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With not much chance that the federal No Child Left Behind Act will be reauthorized by Congress any time soon, the current presidential administration used the last months in office to take matters into its own hands. Some of the changes made were in response to a growing chorus of protests from states and educators about troublesome aspects of the current NCLB, such as the lack of provisions for counting student growth as a means of meeting Adequate Yearly Progress (AYP). Some 400 stakeholders, including TCTA, made their opinions known on proposed regulations issued this spring. Following is an analysis of the final regulations released in late October by the U.S. Secretary of Education, as well as the status of TCTA’s input.

Assessments and multiple measures
The final regulations clarify that student achievement does not have to be determined based on a single assessment. The law has always required "multiple measures" of achievement to ensure that the assessment system measures the full range of cognitive complexity in the state's academic standards. The regulations further clarify that states can use a single test or several tests and can rely on one item format or several item formats (such as multiple choice or constructed response). In response to public comments, the U.S. Department of Education (USDE) stated that the regulations do not prevent a state, when determining AYP, from using results from other measures of student achievement such as local assessments, curriculum-embedded assessments and performance assessments, provided those measures are submitted for peer review and determined by the Secretary to meet the statutory and regulatory requirements. (TCTA commented that although we support the clarification, we are concerned about possible increases in assessments, which would inevitably intrude upon instruction).

USDE also noted that current law and regulations both require and permit states to use non-test-based measures in AYP determinations and that a state may, at its discretion, also include additional academic indicators, such as the percentage of students completing advanced placement courses and retention rates.

TCTA additionally commented that we are deeply concerned about the testing requirements for special education students imposed by the Act and regulations, particularly the requirement that only one percent of the tested student population, consisting of students with significant cognitive disabilities, may be assessed with alternate standards, but that the assessment must be linked to the grade-level curriculum through prerequisite skills. The requirement that the assessment be linked to grade-level curriculum is entirely unrealistic and irrelevant to many of these students who, as it is, are barely functioning several grade levels below their age-group grade. Additionally, it has resulted in teachers having to devote an extraordinary amount of time and paperwork to show how the prerequisite skills demonstrated are linked to grade-level curriculum. While the burden on teachers may be partly due to state decisions about how to implement the testing requirement, the larger issue of requiring these students to take an assessment linked to grade-level curriculum stems from federal law/regulations, and accordingly TCTA asked USDE to reconsider these requirements to the fullest extent possible.

Inclusion of NAEP data on state and local report cards
Current law and regulations require states and selected districts to participate in the National Assessment of Educational Progress (NAEP) in reading and mathematics for grades 4 and 8 in order to receive Title I funds. The final regulations require a state to report the most recent available academic achievement results from NAEP reading and mathematics assessments on the same public report card as it reports the results of state assessments. Additionally, local school districts are required to report the state NAEP assessment data on their report cards.

TCTA (and others) had commented that although we agree with the requirement to include state NAEP results on the state report card, we do not understand the need for local school districts to report that information on local school district report cards. Only a small sample of Texas schools and districts participate in the NAEP testing program and so the state NAEP results bear no particular relevance to any given local school district. Additionally the inclusion of this information is likely to cause confusion among the public. Accordingly we suggested eliminating this requirement for local school districts.

When issuing the final regulations, USDE responded that “While we agree that including NAEP results on LEA report cards will not likely help a parent decide which school their child should attend, we believe that the data will give parents an important comparison between the percent of students proficient according to State standards and assessments and the percent of students proficient on the NAEP. Therefore, we disagree with commenters who recommended that we require NAEP results to be included only on State report cards. Recognizing commenters’ concerns, as described later in this section regarding the burden of including NAEP data on State and LEA report cards, however, we are revising the regulations to require that the achievement data be disaggregated for each subgroup for which AYP determinations are made only on the State’s report card but that both must report the participation rates for students with disabilities and the participation rates for LEP students. Finally, we note that States and LEAs (school districts) may use their Title I, Part A administrative funds to pay for the staff time and resources needed to make these changes to their report cards.”

