve each school in the LEA identified for
comprehensive support and improvement that it has sufficient capacity
to serve before applying to serve any school in the LEA identified for
targeted support and improvement.
(b) LEA application. To receive school improvement funds under
paragraph (a) of this section, an LEA must submit an application to the
State to serve one or more schools identified for comprehensive or
targeted support and improvement. In addition to any other information
that the State may require, such an application must include each of
the following:
(1) A description of one or more evidence-based interventions that
are based on strong, moderate, or promising evidence as defined under
section 8101(21)(A) of the Act and that will be implemented in each
school the LEA proposes to serve.
(2) A description of how the LEA will carry out its
responsibilities under Sec. Sec. 200.21 and 200.22 for schools it will
serve with funds under this section, including how the LEA will--
(i) Develop and implement a comprehensive support and improvement
plan that meets the requirements of Sec. 200.21 for each school
identified under Sec. 200.19(a), for which the LEA receives school
improvement funds to serve; and
(ii) Support each school identified under Sec. 200.19(b), for
which the LEA receives school improvement funds to serve, in developing
and implementing a targeted support and improvement plan that meets the
requirements of Sec. 200.22.
(3) A budget indicating how it will allocate school improvement
funds among schools identified for comprehensive support and
improvement and targeted support and improvement that it proposes to
serve.
(4) The LEA's plan to monitor schools for which the LEA receives
school improvement funds, including the LEA's plan to increase
monitoring of a school that does not meet the exit criteria consistent
with Sec. Sec. 200.21(f), 200.22(e), or 200.22(f).
(5) A description of the rigorous review process the LEA will use
to recruit, screen, select, and evaluate any external partners with
which the LEA will partner in carrying out activities supported with
school improvement funds.
(6) A description of how the LEA will align other Federal, State,
and local resources to carry out the activities supported with school
improvement funds.
(7) A description of how the LEA will sustain effective activities
in schools after funding under this section is complete.
(8) As appropriate, a description of how the LEA will modify
practices and policies to provide operational flexibility, including
with respect to school budgeting and staffing, that enables full and
effective implementation of comprehensive support and improvement and
targeted support and improvement plans.
(9) For any LEA that plans to use the first year of its school
improvement funds for planning activities in a school that it will
serve, a description of the activities that will be supported with
school improvement funds, the timeline for implementing those
activities, how such timeline will ensure full implementation of the
comprehensive or targeted support and improvement plan consistent with
Sec. Sec. 200.21(d)(5) and 200.22(c)(5), and how those activities
[[Page 86235]]
will support successful implementation of comprehensive or targeted
support and improvement plans.
(10) An assurance that each school the LEA proposes to serve will
receive all of the State and local funds it would have received in the
absence of funds received under this section.
(c) Allocation of school improvement funds to LEAs. (1) A State
must review, in a timely manner, an LEA application for school
improvement funds that meets the requirements of this section.
(2) In awarding school improvement funds under this section, a
State must--
(i) Award the funds on a competitive or formula basis;
(ii) Make each award of sufficient size, with a minimum award of
$500,000 per year for each school identified for comprehensive support
and improvement to be served and a minimum award of $50,000 per year
for each school identified for targeted support and improvement to be
served, to support the LEA to effectively implement all requirements
for a support and improvement plan under Sec. 200.21 or Sec. 200.22,
as applicable, including selected evidence-based interventions, except
that a State may determine that an award of less than the minimum award
amount is appropriate if, based on each school's enrollment, identified
needs, selected evidence-based interventions, and other relevant
factors described in the LEA's application on behalf of the school,
that such lesser amount will be sufficient to support effective
implementation of such plan; and
(iii) Make awards not to exceed four years, which may include a
planning year consistent with paragraph (b)(9) of this section during
which the LEA must plan to carry out activities that will be supported
with school improvement funds by, at the latest, the beginning of the
school year following the school year for which the school was
identified, and that will support the successful implementation of
interventions required under Sec. Sec. 200.21 or 200.22, as
applicable.
(3) If a State permits an LEA to have a planning year for a school
under paragraph (c)(2)(iii) of this section, prior to renewing the
LEA's school improvement award with respect to such school, the State
must review the performance of the LEA in supporting such school during
the planning year against the LEA's approved application and determine
that the LEA will be able to ensure such school fully implements the
activities and interventions that will be supported with school
improvement funds by the beginning of the school year following the
planning year.
(4) If a State has insufficient school improvement funds to award a
grant of sufficient size to each LEA that submits an approvable
application consistent with paragraph (c)(1) of this section, the State
must, whether awarding funds through a formula or competition--
(i) Award funds to an LEA to serve a school identified for
comprehensive support and improvement before awarding funds to an LEA
to serve a school identified for targeted support and improvement;
(ii) Give priority in funding to an LEA that demonstrates the
greatest need for such funds, as determined by the State, and based, at
a minimum, on--
(A) The number or percentage of elementary and secondary schools in
the LEA implementing plans under Sec. Sec. 200.21 or 200.22;
(B) The State's review of resources available among and within LEAs
under Sec. 200.23(a); and
(C) Current academic achievement and student outcomes in the school
or schools the LEA is proposing to serve.
(iii) Give priority in funding to an LEA that demonstrates the
strongest commitment to use such funds to enable the lowest-performing
schools to improve academic achievement and student outcomes, taking
into consideration, with respect to the school or schools to be
served--
(A) The proposed use of evidence-based interventions that are
supported by the strongest level of evidence available and sufficient
to support the school in making progress toward meeting exit criteria
under Sec. 200.21 or Sec. 200.22; and
(B) Commitment to family and community engagement.
(iv) Take into consideration geographic diversity within the State.
(d) State responsibilities. (1) In its State plan under section
1111 of the Act, each State must describe how it will--
(i) Award school improvement funds to LEAs, consistent with
paragraph (c) of this section;
(ii) Monitor the use of funds by LEAs receiving school improvement
funds;
(iii) Evaluate the use of school improvement funds by LEAs
receiving such funds including by, at a minimum--
(A) Engaging in ongoing efforts to analyze the impact of the
evidence-based interventions implemented using funds allocated under
this section on student outcomes or other relevant outcomes; and
(B) Disseminating on a regular basis the State's findings on the
impact of the evidence-based interventions to LEAs with schools
identified under Sec. 200.19;
(iv) Prior to renewing an LEA's award of school improvement funds
with respect to a particular school each year and consistent with
paragraph (c)(2)(ii) of this section, determine that--
(A) The school is making progress on the State's long-term goals
and measurements of interim progress and accountability indicators
under Sec. Sec. 200.13 and 200.14; and
(B) The school is implementing evidence-based interventions with
fidelity to the LEA's application and the requirements under Sec. Sec.
200.21 or 200.22, as applicable; and
(v) As appropriate, reduce barriers and provide operational
flexibility for each school in an LEA receiving funds under this
section, including flexibility around school budgeting and staffing.
(2) A State may--
(i) Set aside up to five percent of the school improvement funds
the State reserves under section 1003(a) of the Act to carry out the
activities under paragraph (d)(1) of this section; and
(ii) Directly provide for school improvement activities funded
under this section or arrange for their provision in a school through
external partners such as school support teams, educational service
agencies, or nonprofit or for-profit entities with expertise and a
record of success in implementing evidence-based strategies to improve
student achievement, instruction, and schools if the State has the
authority under State law to take over the school or, if the State does
not have such authority, with LEA approval with respect to each such
school, and--
(A) The State undertakes a rigorous review process in recruiting,
screening, selecting, and evaluating any external partner the State
uses to carry out activities directly with school improvement funds;
and
(B) The external provider has demonstrated success implementing the
evidence-based intervention or interventions that are based on strong,
moderate, or promising evidence consistent with section 8101(21)(A) of
the Act that it will implement.
(e) Reporting. The State must include on its State report card
required under section 1111(h)(1) of the Act a list of all LEAs, and
schools served by such LEAs, that received funds under this section,
including the amount of funds each LEA received to serve each such
school and the types of interventions implemented in each such school
with the funds.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6303; 20 U.S.C. 6311(d); 20 U.S.C. 6571(a); 20
U.S.C. 1221e-3; 20 U.S.C. 3474)
[[Page 86236]]
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17. Revise the undesignated center heading following Sec. 200.29 to
read as follows:
State and LEA Report Cards
0
18. Section 200.30 is revised to read as follows:
Sec. 200.30 Annual State report card.
(a) State report cards in general. (1) A State that receives funds
under subpart A of this part must prepare and disseminate widely to the
public, consistent with paragraph (d) of this section, an annual State
report card for the State as a whole that meets the requirements of
this section.
(2) Each State report card must include, at a minimum--
(i) The information required under section 1111(h)(1)(C) of the
Act;
(ii) As applicable, for each authorized public chartering agency in
the State--
(A) A comparison between the percentage of students in each
subgroup defined in section 1111(c)(2) of the Act for each charter
school authorized by such agency and such percentage for the LEA or
LEAs from which the charter school draws a significant portion of its
students, or the geographic community within the LEA in which the
charter school is located, as determined by the State; and
(B) A comparison between the academic achievement under Sec.
200.30(b)(2)(i)(A) for students in each charter school authorized by
such agency and the academic achievement for students in the LEA or
LEAs from which the charter school draws a significant portion of its
students, or the geographic community within the LEA in which the
charter school is located, as determined by the State; and
(iii) Any additional information that the State believes will best
inform parents, students, and other members of the public regarding the
progress of each of the State's public elementary schools and secondary
schools, which may include the number and percentage of students
requiring remediation in postsecondary education and the number and
percentage of students attaining career and technical proficiencies.
(3) A State may meet its cross-tabulation requirements under
section 1111(g) of the Act through its State report cards.
(b) Format. (1) The State report card must be concise and presented
in an understandable and uniform format that is developed in
consultation with parents.
(2) The State report card must begin with a clearly labeled
overview section that is prominently displayed and includes the
following statewide information for the most recent school year:
(i) For all students and disaggregated, at a minimum, for each
subgroup of students described in Sec. 200.16(a)(2), results on--
(A) Each of the academic assessments in reading/language arts,
mathematics, and science under section 1111(b)(2) of the Act, including
the number and percentage of students at each level of achievement;
(B) Each measure included within the Academic Progress indicator
under Sec. 200.14(b)(2) for students in public elementary schools and
secondary schools that are not high schools;
(C) The four-year adjusted cohort graduation rate and, if adopted
by the State, any extended-year adjusted cohort graduation rate
consistent with Sec. 200.34; and
(D) Each measure included within the School Quality or Student
Success indicator(s) under Sec. 200.14(b)(5).