Minimum subgroup size and inclusion of students in accountability
Current law requires states to disaggregate student performance results on assessments by student subgroups. The law allows states to define the minimum number of students included in a student subgroup in order to be statistically valid and reliable. Concerned that some states were specifying a minimum size that is too large, which results in too many students whose assessment results aren’t included in the federal accountability system, USDE issued final regulations which require each state to revise its Consolidated State Application Accountability Workbook to include:

(1) how their subgroup size and the other components of the state's definition of AYP (e.g., confidence intervals, indexes, definition of full academic year) provide statistically reliable information while ensuring the maximum inclusion of subgroups, particularly at the school level, in AYP determinations;

(2) an explanation of how other components of the state's AYP definition, in addition to the state's minimum subgroup size, interact to affect the statistical reliability of the data and to ensure maximum inclusion of all students and student subgroups; and

(3) information on the number and percentage of students and student subgroups excluded from school-level accountability determinations.

States that propose large minimum subgroup sizes and include other components in their AYP definitions that result in the exclusion of large numbers of students or student subgroups would be subject to close scrutiny.

States must submit to USDE their revised Accountability Workbook for technical assistance and peer review in time to implement the new regulatory requirements for AYP determinations based on the 2009–10 school year assessment results.

(Texas has defined its minimum student subgroup size for districts and campuses as 50 or more students, and the student group must comprise at least 10 percent of all students, OR 200 students in the student group, even if that group represents less than 10 percent of all students.)

Uniform definition of "Graduation Rate"
Current law allows a state to determine its own definition of graduation rate and set a graduation goal that must be met as well as standards for improvement toward meeting the goal for purposes of meeting AYP. Due to concerns about the wide variations among states in graduation rate definitions and goals, the final regulations require that states use a uniform and accurate method of calculating graduation rates.

The required graduation rate is the number of students who graduate in the standard number of years with a regular high school diploma divided by the number of students who form the “adjusted cohort'' for that graduating class. The “adjusted cohort'' is the group of students who entered the 9th grade four years earlier, and any students who transferred into or entered the cohort in grades 9 through 12, minus any students removed from the cohort. To remove a student from the cohort, a school or school district is required to confirm that the student either enrolled in another educational program that culminates in the award of a regular high school diploma or is deceased. A student who is retained in grade, enrolls in a GED program, or leaves school for any other reason would remain in the adjusted cohort for the purposes of calculating the graduation rate. (Texas defines its graduation rate as the percent of students entering 9th grade and classified as graduates four years later and, apparently, this meets the USDE proposed graduation rate.)

Although the proposed regulations, supported by TCTA and others, would have permitted a state to propose, for approval by the Secretary, an alternate definition of “standard number of years” that would apply to limited categories of students who, under certain conditions, may take longer to graduate, the final regulations eliminated this option, due to concerns expressed by many that if states are permitted to propose their own categories of students and alternate definitions of “standard number of years,” graduation rates will remain difficult, if not impossible, to compare across states.

Instead, and still responsive to concerns about students who may take longer than four years to graduate, the final regulations permit a state to include in its AYP definition, subject to approval by the Secretary, an “extended-year adjusted cohort graduation rate.” This extended-year graduation rate would include students who graduate in four years or more with a regular high school diploma. States may decide to include one or more years beyond the standard four years (e.g., an extended-year graduation rate that combines a five-year rate and a six-year rate). A state may also choose to have more than one extended-year graduation rate (e.g., a five-year rate and a six-year rate) without combining those rates into one extended-year graduation rate.

Regarding the ultimate graduation goals that must be met, the proposed regulations allowed high schools to either meet a state-defined graduation rate goal (e.g., 90 percent), as approved by the Secretary of Education, or to demonstrate continuous and substantial improvement from the prior year toward meeting or exceeding that goal, as defined by the state and approved by the Secretary of Education. (The Texas graduation rate goal is currently 70 percent, or improvement of at least one percent from the previous year's rate.) However, in response to concerns from commenters that the proposed regulations should have been clearer in requiring states to set a single graduation goal and to set specific targets toward meeting or exceeding that goal, the final regulations require states to set a single graduation rate goal that represents the rate the state expects all high schools in the state to meet (but does not require that those targets be the same for every high school) and to set annual graduation rate targets that reflect continuous and substantial improvement from the prior year toward meeting or exceeding the graduation rate goal.

Although current law doesn't require the graduation rate to be disaggregated by student subgroup for purposes of meeting AYP, it is required for reporting purposes. Due to USDE concerns that simply reporting disaggregated graduation rate data is not sufficient to ensure that graduation rates improve for all students, the final regulations require each state to disaggregate the graduation rate data at the local school district and state levels for determining AYP. TCTA and others commented on whether there’s a need to maintain student subgroups by race when substantial evidence exists to show that socioeconomic status is a more meaningful indicator regarding student performance than race; and that, if USDE insists upon maintaining student subgroups by race, perhaps further disaggregation of student racial subgroups by socioeconomic status might be necessary to reveal a more accurate picture (by socioeconomic status) of student performance in each subgroup by race. USDE responded that “Although the Department understands the intent of these commenters, we do not think it would be appropriate or beneficial to change the requirements for disaggregating graduation rates beyond the subgroups described in §200.13(b)(7)(ii) that are used for determining AYP. We believe that requiring disaggregation of data for these subgroups is sufficient to ensure meaningful and comprehensive accountability for all high schools and school districts with respect to graduation rate. Further, we are concerned that the more specific the subgroup categories, the less likely they would actually be reflected in accountability decisions because too few students would likely fall into a given category.”

Although the proposed regulations required the new graduation rates to be implemented in the 2008-09 school year, the USDE recognized that additional time is needed for states to implement new graduation rate goals and targets, and changed the timeline in the final regulations to require that for AYP decisions, states must use the four-year adjusted cohort graduation rate at the state, district, and school levels, including disaggregated graduation rates for all required subgroups, based on assessments administered in the 2011-12 school year. For states unable to meet the 2010-11 deadline for reporting the four-year adjusted cohort graduation rate, the final regulations allow such states to request an extension of that deadline from the Secretary of Education. To receive an extension, a state must submit, by March 2, 2009, satisfactory evidence demonstrating that it cannot meet the deadline and a detailed plan and timeline addressing the steps the state will take to implement, as expeditiously as possible, a graduation rate consistent with the requirements of the final regulations. As a condition of approving an extension, the Secretary may require the state to use a more rigorous transitional graduation rate than it has been using until such time as the state is able to implement the four-year adjusted cohort graduation rate. The USDE will use the state’s plan and timeline to provide technical assistance and support to the state to implement the four-year rate as soon as possible. A state that receives an extension must use its transitional graduation rate, in the aggregate and disaggregated by subgroups, to make AYP determinations based on the 2011–12 school year assessment results.

Including individual student growth in AYP
Current law does not allow states to use individual student academic growth measures as a means to meet AYP; however due to numerous complaints from states and educators that student growth measures give a more fair and accurate picture of student achievement, the final regulations permit a state, upon approval by the Secretary of Education, to adopt a policy incorporating student academic growth in AYP that must:

  • Set annual growth targets that:


(1) Lead all students, by the 2013-14 school year, to meet or exceed the state's proficient level of academic achievement on the state assessments;
(2) Are based on meeting the state's proficient level of academic achievement on the state's assessments and are not based on individual student background characteristics; and
(3) Measure student achievement separately in mathematics and reading/language arts;

  • Ensure that all students who are tested using the state's assessments are included in the state's assessment and accountability systems;
  • Hold all schools and local school districts accountable for the performance of all students and student subgroups;
  • Be based on state assessments that:


(1) Produce comparable results from grade to grade and from year to year in mathematics and reading/language arts;
(2) Have been in use by the state for more than one year; and
(3) Have received full approval from the Secretary before the state determines AYP based on student academic growth;

  • Track student progress through a state-developed data system;
  • Include, as separate factors in determining whether schools are making AYP for a particular year:


(1) The rate of student participation in assessments; and
(2) Other academic indicators (graduation rate for high schools); and

  • Describe how the proposed annual growth targets fit into a state's accountability system in a manner that ensures that the system is coherent and that incorporating individual student academic growth into a state's definition of AYP does not dilute accountability.