(ii) The number and percentage of English learners achieving
English language proficiency, as measured by the English language
proficiency assessments under section 1111(b)(2)(G) of the Act.
(3) If the overview section required under paragraph (b)(2) of this
section does not include disaggregated data for each subgroup required
under section 1111(h)(1)(C) of the Act, a State must ensure that the
disaggregated data not included in the overview section are otherwise
included on the State report card.
(c) Accessibility. Each State report card must be in a format and
language, to the extent practicable, that parents can understand in
compliance with the requirements under Sec. 200.21(b)(1) through (3).
(d) Dissemination and availability. A State must--
(1) Disseminate widely to the public the State report card by, at a
minimum, making it available on a single Web page of the SEA's Web
site; and
(2) Include on the SEA's Web site--
(i) The report card required under Sec. 200.31 for each LEA in the
State; and
(ii) The annual report to the Secretary required under section
1111(h)(5) of the Act.
(e) Timing of report card dissemination. (1) Beginning with the
State report card based on information from the 2017-2018 school year,
a State must annually disseminate the State report card for the
preceding school year no later than December 31.
(2) In meeting the deadline under paragraph (e)(1) of this section,
a State may delay inclusion of per-pupil expenditure data required
under Sec. 200.35 until no later than the following June 30, provided
the State report card includes a brief description of when such data
will be publicly available.
(3) If a State cannot meet the December 31, 2018, deadline for
reporting some or all of the newly required information under section
1111(h)(1)(C) of the Act for the 2017-2018 school year, the State may
request from the Secretary a one-time, one-year extension for reporting
on those elements. To receive an extension, a State must submit to the
Secretary, by July 1, 2018--
(i) Evidence satisfactory to the Secretary demonstrating that the
State cannot meet the deadline in paragraph (e)(1) of this section; and
(ii) A plan and timeline addressing the steps the State will take
to disseminate the State report card for the 2018-2019 school year
consistent with this section.
(f) Disaggregation of data. (1) For the purpose of reporting
disaggregated data under section 1111(h) of the Act, the following
definitions apply:
(i) The term ``migrant status'' means status as a ``migratory
child'' as defined in section 1309(3) of the Act, which means a child
or youth who made a qualifying move in the preceding 36 months--
(A) As a migratory agricultural worker or a migratory fisher; or
(B) With, or to join, a parent or spouse who is a migratory
agricultural worker or a migratory fisher.
(ii) The term ``homeless status'' means status as ``homeless
children and youths'' as defined in section 725 of the McKinney-Vento
Homeless Assistance Act, as amended, which means individuals who lack a
fixed, regular, and adequate nighttime residence (within the meaning of
section 103(a)(1) of the McKinney-Vento Homeless Assistance Act) and
includes--
(A) Children and youths who are--
(1) Sharing the housing of other persons due to loss of housing,
economic hardship, or a similar reason;
(2) Living in motels, hotels, trailer parks, or camping grounds due
to the lack of alternative adequate accommodations;
(3) Living in emergency or transitional shelters; or
(4) Abandoned in hospitals;
(B) Children and youths who have a primary nighttime residence that
is a public or private place not designed for or ordinarily used as a
regular sleeping accommodation for human beings (within the meaning of
section
[[Page 86237]]
103(a)(2)(C) of the McKinney-Vento Homeless Assistance Act);
(C) Children and youths who are living in cars, parks, public
spaces, abandoned buildings, substandard housing, bus or train
stations, or similar settings; and
(D) Migratory children (as defined in this paragraph) who qualify
as homeless for the purposes of this section because they are living in
circumstances described in paragraph (f)(1)(ii)(A) through (C) of this
section.
(iii) With respect to the term ``status as a child in foster
care,'' the term ``foster care'' has the same meaning as defined in 45
CFR 1355(a), which means 24-hour substitute care for children placed
away from their parents and for whom the title IV-E agency has
placement and care responsibility. This includes, but is not limited
to, placements in foster family homes, foster homes of relatives, group
homes, emergency shelters, residential facilities, child care
institutions, and preadoptive homes. A child is in foster care in
accordance with this definition regardless of whether the foster care
facility is licensed and payments are made by the State, tribal, or
local agency for the care of the child, whether adoption subsidy
payments are being made prior to the finalization of an adoption, or
whether there is Federal matching of any payments that are made.
(iv) With respect to the term ``student with a parent who is a
member of the Armed Forces on active duty,'' such term includes a
parent on full-time National Guard duty. The terms ``Armed Forces,''
``active duty,'' and ``full-time National Guard duty'' have the same
meanings as defined in 10 U.S.C. 101(a)(4), 101(d)(1), and 101(d)(5):
(A) ``Armed Forces'' means the Army, Navy, Air Force, Marine Corps,
and Coast Guard.
(B) ``Active duty'' means full-time duty in the active military
service of the United States, including full-time training duty, annual
training duty, and attendance, while in the active military service, at
a school designated as a service school by law or by the Secretary of
the military department concerned. Such term does not include full-time
National Guard duty.
(C) ``Full-time National Guard duty'' means training or other duty,
other than inactive duty, performed by a member of the Army National
Guard of the United States or the Air National Guard of the United
States in the member's status as a member of the National Guard of a
State or territory, the Commonwealth of Puerto Rico, or the District of
Columbia under section 316, 502, 503, 504, or 505 of title 32 for which
the member is entitled to pay from the United States or for which the
member has waived pay from the United States.
(2) A State is not required to report disaggregated data for
information required on the State report card under section 1111(h) of
the Act if the number of students in the subgroup is insufficient to
yield statistically sound and reliable information or the results would
reveal personally identifiable information about an individual student,
consistent with Sec. 200.17.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6301; 20
U.S.C. 6311(h); 20 U.S.C. 6571(a))
0
19. Section Sec. 200.31 is revised to read as follows:
Sec. 200.31 Annual LEA report card.
(a) LEA report card in general. (1) An LEA that receives funds
under subpart A of this part must prepare and disseminate to the
public, consistent with paragraph (d) of this section, an annual LEA
report card that meets the requirements of this section and includes
information on the LEA as a whole and each school served by the LEA.
(2) Each LEA report card must include, at a minimum, the
information required under section 1111(h)(2)(C) of the Act.
(b) Format. (1) The LEA report card must be concise and presented
in an understandable and uniform format that is developed in
consultation with parents.
(2) Each LEA report card must begin with, for the LEA as a whole
and for each school served by the LEA, a clearly labeled overview
section that is prominently displayed and includes the following
information for the most recent school year:
(i) For all students and disaggregated, at a minimum, for each
subgroup of students required described in Sec. 200.16(a)(2)--
(A) All information required under Sec. 200.30(b)(2);
(B) For the LEA, how academic achievement under Sec.
200.30(b)(2)(i)(A) compares to that for students in the State as a
whole; and
(C) For each school, how academic achievement under Sec.
200.30(b)(2)(i)(A) compares to that for students in the LEA and the
State as a whole.
(ii) For each school--
(A) The summative determination of the school consistent with Sec.
200.18(a)(4);
(B) Whether the school is identified for comprehensive support and
improvement under Sec. 200.19(a) and, if so, the reason for such
identification (i.e., lowest-performing school, low graduation rates,
or school with a chronically low-performing subgroup(s)); and
(C) Whether the school is identified for targeted support and
improvement under Sec. 200.19(b) or Sec. 200.15(b)(2)(iii) and, if
so, each subgroup for which it is identified (i.e., subgroup or
subgroups who are consistently underperforming or low-performing or, as
applicable, who have missed the requirement for 95 percent student
participation in assessments).
(iii) Identifying information, including, but not limited to, the
name, address, phone number, email, student membership count, and
status as a participating Title I school.
(3) Each LEA must ensure that the overview section required under
paragraph (b)(2) of this section for each school served by the LEA can
be distributed to parents, consistent with paragraph (d)(3)(i) of this
section.
(4) If the overview section required under paragraph (b)(2) of this
section does not include disaggregated data for each subgroup required
under section 1111(h)(1)(C)(ii) of the Act, an LEA must ensure that the
disaggregated data not included in the overview section are otherwise
included on the LEA report card.
(c) Accessibility. Each LEA report card must be in a format and
language, to the extent practicable, that parents can understand in
compliance with the requirements under Sec. 200.21(b)(1) through (3).
(d) Dissemination and availability. (1) An LEA report card must be
accessible to the public.
(2) At a minimum the LEA report card must be made available on the
LEA's Web site, except that an LEA that does not operate a Web site may
provide the information to the public in another manner determined by
the LEA.
(3) An LEA must provide, for each school served by the LEA, the
information described in paragraph (b)(2) of this section to the
parents of each student enrolled in the school--
(i) Directly to parents, through such means as regular mail, email,
or other direct means of distribution; and
(ii) In a timely manner, consistent with the requirements under
paragraph (e) of this section.
(e) Timing of LEA report card dissemination. (1) Beginning with the
LEA report card based on information from the 2017-2018 school year, an
LEA must annually disseminate its report
[[Page 86238]]
card for the preceding school year no later than December 31.
(2) In meeting the deadline under paragraph (e)(1) of this section,
an LEA may delay inclusion of per-pupil expenditure data required under
Sec. 200.35 until no later than the following June 30, provided the
report card includes a brief description of when such data will be
publicly available.
(3) If an LEA cannot meet the December 31, 2018, deadline for
reporting some or all of the newly required information under section
1111(h)(2)(C) of the Act for the 2017-2018 school year, a State may
request from the Secretary a one-time, one-year extension for reporting
on those elements on behalf of the LEA consistent with the requirements
under Sec. 200.30(e)(3).
(f) Disaggregation of data. For the purpose of reporting
disaggregated data under section 1111(h)(2)(C) of the Act, the
requirements under Sec. 200.30(f) apply to LEA report cards.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6571(a); 20
U.S.C. 6311(h))
0
20. Section 200.32 is revised to read as follows:
Sec. 200.32 Description and results of a State's accountability
system.
(a) Accountability system description. Each State and LEA report
card must include a clear and concise description of the State's
current accountability system under Sec. Sec. 200.12 to 200.24. Each
accountability system description must include--
(1) The minimum number of students that the State establishes under
Sec. 200.17(a) for use in the accountability system;
(2) The long-term goals and measurements of interim progress that
the State establishes under Sec. 200.13 for all students and for each
subgroup of students described in Sec. 200.16(a)(2);
(3) The indicators used by the State under Sec. 200.14 to annually
meaningfully differentiate among all public schools, including, if
applicable, the State's uniform procedure for averaging data across
years or grades consistent with Sec. 200.20(a);
(4) The State's system for annually meaningfully differentiating
all public schools in the State under Sec. 200.18, including--
(i) The specific weight, consistent with Sec. 200.18(b) and (c),
of each indicator described in Sec. 200.14(b) in such differentiation;
(ii) The way in which the State factors the requirement for 95
percent student participation in assessments under Sec. 200.15(a)(2)
into its system of annual meaningful differentiation described in
Sec. Sec. 200.15(b) and 200.18(a)(5);
(iii) The methodology by which the State differentiates all such
schools under Sec. 200.18(a), including information on the performance
levels and summative determinations provided by the State consistent
with Sec. 200.18(a)(3) and (4);
(iv) The methodology by which the State identifies a school for
comprehensive support and improvement as described in Sec. 200.19(a);
and
(v) The methodology by which the State identifies a school for
targeted support and improvement as described in Sec. 200.19(b) and
(c), including the definition and time period used by the State to
determine consistently underperforming subgroups of students; and
(5) The exit criteria established by the State under Sec. Sec.
200.21(f) and 200.22(f), including the number of years by which a
school must meet the exit criteria.
(b) Reference to State plan. To the extent that a State plan or
another location on the SEA's Web site provides a description of the
accountability system elements required in paragraph (a)(1) through (5)
of this section that complies with the requirements under Sec.
200.21(b)(1) through (3), a State or LEA may provide the Web address or
URL of, or a direct link to, such State plan or location on the SEA's
Web site to meet the reporting requirement for such accountability
system elements.
(c) Accountability system results. (1) Each State and LEA report
card must include, as applicable, the number and names of each public
school in the State or LEA identified by the State for--
(i) Comprehensive support and improvement under Sec. 200.19(a); or
(ii) Targeted support and improvement under Sec. 200.19(b).
(2) For each school identified by the State for comprehensive
support and improvement under Sec. 200.19(a), the State and LEA report
card must indicate which of the following reasons led to such
identification:
(i) Lowest-performing school under Sec. 200.19(a)(1).
(ii) Low graduation rates under Sec. 200.19(a)(2).
(iii) One or more chronically low-performing subgroups under Sec.
200.19(a)(3), including the subgroup or subgroups that led to such
identification.
(3) For each school identified by the State for targeted support
and improvement under Sec. 200.19(b) or Sec. 200.15(b)(2)(iii), the
State and LEA report card must indicate--
(i) Which subgroup or subgroups led to the school's identification;
and
(ii) Whether the school has one or more subgroups who are
consistently underperforming or low-performing or, as applicable, who
have missed the requirement for 95 percent student participation in
assessments.
(4) Each LEA report card must include, for each school served by
the LEA, the school's performance level consistent with Sec.
200.18(a)(2) and (3) on each indicator in Sec. 200.14(b) and the
school's summative determination consistent with Sec. 200.18(a)(4).
(5) If a State includes more than one measure within any indicator
under Sec. 200.14(b), the LEA report card must include each school's
results on each individual measure and the single performance level for
the indicator overall, across all such measures.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6311(c),
(h); 20 U.S.C. 6571(a))
0
21. Section 200.33 is revised to read as follows:
Sec. 200.33 Calculations for reporting on student achievement and
progress toward meeting long-term goals.
(a) Calculations for reporting student achievement results. (1)
Consistent with paragraph (a)(3) of this section, each State and LEA
report card must include the percentage of students performing at each
level of achievement under section 1111(b)(1)(A) of the Act (e.g.,
proficient, advanced) on the academic assessments under section
1111(b)(2) of the Act, overall and by grade.
(2) Consistent with paragraph (a)(3) of this section, each LEA
report card must also--
(i) Compare the results under paragraph (a)(1) of this section for
students served by the LEA with students in the State as a whole; and
(ii) For each school served by the LEA, compare the results under
paragraph (a)(1) of this section for students enrolled in the school
with students served by the LEA and students in the State as a whole.
(3) Each State and LEA report card must include, with respect to
each reporting requirement under paragraphs (a)(1) and (2) of this
section--
(i) Information for all students;
(ii) Information disaggregated by--
(A) Each subgroup of students described in Sec. 200.16(a)(2);
(B) Migrant status;
(C) Gender;
(D) Homeless status;
[[Page 86239]]
(E) Status as a child in foster care; and
(F) Status as a student with a parent who is a member of the Armed
Forces on active duty or serves on full-time National Guard duty; and
(iii) Results based on both--
(A) The percentage of students at each level of achievement, in
which the denominator includes the greater of--
(1) 95 percent of all students, or 95 percent of each subgroup of
students, who are enrolled in the school, LEA, or State, respectively;
or
(2) The number of all such students enrolled in the school, LEA, or
State, respectively, who participate in the assessments required under
section 1111(b)(2)(B)(v) of the Act; and
(B) The percentage of students at each level of achievement, in
which the denominator includes all students with a valid test score.
(b) Calculation for reporting on the progress of all students and
each subgroup of students toward meeting the State-designed long-term
academic achievement goals. (1) Each State and LEA report card must
indicate whether all students and each subgroup of students described
in Sec. 200.16(a)(2) met or did not meet the State measurements of
interim progress for academic achievement under Sec. 200.13(a).
(2) To meet the requirements of paragraph (b)(1) of this section,
each State and LEA must calculate the percentage of students who are
proficient and above on the State assessments required under section
1111(b)(2)(B)(v)(I) of the Act based on a denominator that includes the
greater of--
(i) 95 percent of all students, and 95 percent of each subgroup of
students, who are enrolled in the school, LEA, or State, respectively;
or
(ii) The number of all such students enrolled in the school, LEA,
or State, respectively who participate in the assessments required
under section 1111(b)(2)(B)(v)(I) of the Act.
(c) Calculation for reporting the percentage of students assessed
and not assessed. (1) Each State and LEA report card must include the
percentage of all students, and the percentage of students
disaggregated by each subgroup of students described in Sec.
200.16(a)(2), gender, and migrant status, assessed and not assessed on
each of the assessments required under section 1111(b)(2)(B)(v) of the
Act.
(2) To meet the requirements of paragraph (c)(1) of this section,
each State and LEA must include in the denominator of the calculation
all students enrolled in the school, LEA, or State, respectively, at
the time of testing.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6311(c),
(h); 20 U.S.C. 6571(a))
0
22. Section 200.34 is revised to read as follows:
Sec. 200.34 High school graduation rate.
(a) Four-year adjusted cohort graduation rate. A State must
calculate a four-year adjusted cohort graduation rate for each public
high school in the State in the following manner:
(1) The numerator must consist of the sum of--
(i) All students who graduate in four years with a regular high
school diploma; and
(ii) All students with the most significant cognitive disabilities
in the cohort, assessed using an alternate assessment aligned to
alternate academic achievement standards under section 1111(b)(2)(D) of
the Act and awarded a State-defined alternate diploma.
(2) The denominator must consist of the number of students who form
the adjusted cohort of entering first-time students in grade 9 enrolled
in the high school no later than the date by which student membership
data is collected annually by the State for submission to the National
Center for Education Statistics.
(3) For those high schools that start after grade 9, the cohort
must be calculated based on the earliest high school grade students
attend.
(b) Adjusting the cohort. (1) ``Adjusted cohort'' means the
students who enter grade 9 (or the earliest high school grade) plus any
students who transfer into the cohort in grades 9 through 12, and minus
any students removed from the cohort.
(2) ``Students who transfer into the cohort'' means the students
who enroll after the beginning of the date of the determination of the
cohort, up to and including in grade 12.
(3) To remove a student from the cohort, a school or LEA must
confirm in writing that the student--
(i) Transferred out, such that the school or LEA has official
written documentation that the student enrolled in another school or
educational program from which the student is expected to receive a
regular high school diploma, or a State-defined alternate diploma for
students with the most significant cognitive disabilities;
(ii) Emigrated to another country;
(iii) Transferred to a prison or juvenile facility after an
adjudication of delinquency, and is enrolled in an educational program
from which the student is expected to receive a regular high school
diploma, or a State-defined alternate diploma for students with the
most significant cognitive disabilities, during the period in which the
student is assigned to the prison or juvenile facility; or
(iv) Is deceased.
(4) A student who is retained in grade, enrolls in a general
equivalency diploma program or other alternative education program that
does not issue or provide credit toward the issuance of a regular high
school diploma or a State-defined alternate diploma, or leaves school
for any reason other than those described in paragraph (b)(3) of this
section may not be counted as having transferred out for the purpose of
calculating the graduation rate and must remain in the adjusted cohort.
(5) For students with the most significant cognitive disabilities
assessed using an alternate assessment aligned to alternate academic
achievement standards under section 1111(b)(2)(D) of the Act and who
are eligible for a State-defined alternate diploma under Sec.
200.34(c)(3), an LEA or school must--
(i) Assign the student to the cohort of entering first-time
students in grade 9 and ensure that the student remains in that cohort
through grade 12.
(ii) Remove such a student from the original cohort if the student
does not graduate after four years but continues to be enrolled in the
school or LEA and is expected to receive a State-defined alternate
diploma that meets the requirements of paragraph (c)(3) of this
section;
(iii) Reassign such a student who graduates with a State-defined
alternate diploma after more than four years to the cohort of students
graduating in that year and include the student in the numerator and
denominator of the graduation rate calculation--
(A) For the four-year adjusted cohort graduation rate for the year
in which the student graduates; and
(B) For an extended-year adjusted cohort graduation rate under
paragraph (d) of this section for one or more subsequent years, if the
State has adopted such a rate.
(iv) Reassign such a student who after more than four years does
not graduate with a State-defined alternate diploma that meets the
requirements of paragraph (c)(3) of this section to the cohort of
students graduating in the year in which the student exits high school
and include the student in the denominator of the graduation rate
calculation--
[[Page 86240]]
(A) For the four-year adjusted cohort graduation rate for the year
in which the student exits high school; and
(B) For an extended-year adjusted cohort graduation rate under
paragraph (d) of this section for one or more subsequent years, if the
State has adopted such a rate.
(c) Definition of terms. For the purposes of calculating an
adjusted cohort graduation rate under this section--
(1) ``Students who graduate in four years'' means students who earn
a regular high school diploma before, during, or at the conclusion of
their fourth year, or during a summer session immediately following
their fourth year.
(2) ``Regular high school diploma'' means the standard high school
diploma awarded to the preponderance of students in the State that is
fully aligned with State standards, or a higher diploma. A regular high
school diploma does not include--
(i) A diploma aligned to the alternate academic achievement
standards described in section 1111(b)(1)(E) of the ESEA, as amended by
the ESSA; or
(ii) A general equivalency diploma, certificate of completion,
certificate of attendance, or any similar or lesser credential, such as
a diploma based on meeting individualized education program (IEP)
goals.
(3) ``Alternate diploma'' means a diploma for students with the
most significant cognitive disabilities, as defined by the State, who
are assessed with a State's alternate assessments aligned to alternate
academic achievement standards under section 1111(b)(2)(D) of the Act
and is--
(i) Standards-based;
(ii) Aligned with the State's requirements for a regular high
school diploma; and
(iii) Obtained within the time period for which the State ensures
the availability of a free appropriate public education under section
612(a)(1) of the Individuals with Disabilities Education Act (20 U.S.C.
1412(a)(1)).
(d) Extended-year adjusted cohort graduation rate. In addition to
calculating a four-year adjusted cohort graduation rate, a State may
calculate and report an extended-year adjusted cohort graduation rate.
(1) ``Extended-year adjusted cohort graduation rate'' means the
number of students who graduate in four years, plus the number of
students who graduate in one or more additional years beyond the fourth
year of high school with a regular high school diploma or a State-
defined alternate diploma, divided by the number of students who form
the adjusted cohort for the four-year adjusted cohort graduation rate,
provided that the adjustments account for any students who transfer
into the cohort by the end of the year of graduation being considered
minus the number of students who transfer out, emigrate to another
country, transfer to a prison or juvenile facility, or are deceased, as
described in paragraph (b)(3) of this section.
(2) A State may calculate one or more extended-year adjusted cohort
graduation rates.
(e) Reporting on State and LEA report cards. (1) A State and LEA
report card must include, at the school, LEA, and State levels--
(i) Four-year adjusted cohort graduation rates and, if adopted by
the State, extended-year adjusted cohort graduation rates for all
students and disaggregated by each subgroup of students described in
Sec. 200.16(a)(2), homeless status, and status as a child in foster
care.
(ii) Whether all students and each subgroup of students described
in Sec. 200.16(a)(2) met or did not meet the State measurements of
interim progress for graduation rates under Sec. 200.13(b); and
(2) In reporting graduation rates disaggregated by each subgroup of
students described in Sec. 200.16(a)(2), homeless status, and status
as a child in foster care, a State and its LEAs must include students
who were children with disabilities, English learners, children who are
homeless (as defined in Sec. 200.30(f)(1)(ii)), or children who are in
foster care (as defined in Sec. 200.30(f)(1)(iii)) at any time during
the cohort period.
(3) A State and its LEAs must report the four-year adjusted cohort
graduation rate and, if adopted by the State, extended-year adjusted
cohort graduation rate that reflects results of the immediately
preceding school year.
(4) If a State adopts an extended-year adjusted cohort graduation
rate, the State and its LEAs must report the extended-year adjusted
cohort graduation rate separately from the four-year adjusted cohort
graduation rate.
(f) Partial school enrollment. Each State must apply the same
approach in all LEAs to determine whether students who are enrolled in
the same school for less than half of the academic year as described in
Sec. 200.20(b) who exit high school without a regular high school
diploma and do not transfer into another high school that grants a
regular high school diploma are counted in the denominator for
reporting the adjusted cohort graduation rate--
(1) At the school in which such student was enrolled for the
greatest proportion of school days while enrolled in grades 9 through
12; or
(2) At the school in which the student was most recently enrolled.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6311(h); 20
U.S.C. 6571(a); 20 U.S.C. 7801(23), (25))
0
23. Section 200.35 is revised to read as follows:
Sec. 200.35 Per-pupil expenditures.
(a) State report card requirements. (1) Each State report card must
include the following:
(i) Current expenditures per pupil from Federal, State, and local
funds, for the preceding fiscal year, consistent with the timeline in
Sec. 200.30(e), for each LEA in the State, and for each school served
by each LEA--
(A) In the aggregate; and
(B) Disaggregated by source of funds, including--
(1) Federal funds; and
(2) State and local funds combined plus Federal funds intended to
replace local tax revenues, which may not include funds received from
private sources.
(ii) The Web address or URL of, or direct link to, a description of
the uniform procedure required under paragraph (c) of this section that
complies with the requirements under Sec. 200.21(b)(1) through (3).
(2) Each State report card must also separately include, for each
LEA, the amount of current expenditures per pupil that were not
included in school-level per-pupil expenditure data for public schools
in the LEA.
(b) LEA report card requirements. (1) Each LEA report card must
include the following:
(i) Current expenditures per pupil from Federal, State, and local
funds, for the preceding fiscal year, consistent with the timeline in
Sec. 200.31(e), for the LEA and each school served by the LEA--
(A) In the aggregate; and
(B) Disaggregated by source of funds, including--
(1) Federal funds; and
(2) State and local funds combined plus Federal funds intended to
replace local tax revenues, which may not include funds received from
private sources.
(ii) The Web address or URL of, or direct link to, a description of
the uniform procedure required under paragraph (c) of this section.
(2) Each LEA report card must also separately include the amount of
current expenditures per pupil that
[[Page 86241]]
were not included in school-level per-pupil expenditure data for public
schools in the LEA.
(c) Uniform procedures. A State must develop a single statewide
procedure to calculate LEA current expenditures per pupil and a single
statewide procedure to calculate school-level current expenditures per
pupil, such that--
(1) The numerator consists of current expenditures, which means
actual personnel costs (including actual staff salaries) and actual
non-personnel expenditures of Federal, State, and local funds, used for
public education--
(i) Including, but not limited to, expenditures for administration,
instruction, instructional support, student support services, pupil
transportation services, operation and maintenance of plant, fixed
charges, preschool, and net expenditures to cover deficits for food
services and student body activities; but
(ii) Not including expenditures for community services, capital
outlay, and debt service; and
(2) The denominator consists of the aggregate number of students
enrolled in preschool through grade 12 to whom the State and LEA
provide free public education on or about October 1, consistent with
the student membership data collected annually by the State for
submission to the National Center for Education Statistics.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6571(a); 20
U.S.C. 6311(h))
0
24. Section 200.36 is revised to read as follows:
Sec. 200.36 Postsecondary enrollment.
(a) Reporting information on postsecondary enrollment. (1) Each
State and LEA report card must include the information at the SEA, LEA
and high school level on postsecondary enrollment required under
section 1111(h)(1)(C)(xiii) of the Act, where available, consistent
with paragraph (c) of this section. This information must include, for
each high school in the State (in the case of a State report card) and
for each high school in the LEA (in the case of an LEA report card),
the cohort rate (for all students and each subgroup of students
described in section Sec. 200.16(a)(2)) at which students who graduate
from high school enroll in programs of postsecondary education,
including--
(i) Programs of public postsecondary education in the State; and
(ii) If data are available and to the extent practicable, programs
of private postsecondary education in the State or public and private
programs of postsecondary education outside the State.
(2) For the purposes of this section, ``programs of postsecondary
education'' has the same meaning as the term ``institution of higher
education'' under section 101(a) of the Higher Education Act of 1965,
as amended.
(b) Calculating postsecondary enrollment. To meet the requirements
of paragraph (a) of this section, each State and LEA must calculate the
cohort rate in the following manner:
(1) The numerator must consist of the number of students who enroll
in a program of postsecondary education in the academic year following
the students' high school graduation.
(2) The denominator must consist of the number of students who
graduated with a regular high school diploma or a State-defined
alternate diploma from each high school in the State, in accordance
with Sec. 200.34, in the immediately preceding school year.
(c) Information availability. (1) For the purpose of paragraph (a)
of this section, information is ``available'' if either--
(i) The State is routinely obtaining the information; or
(ii) The information is obtainable by the State on a routine basis.
(2) If the postsecondary enrollment information described in
paragraph (a) of this section is not available or is partially
available, the State and LEA report cards must include the school year
in which such information is expected to be fully available.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1001(a); 20 U.S.C. 6571(a); 20 U.S.C. 1221e-3;
20 U.S.C. 3474; 6311(h))
0
25. Section 200.37 is revised to read as follows:
Sec. 200.37 Educator qualifications.
(a) Professional qualifications of educators in the State. Each
State and LEA report card must include, in the aggregate and
disaggregated by high-poverty and low-poverty schools, the number and
percentage of the following:
(1) Inexperienced teachers, principals, and other school leaders;
(2) Teachers teaching with emergency or provisional credentials;
and
(3) Teachers who are not teaching in the subject or field for which
the teacher is certified or licensed.
(b) Uniform definitions. For purposes of paragraph (a) of this
section, the following definitions apply:
(1) ``High-poverty schools'' means schools in the top quartile of
poverty in the State;
(2) ``Low-poverty schools'' means schools in the bottom quartile of
poverty in the State; and
(3) Each State must adopt, and the State and each LEA in the State
must use, a statewide definition of the term ``inexperienced'' and of
the phrase ``not teaching in the subject or field for which the teacher
is certified or licensed.''
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 1221e-3; 20 U.S.C. 3474; 20 U.S.C. 6571(a); 20
U.S.C. 6311(h))
Sec. Sec. 200.38 through 200.42 [Removed and Reserved]
0
26. Remove and reserve Sec. Sec. 200.38 through 200.42.
0
27. Add an undesignated center heading following reserved Sec. 200.42
to read as follows:
Other State Plan Provisions
Sec. 200.43 [Removed]
0
28. Remove Sec. 200.43.
Sec. 200.58 [Redesignated as Sec. 200.43]
0
29. Redesignate Sec. 200.58 as Sec. 200.43.
Sec. Sec. 200.44 through 200.47 [Removed and Reserved]
0
30. Remove and reserve Sec. Sec. 200.44 through 200.47.
0
31. Add an undesignated center heading following reserved Sec. 200.47
to read as follows:
Local Educational Agency Plans
Sec. 200.48 [Removed]
0
32. Remove Sec. 200.48.
Sec. 200.61 [Redesignated as 200.48]
0
33. Redesignate Sec. 200.61 as Sec. 200.48.
Sec. Sec. 200.49 through 200.53 [Removed and Reserved]
0
34. Remove and reserve Sec. Sec. 200.49 through 200.53.
0
35. Add an undesignated center heading following reserved Sec. 200.54
to read as follows:
Participation of Eligible Children in Private Schools
Sec. Sec. 200.55 through 200.57 [Removed and Reserved]
0
36. Remove Sec. Sec. 200.55 through 200.57.
Sec. Sec. 200.62 through 200.64 [Redesignated as Sec. Sec. 200.55
through 200.57]
0
37. Redesignate Sec. Sec. 200.62 through 200.64 as Sec. Sec. 200.55
through 200.57.
Sec. Sec. 200.58 through 200.60 [Removed]
0
38. Remove Sec. Sec. 200.58 through 200.60.
Sec. 200.65 [Redesignated as Sec. 200.58]
0
39. Redesignate Sec. 200.65 as Sec. 200.58.
[[Page 86242]]
Sec. Sec. 200.66 through 200.67 [Redesignated as Sec. Sec. 200.59
through 200.60]
0
40. Redesignate Sec. Sec. 200.66 through 200.67 as Sec. Sec. 200.59
through 200.60.
Sec. 200.61 [Reserved]
0
41. Add reserved Sec. Sec. 200.61.
Sec. 200.62 [Removed and Reserved]
0
42. Remove and reserve Sec. 200.62.
0
43. Add an undesignated center heading following reserved Sec. 200.62
to read as follows:
Allocations to LEAs
Sec. Sec. 200.63 through 200.67 [Removed]
0
44. Remove Sec. Sec. 200.63 through 200.67.
Sec. Sec. 200.70 through 200.75 [Redesignated as Sec. Sec. 200.63
through 200.68]
0
45. Redesignate Sec. Sec. 200.70 through 200.75 as Sec. Sec. 200.63
through 200.68.
0
46. Add an undesignated center heading following reserved Sec. 200.69
to read as follows:
Procedures for the Within-District Allocation of LEA Program Funds
Sec. Sec. 200.77 and 200.78 [Redesignated as Sec. Sec. 200.70 and
200.71]
0
47. Redesignate Sec. Sec. 200.77 and 200.78 as Sec. Sec. 200.70 and
200.71.
0
48. Add an undesignated center heading following Sec. 200.71 to read
as follows:
Fiscal Requirements
Sec. 200.79 [Redesignated as Sec. 200.73
0
49. Redesignate Sec. 200.79 as Sec. 200.73.
Sec. 200.79 [Reserved]
0
50. Add reserved Sec. 200.79.
PART 299--GENERAL PROVISIONS
0
51. The authority citation for part 299 is revised to read as follows:
(Authority: 20 U.S.C. 1221e-3(a)(1), unless otherwise noted)
Sec. 299.1 [Amended]
0
52. In Sec. 299.1 revise paragraph (a) to read as follows:
Sec. 299.1 What are the purpose and scope of these regulations?
(a) This part establishes uniform administrative rules for programs
in titles I through XII of the Elementary and Secondary Education Act
of 1965, as amended (ESEA or the Act). As indicated in particular
sections of this part, certain provisions apply only to a specific
group of programs.
* * * * *
0
53. Add Subpart G to read as follows:
Subpart G--State Plans
Sec.
299.13 Overview of State plan requirements.
299.14 Requirements for the consolidated State plan.
299.15 Consultation and performance management.
299.16 Academic assessments.
299.17 Accountability, support, and improvement for schools.
299.18 Supporting excellent educators.
299.19 Supporting all students.
Subpart G--State Plans
Sec. 299.13 Overview of State plan requirements.
(a) In general. In order to receive a grant under a program
identified in paragraph (j) of this section, an SEA must submit a State
plan that meets the requirements in this section and:
(1) Consolidated State plan requirements detailed in Sec. Sec.
299.14 to 299.19; or
(2) Individual program application requirements under the Act
(hereinafter ``individual program State plan'') as detailed in
paragraph (k) of this section.
(b) Timely and meaningful consultation. In developing an initial
consolidated State plan or an individual program State plan, or
revising or amending an approved consolidated State plan or an
individual program State plan, an SEA must engage in timely and
meaningful consultation with stakeholders. To satisfy its consultation
obligations under this paragraph, each SEA must--
(1) Provide public notice, in a format and language, to the extent
practicable, that the public can access and understand in compliance
with the requirements under Sec. 200.21(b)(1) through (3), of the
SEA's processes and procedures for developing and adopting its
consolidated State plan or individual program State plan.
(2) Conduct outreach to, and solicit input from, the individuals
and entities listed in Sec. 299.15(a) for submission of a consolidated
State plan or the individuals and entities listed in the applicable
statutes for submission of an individual program State plan, in a
format and language, to the extent practicable, that the public can
access and understand in compliance with the requirements under Sec.
200.21(b)(1) through (3)--
(i) During the design and development of the SEA's plan to
implement the programs included in paragraph (j) of this section;
(ii) At a minimum, prior to initial submission of the consolidated
State plan or individual program State plan by making the plan
available for public comment for a period of not less than 30 days; and
(iii) Prior to the submission of any revisions or amendments to the
approved consolidated State plan or individual program State plan.
(3) Describe how the consultation and public comment were taken
into account in the consolidated State plan or individual program State
plan submitted for approval, including--
(i) How the SEA addressed the issues and concerns raised through
consultation and public comment; and
(ii) Any changes made as a result of consultation and public
comment.
(4) Meet the requirements under section 8540 of the Act regarding
consultation with the Governor, or appropriate officials from the
Governor's office, including--
(i) Consultation during the development of a consolidated State
plan or individual title I or title II State plan and prior to
submission of such plan to the Secretary; and
(ii) Procedures regarding the signature of such plan.
(c) Assurances. An SEA that submits either a consolidated State
plan or an individual program State plan must submit to the Secretary
the assurances included in section 8304 of the Act. An SEA also must
include the following assurances when submitting either a consolidated
State plan or an individual program State plan for the following
programs:
(1) Title I, part A. (i) In applying the same approach in all LEAs
to determine whether students who are enrolled in the same school for
less than half of the academic year as described in Sec. 200.20(b),
the SEA will assure that students who exit high school without a
regular high school diploma and do not transfer into another high
school that grants a regular high school diploma are counted in the
denominator for reporting the adjusted cohort graduation rate using one
of the following:
(A) At the school in which such student was enrolled for the
greatest proportion of school days while enrolled in grades 9 through
12; or
(B) At the school in which the student was most recently enrolled.
(ii) To ensure that children in foster care promptly receive
transportation, as necessary, to and from their schools of origin when
in their best interest under section 1112(c)(5)(B) of the Act, the SEA
must ensure that an LEA receiving funds under title I, part A of the
Act will collaborate with State and local child welfare agencies to
develop and implement clear written procedures that describe:
[[Page 86243]]
(A) How the requirements of section 1112(c)(5)(B) of the Act will
be met in the event of a dispute over which agency or agencies will pay
any additional costs incurred in providing transportation; and
(B) Which agency or agencies will initially pay the additional
costs so that transportation is provided promptly during the pendency
of the dispute.
(iii) The SEA must assure, under section 1111(g)(1)(B) of the Act,
that it will publish and annually update--
(A) The statewide differences in rates required under Sec.
299.18(c)(3);
(B) The percentage of teachers categorized in each LEA at each
effectiveness level established as part of the definition of
``ineffective teacher'' under Sec. 299.18(c)(2)(i), consistent with
applicable State privacy policies;
(C) The percentage of teachers categorized as out-of-field teachers
consistent with Sec. 200.37; and
(D) The percentage of teachers categorized as inexperienced
teachers consistent with Sec. 200.37.
(E) The information required under paragraphs (c)(1)(iii)(A)
through (D) of this section in a format and language, to the extent
practicable, that the public can access and understand in compliance
with the requirements under Sec. 200.21(b)(1) through (3) and
available at least on a Web site.
(2) Title III, part A. (i) In establishing the statewide entrance
procedures required under section 3113(b)(2) of the Act, the SEA must
ensure that:
(A) All students who may be English learners are assessed for such
status using a valid and reliable instrument within 30 days after
enrollment in a school in the State;
(B) It has established procedures for the timely identification of
English learners after the initial identification period for students
who were enrolled at that time but were not previously identified; and
(C) It has established procedures for removing the English learner
designation from any student who was erroneously identified as an
English learner, which must be consistent with Federal civil rights
obligations.
(ii) In establishing the statewide entrance and exit procedures
required under section 3113(b)(2) of the Act and Sec. 299.19(b)(4),
the SEA will ensure that the criteria are consistent with Federal civil
rights obligations.
(3) Title V, part b, subpart 2. The SEA will assure that, no later
than March of each year, it will submit data to the Secretary on the
number of students in average daily attendance for the preceding school
year in kindergarten through grade 12 for LEAs eligible for funding
under the Rural and Low-Income School program, as described under
section 5231 of the Act.
(d) Process for submitting an initial consolidated State plan or
individual program State plan. When submitting an initial consolidated
State plan or an individual program State plan, an SEA must adhere to
the following timeline and process.
(1) Assurances. In order to receive Federal allocations for the
programs included in paragraph (j) of this section, each SEA must
submit the required assurances described in paragraph (c) of this
section, and if submitting a consolidated State plan, the required
assurances under Sec. 299.14(c), on a date, time, and manner (e.g.,
electronic or paper) established by the Secretary.
(2) Submission deadlines. (i) Each SEA must submit to the
Department either a consolidated State plan or individual program State
plan for each program in paragraph (j) of this section on a date, time,
and manner (e.g., electronic or paper) established by the Secretary.
(ii) For the purposes of the period for Secretarial review under
sections 1111(a)(4)(A)(v) or 8451 of the Act, a consolidated State plan
or an individual program State plan is considered to be submitted on
the date and time established by the Secretary if it is received by the
Secretary on or prior to that date and time and addresses all of the
required components in Sec. 299.14 for a consolidated State plan or
all statutory and regulatory application requirements for an individual
program State plan.
(iii) Each SEA must submit either a consolidated State plan or an
individual program State plan for all of the programs in paragraph (j)
in a single submission on the date, time, and manner (e.g., electronic
or paper) established by the Secretary consistent with paragraph
(d)(2)(i) of this section.
(3) Extension for educator equity student-level data calculation.
If an SEA cannot calculate and report the data required under paragraph
Sec. 299.18(c)(3)(i) when submitting its initial consolidated State
plan or individual title I, part A State plan, the SEA may request a
three-year extension from the Secretary.
(i) To receive an extension, the SEA must indicate in its initial
consolidated State plan or individual title I, part A State plan that
it will calculate the statewide rates described under paragraph Sec.
299.18(c)(3)(i) using school-level data and provide a detailed plan and
timeline addressing the steps it will take to calculate and report, as
expeditiously as possible but no later than three years from the date
it submits its initial consolidated State plan or individual title I,
part A program State plan, the data required under Sec.
299.18(c)(3)(i) at the student level.
(ii) An SEA that receives an extension under this paragraph (d)(3)
must, when it submits either its initial consolidated State plan or
individual title I, part A program State plan, still calculate and
report the differences in rates based on school-level data consistent
with Sec. 299.18(c).
(e) Opportunity to revise initial State plan. An SEA may revise its
initial consolidated State plan or its individual program State plan in
response to a preliminary written determination by the Secretary. The
period for Secretarial review of a consolidated State plan or an
individual program State plan under sections 1111(a)(4)(A)(v) or 8451
of the Act is suspended while the SEA revises its plan. If an SEA fails
to resubmit a revised plan within 45 days of receipt of the preliminary
written determination, the Secretary may issue a final written
determination under sections 1111(a)(4)(A)(v) or 8451 of the Act.
(f) Publication of State plan. After the Secretary approves a
consolidated State plan or an individual program State plan, an SEA
must publish its approved consolidated State plan or individual program
State plan on the SEA's Web site in a format and language, to the
extent practicable, that the public can access and understand in
compliance with the requirements under Sec. 200.21(b)(1) through (3).
(g) Amendments and Significant Changes. If an SEA makes significant
changes to its approved consolidated State plan or individual program
State plan at any time, consistent with section 1111(a)(6)(B) of the
Act, such information must be submitted to the Secretary in the form of
an amendment to its State plan for review and approval. Prior to
submitting an amendment to its consolidated State plan or individual
program State plan, the SEA must engage in timely and meaningful
consultation, consistent with paragraph (b) of this section.
(h) Revisions. At least once every four years, an SEA must review
and revise its approved consolidated State plan or individual program
State plans. The SEA must submit its revisions to the Secretary for
review and approval. When reviewing and revising its consolidated State
plan or individual program State plan, each SEA must engage in timely
and meaningful consultation, consistent with paragraph (b) of this
section.
(i) Optional consolidated State plan. An SEA may submit either a
[[Page 86244]]
consolidated State plan or an individual program State plan for any
program identified in paragraph (j) of this section. An SEA that
submits a consolidated State plan is not required to submit an
individual program State plan for any of the programs to which the
consolidated State plan applies.
(j) Programs that may be included in a consolidated State plan. (1)
Under section 8302 of the Act, an SEA may include in a consolidated
State plan any programs authorized by--
(i) Title I, part A: Improving Basic Programs Operated by State and
Local Educational Agencies;
(ii) Title I, part C: Education of Migratory Children;
(iii) Title I, part D: Prevention and Intervention Programs for
Children and Youth Who Are Neglected, Delinquent, or At-Risk;
(iv) Title II, part A: Supporting Effective Instruction;
(v) Title III, part A: Language Instruction for English Learners
and Immigrant Students;
(vi) Title IV, part A: Student Support and Academic Enrichment
Grants;
(vii) Title IV, part B: 21st Century Community Learning Centers;
and
(viii) Title V, part B, subpart 2: Rural and Low-Income School
Program.
(2) In addition to the programs identified in paragraph (j)(1) of
this section, under section 8302(a)(1)(B) of the Act, an SEA may also
include in the consolidated State plan, as designated by the Secretary,
the Education for Homeless Children and Youths program under subtitle B
of title VII of the McKinney-Vento Homeless Assistance Act, as amended
by the ESSA.
(k) Individual program State plan requirements. An SEA that submits
an individual program State plan for one or more of the programs listed
in paragraph (j) of this section must address all State plan or
application requirements applicable to such programs as contained in
the Act and applicable regulations, including all required statutory
and programmatic assurances. In addition to addressing the statutory
and regulatory plan or application requirements for each individual
program, an SEA that submits an individual program State plan--
(1) For title I, part A, must:
(i) Meet the educator equity requirements in Sec. 299.18(c) in
order to address section 1111(g)(1)(B) of the Act; and
(ii) Meet the schoolwide waiver requirements in Sec. 299.19(c)(1)
in order to implement section 1114(a)(1)(B) of the Act;
(2) For title I, part C, must meet the education of migratory
children requirements in Sec. 299.19(b)(2) in order to address
sections 1303(f)(2), 1304(d), and 1306(b)(1)of the Act; and
(3) For title III, must meet the English learner requirements in
Sec. 299.19(b)(4) in order to address section 3113(b)(2) of the Act.
(l) Compliance with program requirements. Each SEA must administer
all programs in accordance with all applicable statutes, regulations,
program plans, and approved applications, and maintain documentation of
this compliance.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 6571(a), 7801(11), 7842, 7844,
7871)
Sec. 299.14 Requirements for the consolidated State plan.
(a) Purpose. Pursuant to section 8302 of the Act, the Department
defines the procedures under which an SEA may submit a consolidated
State plan for any or all of the programs listed in Sec. 299.13(j).
(b) Framework for the consolidated State plan. Each consolidated
State plan must address the requirements in Sec. Sec. 299.15 through
299.19 for the following five components and their corresponding
elements:
(1) Consultation and performance management.
(2) Academic assessments.
(3) Accountability, support, and improvement for schools.
(4) Supporting excellent educators.
(5) Supporting all students.
(c) Assurances. In addition to the assurances in Sec. 299.13(c),
an SEA must include the following assurances on a date, time, and
manner (e.g., electronic or paper) established by the Secretary as part
of its consolidated State plan:
(1) Coordination. The SEA must assure that it coordinated its plans
for administering the included programs, other programs authorized
under the ESEA, as amended by the ESSA, and the Individuals with
Disabilities Education Act (IDEA), the Rehabilitation Act, the Carl D.
Perkins Career and Technical Education Act of 2006, the Workforce
Innovation and Opportunity Act, the Head Start Act, the Child Care and
Development Block Grant Act of 1990, the Education Sciences Reform Act
of 2002, the Education Technical Assistance Act of 2002, the National
Assessment of Educational Progress Authorization Act, and the Adult
Education and Family Literacy Act.
(2) Challenging academic standards and academic assessments. The
SEA must assure that the State will meet the standards and assessments
requirements of sections 1111(b)(1)(A) through (F) and 1111(b)(2) of
the Act and applicable regulations.
(3) State support and improvement for low-performing schools. The
SEA must assure that it will approve, monitor, and periodically review
LEA comprehensive support and improvement plans consistent with
requirements in section 1111(d)(1)(B)(v) and (vi) of the Act and Sec.
200.21(e).
(4) Participation by private school children and teachers. The SEA
must assure that it will meet the requirements of sections 1117 and
8501 of the Act regarding the participation of private school children
and teachers.
(5) Appropriate identification of children with disabilities. The
SEA must assure that it has policies and procedures in effect regarding
the appropriate identification of children with disabilities consistent
with the child find and evaluation requirements in section 612(a)(3)
and (a)(7) of the IDEA, respectively.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 7842)
Sec. 299.15 Consultation and performance management.
(a) Consultation. In its consolidated State plan, each SEA must
describe how it engaged in timely and meaningful consultation
consistent with Sec. 299.13(b) with stakeholders in the development of
the four components identified in Sec. Sec. 299.16 through 299.19 of
its consolidated plan. The stakeholders must include, at a minimum, the
following individuals and entities and must reflect the geographic
diversity of the State:
(1) The Governor, or appropriate officials from the Governor's
office;
(2) Members of the State legislature;
(3) Members of the State board of education (if applicable);
(4) LEAs, including LEAs in rural areas;
(5) Representatives of Indian tribes located in the State;
(6) Teachers, principals, other school leaders, paraprofessionals,
specialized instructional support personnel, and organizations
representing such individuals;
(7) Charter school leaders, if applicable;
(8) Parents and families;
(9) Community-based organizations;
(10) Civil rights organizations, including those representing
students with disabilities, English learners, and other historically
underserved students;
(11) Institutions of higher education (IHEs);
[[Page 86245]]
(12) Employers;
(13) Representatives of private school students;
(14) Early childhood educators and leaders; and
(15) The public.
(b) Performance management and technical assistance. In its
consolidated State plan, each SEA must describe its system of
performance management of SEA and LEA plans consistent with its
consolidated State plan. This description must include--
(1) The SEA's process for supporting the development, review, and
approval of the activities in LEA plans in accordance with statutory
and regulatory requirements, which should address how the SEA will
determine if LEA activities are aligned with the specific needs of the
LEA and the SEA's strategies described in its consolidated State plan.
(2) The SEA's plan to--
(i) Collect and use data and information, which may include input
from stakeholders and data collected and reported under section 1111(h)
of the Act, to assess the quality of SEA and LEA implementation of
strategies and progress toward meeting the desired program outcomes;
(ii) Monitor SEA and LEA implementation of included programs using
the data in paragraph (b)(2)(i) of this section to ensure compliance
with statutory and regulatory requirements; and
(iii) Continuously improve SEA and LEA plans and implementation;
and
(3) The SEA's plan to provide differentiated technical assistance
to LEAs and schools to support effective implementation of SEA, LEA,
and other subgrantee strategies.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 7842)
Sec. 299.16 Academic assessments.
(a) In its consolidated State plan, if the State administers end-
of-course mathematics assessments to high school students to meet the
requirements under section 1111(b)(2)(B)(v)(I)(bb) of the Act and uses
the exception for students in eighth grade to take such assessments
under section 1111(b)(2)(C) of the Act, describe how the State is
complying with the requirements of section 1111(b)(2)(C) and applicable
regulations; and
(b) In its consolidated State plan, each SEA must describe how the
State is complying with the requirements related to assessments in
languages other than English consistent with section 1111(b)(2)(F) of
the Act and applicable regulations.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 7842)
Sec. 299.17 Accountability, support, and improvement for schools.
(a) Long-term goals. In its consolidated State plan, each SEA must
provide its baseline, measurements of interim progress, and long-term
goals and describe how it established its ambitious long-term goals and
measurements of interim progress, for academic achievement, graduation
rates, and English language proficiency, and its State-determined
timeline for attaining such goals, consistent with the requirements in
section 1111(c)(4)(A) of the Act and Sec. 200.13.
(b) Accountability system. In its consolidated State plan, each SEA
must describe its statewide accountability system consistent with the
requirements of section 1111(c) of the Act and Sec. 200.12,
including--
(1) The measures included in each of the indicators under Sec.
200.14(b) and how those measures meet the requirements described in
section 1111(c)(4)(B) of the Act and Sec. 200.14;
(2) The subgroups of students from each major racial and ethnic
group, consistent with Sec. 200.16(a)(2), and any additional subgroups
of students used in the accountability system;
(3) If applicable, the statewide uniform procedures for:
(i) Former children with disabilities in the children with
disabilities subgroup consistent with Sec. 200.16(b);
(ii) Former English learners in the English learner subgroup
consistent with Sec. 200.16(c)(1); and
(iii) Recently arrived English learners in the State to determine
if an exception applies to an English learner consistent with section
1111(b)(3) of the Act and Sec. 200.16(c)(3) and (4);
(4) The minimum number of students that the State determines are
necessary to be included in each of the subgroups of students
consistent with Sec. 200.17(a)(2) and (3);
(5) The State's system for meaningfully differentiating all public
schools in the State, including public charter schools, consistent with
the requirements of section 1111(c)(4)(C) of the Act and Sec. 200.18,
including--
(i) The distinct and discrete levels of school performance, and how
they are calculated, under Sec. 200.18(a)(2) on each indicator in the
statewide accountability system;
(ii) The weighting of each indicator, including how certain
indicators receive substantial weight individually and much greater
weight in the aggregate, consistent with Sec. 200.18(b) and (c)(1) and
(2);
(iii) The summative determinations, including how they are
calculated, that are provided to schools under Sec. 200.18(a)(4); and
(iv) How the system for meaningful differentiation and the
methodology for identifying schools under Sec. 200.19 will ensure that
schools with low performance on substantially weighted indicators are
more likely to be identified for comprehensive support and improvement
or targeted support and improvement, consistent with Sec. 200.18(c)(3)
and (d)(1)(ii);
(6) How the State is factoring the requirement for 95 percent
student participation in assessments into its system of annual
meaningful differentiation of schools consistent with the requirements
of Sec. 200.15;
(7) The State's uniform procedure for averaging data, including
combining data across school years, combining data across grades, or
both, as defined in Sec. 200.20(a), if applicable;
(8) If applicable, how the State includes all public schools in the
State in its accountability system if it is different from the
methodology described in paragraph (b)(5), consistent with Sec.
200.18(d)(1)(iii).
(c) Identification of schools. In its consolidated State plan, each
SEA must describe--
(1) The methodologies, including the timeline, by which the State
identifies schools for comprehensive support and improvement under
section 1111(c)(4)(D)(i) of the Act and Sec. 200.19(a), including:
(i) Lowest-performing schools;
(ii) Schools with low high school graduation rates; and
(iii) Schools with chronically low-performing subgroups;
(2) The uniform statewide exit criteria for schools identified for
comprehensive support and improvement established by the State,
including the number of years over which schools are expected to meet
such criteria, under section 1111(d)(3)(A)(i) of the Act and consistent
with the requirements in Sec. 200.21(f)(1);
(3) The State's methodology for identifying any school with a
``consistently underperforming'' subgroup of students, including the
definition and time period used by the State to determine consistent
underperformance, under Sec. 200.19(b)(1) and (c);
(4) The State's methodology, including the timeline, for
identifying schools with low-performing subgroups of students under
Sec. 200.19(b)(2) and (d) that must receive additional targeted
support in accordance with section 1111(d)(2)(C) of the Act; and
[[Page 86246]]
(5) The uniform exit criteria, established by the SEA, for schools
participating under title I, part A with low-performing subgroups of
students established by the State, including the number of years over
which schools are expected to meet such criteria, consistent with the
requirements in Sec. 200.22(f).
(d) State support and improvement for low-performing schools. In
its consolidated State plan, each SEA must describe--
(1) How the SEA will meet its responsibilities, consistent with the
requirements described in Sec. 200.24(d) under section 1003 of the
Act, including the process to award school improvement funds to LEAs
and monitoring and evaluating the use of funds by LEAs;
(2) The technical assistance it will provide to each LEA in the
State serving a significant number or percentage of schools identified
for comprehensive or targeted support and improvement, including how it
will provide technical assistance to LEAs to ensure the effective
implementation of evidence-based interventions, consistent with Sec.
200.23(b), and, if applicable, the list of State-approved, evidence-
based interventions for use in schools implementing comprehensive or
targeted support and improvement plans consistent with Sec.
200.23(c)(2) and (3);
(3) The more rigorous interventions required for schools identified
for comprehensive support and improvement that fail to meet the State's
exit criteria within a State-determined number of years consistent with
section 1111(d)(3)(A)(i) of the Act and Sec. 200.21(f)(3)(iii); and
(4) How the SEA will periodically review, identify, and, to the
extent practicable, address any identified inequities in resources to
ensure sufficient support for school improvement in each LEA in the
State serving a significant number or percentage of schools identified
for comprehensive or targeted support and improvement consistent with
the requirements in section 1111(d)(3)(A)(ii) of the Act and Sec.
200.23(a).
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3747, 7842)
Sec. 299.18 Supporting excellent educators.
(a) Educator development, retention, and advancement. In its
consolidated State plan, consistent with sections 2101 and 2102 of the
Act, if an SEA intends to use funds under one or more of the included
programs for this purpose, the SEA must describe--
(1) The State's system of certification and licensing of teachers
and principals or other school leaders;
(2) The State's strategies to improve educator preparation programs
consistent with section 2101(d)(2)(M) of the Act, particularly for
educators of low-income and minority students; and
(3) The State's systems of professional growth and improvement, for
educators that addresses induction, development, consistent with the
definition of professional development in section 8101(42) of the Act,
compensation, and advancement for teachers, principals, and other
school leaders which may also include how the SEA will work with LEAs
in the State to develop or implement systems of professional growth and
improvement, consistent with 2102(b)(2)(B) of the Act, or State or
local teacher, principal, or other school leader evaluation and support
systems consistent with section 2101(c)(4)(B)(ii) of the Act.
(b) Support for educators. (1) In its consolidated State plan, each
SEA must describe how it will use title II, part A funds and funds from
other included programs, consistent with allowable uses of funds
provided under those programs, to support State-level strategies
designed to:
(i) Increase student achievement consistent with the challenging
State academic standards;
(ii) Improve the quality and effectiveness of teachers, principals,
and other school leaders;
(iii) Increase the number of teachers, principals, and other school
leaders who are effective in improving student academic achievement in
schools; and
(iv) Provide low-income and minority students greater access to
effective teachers, principals, and other school leaders consistent
with the provisions described in paragraph (c) of this section.
(2) In its consolidated State plan, each SEA must describe how the
SEA will improve the skills of teachers, principals, or other school
leaders in identifying students with specific learning needs and
providing instruction based on the needs of such students consistent
with section 2101(d)(2)(J) of the Act.
(c) Educator equity. (1) Each SEA must describe, consistent with
section 1111(g)(1)(B) of the Act, whether low-income and minority
students enrolled in schools that receive funds under title I, part A
of the Act are taught at different rates by ineffective, out-of-field,
or inexperienced teachers compared to non-low-income and non-minority
students enrolled in schools not receiving funds under title I, part A
of the Act in accordance with paragraph (c)(3) of this section.
(2) For the purposes of this section, each SEA must establish and
provide in its State plan a different definition, using distinct
criteria, for each of the terms included in paragraphs (c)(2)(i)
through (vi) of this section--
(i) A statewide definition of ``ineffective teacher'', or statewide
guidelines for LEA definitions of ``ineffective teacher'', that
differentiates between categories of teachers and provides useful
information about educator equity;
(ii) A statewide definition of ``out-of-field teacher'' consistent
with Sec. 200.37 that provides useful information about educator
equity;
(iii) A statewide definition of ``inexperienced teacher''
consistent with Sec. 200.37 that provides useful information about
educator equity;
(iv) A statewide definition of ``low-income student'';
(v) A statewide definition of ``minority student'' that includes,
at a minimum, race, color, and national origin, consistent with title
VI of the Civil Rights Act of 1964; and
(vi) Such other definitions for any other key terms that a State
elects to define and use for the purpose of meeting the requirements in
paragraph (c)(1) of this section.
(3) For the purpose of the required description under paragraph
(c)(1) of this section--
(i) Rates. Each SEA must annually calculate, using student-level
data, except as permitted under Sec. 299.13(d)(3), the statewide rates
at which--
(A) Low-income students enrolled in schools receiving funds under
title I, part A of the Act, are taught by--
(1) Ineffective teachers;
(2) Out-of-field teachers; and
(3) Inexperienced teachers; and
(B) Non-low-income students enrolled in schools not receiving funds
under title I, part A of the Act, are taught by--
(1) Ineffective teachers;
(2) Out-of-field teachers; and
(3) Inexperienced teachers; and
(C) Minority students enrolled in schools receiving funds under
title I, part A of the Act are taught by--
(1) Ineffective teachers;
(2) Out-of-field teachers; and
(3) Inexperienced teachers; and
(D) Non-minority students enrolled in schools not receiving funds
under title I, part A of the Act are taught by--
(1) Ineffective teachers;
(2) Out-of-field teachers; and
(3) Inexperienced teachers.
(ii) Other rates. Each SEA may annually calculate and report
statewide
[[Page 86247]]
at the student level, except as permitted under Sec. 299.13(d)(3), the
rates at which students represented by any other key terms that a State
elects to define and use for the purpose of this section are taught by
ineffective teachers, out-of-field teachers, and inexperienced
teachers.
(iii) Statewide differences in rates. Each SEA must calculate the
differences, if any, between the rates calculated in paragraph
(c)(3)(i)(A) and (B), and between the rates calculated in paragraph
(c)(3)(i)(C) and (D) of this section.
(4) Each SEA must provide the Web address or URL of or a direct
link to where it will publish and annually update the rates and
differences in rates calculated under paragraph (c)(3) of this section
and report on the rates and differences in rates in the manner
described in Sec. 299.13(c)(1)(iii), consistent with the Family
Educational Rights and Privacy Act, 20 U.S.C. 1232g, and applicable
regulations.
(5) Each SEA that describes, under paragraph (c)(1) of this
section, that low-income or minority students enrolled in schools
receiving funds under title I, part A of this Act are taught at higher
rates, which are rates where any of the statewide differences in rates
calculated under paragraph (c)(3)(iii) is greater than zero, by
ineffective, out-of-field, or inexperienced teachers must--
(i) Describe the likely causes (e.g., teacher shortages, working
conditions, school leadership, compensation, or other causes), which
may vary across districts or schools, of the most significant statewide
differences in rates described in paragraph (c)(1) of this section
including by identifying whether those differences in rates reflect
gaps between districts, within districts, and within schools;
(ii) Provide its strategies, including timelines and Federal or
non-Federal funding sources, that are--
(A) Designed to address the likely causes of the most significant
differences in rates identified under paragraph (c)(5)(i) of this
section; and
(B) Prioritized to address the most significant differences in
rates identified under paragraph (c)(1) of this section as identified
by the SEA, including by prioritizing strategies to support any schools
identified for comprehensive or targeted support and improvement under
Sec. 200.19 that are contributing to those differences in rates; and
(iii) Describe its timelines and interim targets for eliminating
all differences in rates identified under paragraph (c)(1).
(6) To meet the requirements of section 1111(g)(1)(B) of the Act,
an SEA may--
(i) Direct an LEA, including an LEA that contributes to the
differences in rates described by the SEA in paragraph (c)(1) of this
section, to use a portion of its title II, part A, funds in a manner
that is consistent with allowable activities identified in section
2103(b) of the Act to provide low-income and minority students greater
access to effective teachers, principals, and other school leaders; and
(ii) Require an LEA to describe in its title II, part A plan or
consolidated local plan how it will use title II, part A funds to
address differences in rates described by the SEA in paragraph (c)(1)
of this section and deny an LEA's application for title II, part A
funds if an LEA fails to describe how it will address such differences
in rates or fails to meet other local application requirements
applicable to title II, part A.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 7842)
Sec. 299.19 Supporting all students.
(a) Well-rounded and supportive education for students. (1) In its
consolidated State plan, each SEA must describe how it will use title
IV, part A funds and funds from other included programs, consistent
with allowable uses of funds provided under those programs, to support
State-level strategies and LEA use of funds designed to ensure that all
children have a significant opportunity to meet challenging State
academic standards and career and technical standards, as applicable,
and attain, at a minimum, a regular high school diploma consistent with
Sec. 200.34. This description must:
(i) Address the State's strategies and how it will support LEAs to
support the continuum of a student's education from preschool through
grade 12, including transitions from early childhood education to
elementary school, elementary school to middle school, middle school to
high school, and high school to post-secondary education and careers,
in order to support appropriate promotion practices and decrease the
risk of students dropping out;
(ii) Address the State's strategies and how it will support LEAs to
provide equitable access to a well-rounded education and rigorous
coursework in subjects in which female students, minority students,
English learners, children with disabilities, or low-income students
are underrepresented, such as English, reading/language arts, writing,
science, technology, engineering, mathematics, foreign languages,
civics and government, economics, arts, history, geography, computer
science, music, career and technical education, health, or physical
education; and
(iii) Describe how, when developing its State strategies in
paragraph (1) and, as applicable, paragraph (2), the SEA considered the
academic and non-academic needs of the subgroups of students in its
State including:
(A) Low-income students.
(B) Lowest-achieving students.
(C) English learners.
(D) Children with disabilities.
(E) Children and youth in foster care.
(F) Migratory children, including preschool migratory children and
migratory children who have dropped out of school.
(G) Homeless children and youths.
(H) Neglected, delinquent, and at-risk students identified under
title I, part D of the Act, including students in juvenile justice
facilities.
(I) Immigrant children and youth.
(J) Students in LEAs eligible for grants under the Rural and Low-
Income School program under section 5221 of the Act.
(K) American Indian and Alaska Native students.
(2) If an SEA intends to use title IV, part A funds or funds from
other included programs for the activities that follow, the description
must address how the State strategies in this paragraph support the
State-level strategies in paragraph (a)(1) of this section to:
(i) Support LEAs to improve school conditions for student learning,
including activities that create safe, healthy, and affirming school
environments inclusive of all students to reduce--
(A) Incidents of bullying and harassment;
(B) The overuse of discipline practices that remove students from
the classroom, such as out-of-school suspensions and expulsions; and
(C) The use of aversive behavioral interventions that compromise
student health and safety;
(ii) Support LEAs to effectively use technology to improve the
academic achievement and digital literacy of all students; and
(iii) Support LEAs to engage parents, families, and communities.
(b) Program-specific requirements--(1) Title I, part A. Each SEA
must describe the process and criteria it will use to waive the 40
percent schoolwide poverty threshold under section 1114(a)(1)(B) of the
Act submitted by an LEA on behalf of a school, including how the SEA
will ensure that the schoolwide program will best serve the needs of
the lowest-achieving students in the school.
[[Page 86248]]
(2) Title I, part C. Each SEA must describe--
(i) How the SEA and its local operating agencies (which may include
LEAs) will--
(A) Establish and implement a system for the proper identification
and recruitment of eligible migratory children on a statewide basis,
including the identification and recruitment of preschool migratory
children and migratory children who have dropped out of school, and how
the SEA will verify and document the number of eligible migratory
children aged 3 through 21 residing in the State on an annual basis;
(B) Identify the unique educational needs of migratory children,
including preschool migratory children and migratory children who have
dropped out of school, and other needs that must be met in order for
migratory children to participate effectively in school;
(C) Ensure that the unique educational needs of migratory children,
including preschool migratory children and migratory children who have
dropped out of school, and other needs that must be met in order for
migratory children to participate effectively in school, are addressed
through the full range of services that are available for migratory
children from appropriate local, State, and Federal educational
programs; and
(D) Use funds received under title I, part C to promote interstate
and intrastate coordination of services for migratory children,
including how the State will provide for educational continuity through
the timely transfer of pertinent school records, including information
on health, when children move from one school to another, whether or
not such move occurs during the regular school year (i.e., use of the
Migrant Student Information Exchange (MSIX), among other vehicles);
(ii) The unique educational needs of the State's migratory
children, including preschool migratory children and migratory children
who have dropped out of school, and other needs that must be met in
order for migratory children to participate effectively in school,
based on the State's most recent comprehensive needs assessment;
(iii) The current measurable program objectives and outcomes for
title I, part C, and the strategies the SEA will pursue on a statewide
basis to achieve such objectives and outcomes;
(iv) How it will ensure there is consultation with parents of
migratory children, including parent advisory councils, at both the
State and local level, in the planning and operation of title I, part C
programs that span not less than one school year in duration,
consistent with section 1304(c)(3) of the Act;
(v) Its priorities for the use of title I, part C funds,
specifically related to the needs of migratory children with ``priority
for services'' under 1304(d) of the Act, including:
(A) What measures and sources of data the SEA, and if applicable,
its local operating agencies, which may include LEAs, will use to
identify those migratory children who are a priority for services; and
(B) When and how the SEA will communicate those determinations to
all local operating agencies, which may include LEAs, in the State.
(3) Title I, part D. In its consolidated State plan, each SEA must
include:
(i) A plan for assisting in the transition of children and youth
between correctional facilities and locally operated programs; and
(ii) A description of the program objectives and outcomes
established by the State that will be used to assess the effectiveness
of the program in improving the academic, career, and technical skills
of children in the program, including the knowledge and skills needed
to earn a regular high school diploma and make a successful transition
to postsecondary education, career and technical education, or
employment.
(4) Title III, part A. (i) Each SEA must describe its standardized
entrance and exit procedures for English learners, consistent with
section 3113(b)(2) of the Act. These procedures must include valid and
reliable, objective criteria that are applied consistently across the
State.
(ii) At a minimum, the standardized exit criteria must--
(A) Include a score of proficient on the State's annual English
language proficiency assessment;
(B) Be the same criteria used for exiting students from the English
learner subgroup for title I reporting and accountability purposes; and
(C) Not include performance on an academic content assessment.
(5) Title IV, part B. In its consolidated State plan, each SEA must
describe, consistent with the strategies identified in (a)(1) of this
section and to the extent permitted under applicable law and
regulations:
(i) How it will use title IV, part B funds, and other Federal funds
to support State-level strategies and
(ii) The processes, procedures, and priorities used to award
subgrants.
(6) Title V, part B, subpart 2. In its consolidated State plan,
each SEA must provide its specific measurable program objectives and
outcomes related to activities under the Rural and Low-Income School
program, if applicable.
(7) McKinney-Vento Education for Homeless Children and Youths
program. In its consolidated State plan, each SEA must describe--
(i) The procedures it will use to identify homeless children and
youths in the State and assess their needs;
(ii) Programs for school personnel (including liaisons designated
under section 722(g)(1)(J)(ii) of the McKinney-Vento Homeless
Assistance Act, as amended, principals and other school leaders,
attendance officers, teachers, enrollment personnel, and specialized
instructional support personnel) to heighten the awareness of such
school personnel of the specific needs of homeless children and youths,
including such children and youths who are runaway and homeless youths;
(iii) Its procedures to ensure that--
(A) Disputes regarding the educational placement of homeless
children and youths are promptly resolved;
(B) Youths described in section 725(2) of the McKinney-Vento
Homeless Assistance Act, as amended, and youths separated from the
public schools are identified and accorded equal access to appropriate
secondary education and support services, including by identifying and
removing barriers that prevent youths described in this paragraph from
receiving appropriate credit for full or partial coursework
satisfactorily completed while attending a prior school, in accordance
with State, local, and school policies;
(C) Homeless children and youths have access to public preschool
programs, administered by the SEA or LEA, as provided to other children
in the State;
(D) Homeless children and youths who meet the relevant eligibility
criteria do not face barriers to accessing academic and extracurricular
activities; and
(E) Homeless children and youths who meet the relevant eligibility
criteria are able to participate in Federal, State, and local nutrition
programs; and
(iv) Its strategies to address problems with respect to the
education of homeless children and youths, including problems resulting
from enrollment delays and retention, consistent with sections
722(g)(1)(H) and (I) of the McKinney-Vento Homeless Assistance Act, as
amended.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 1221e-3, 3474, 7842)
[FR Doc. 2016-27985 Filed 11-28-16; 8:45 am]
BILLING CODE 4000-01-P