TCTA submitted comments that while we appreciate the proposal to allow states to establish and implement policies for incorporating individual student academic progress into the state's definition of AYP, we fear that potential benefits of this will be significantly undermined by the requirement that the state set annual growth targets that lead all students, by school year 2013-14, to meet or exceed the state's proficient level of academic achievement on the state assessments, since few, if any, states are expected to meet the 2013-14 deadline. Instead, TCTA suggested simply allowing states to set annual growth targets for students and delete the language that the growth targets lead all students, by school year 2013-14 to meet or exceed the state's proficient level of academic achievement. However, USDE declined to respond to this concern.  See related story on TCTA comments on growth model submitted by Texas.

On a related matter, in the explanatory notes accompanying the proposed rules, USDE included a statement that "While not a condition of incorporating individual student academic growth into a state's definition of AYP, inclusion of a teacher identifier will create a much richer set of data to guide school improvement efforts." TCTA commented on this statement, noting that “While we understand the desire to get better data on student academic growth, we are also aware of the push by several sectors to tie teacher pay and other employment decisions to student performance, in particular, student performance on tests. Given the divisiveness of this issue, and the fact that many experts on this issue have expressed the opinion that it is not currently possible to validly and accurately isolate and evaluate the teacher effect on student test scores, we view the Department's statement encouraging inclusion of a teacher identifier as gratuitous and having the strong appearance of supporting a particular ideology. Accordingly we would suggest that it be eliminated.” In response, USDE stated “We believe that the information gained by including a teacher identifier could provide States, schools, and teachers with valuable information to guide a number of policy objectives; for example, linking student performance with specific teachers could guide professional development or other instructional improvement strategies. We note, however, that the criteria in §200.20(h)(2) do not require a State’s growth model to include a teacher identifier.”

Restructuring
Current law prescribes a cascading set of sanctions applicable to schools that fail to make AYP. Title I, Part A campuses that have failed to make AYP for five consecutive years or to make AYP after one year of corrective action must engage in restructuring activities as follows:

(i) Reopen the school as a public charter school;

(ii) Replace all or most of the school staff (which may include the principal) who are relevant to the failure to make AYP;

(iii) Enter into a contract with an entity, such as a private management company with a demonstrated record of effectiveness, to operate the public school;

(iv) Turn the operation of the school over to the State Education Agency (SEA), if permitted under state law and agreed to by the state; or

(v) Any other major restructuring of the school's governance arrangement that makes fundamental reforms, such as significant changes in the school's staffing and governance, to improve student academic achievement in the school, and that has substantial promise of enabling the school to make AYP.

Due to concerns that the restructuring requirements were not being implemented effectively, and that many schools have chosen the last option for restructuring, which some view as the "loophole" option that allows schools to make minimal changes, USDE issued final regulations requiring that interventions implemented as part of a school's restructuring plan must be significantly more rigorous and comprehensive than the corrective action plan that the school implemented after it was identified for corrective action; the school district must implement interventions that address the reasons for a school being in restructuring; and replacing school staff may also include replacing the principal, but replacing the principal by itself is not sufficient.

Supplemental Educational Services (SES) and public school choice
Frustrated with the low percentages of students taking advantage of the school choice and supplemental educational services (SES), such as tutoring if enrolled in schools that fail to make AYP for two consecutive years, the USDE issued a series of regulations intended to increase student participation in these options.

Access to information on district implementation of public school choice and SES
First, the final regulations require local school districts to provide the public with information regarding the school district's implementation of the public school choice and SES requirements in a timely manner to ensure that parents have current information on these options. School districts are required to prominently display the following information on the school district's website:

  • Beginning with data from the 2007-08 school year and for each subsequent school year, the number of students who were eligible for and the number of students who participated in public school choice.
  • Beginning with data from the 2007-08 school year and for each subsequent school year, the number of students who were eligible for and the number of students who participated in SES.
  • For the current school year, a list of SES providers approved by the state to serve the local school district and the locations where services are provided.
  • For the current school year, a list of available schools that are offered to students eligible to participate in public school choice.

Timely and clear notification to parents
Next, the final regulations require school districts to notify parents of eligible children that they may participate in public school choice, and detail their available options as far in advance as possible, but no later than 14 days before the start of the academic year, in the hopes that with more time for parents to evaluate their public school choice options, the level of public school choice participation should increase (former regulations stated that districts must provide parents with this information by the first day of a new academic year). The final regulations also require the SES eligibility notice to highlight the benefits of SES, and to be clear, concise and distinguishable from the other information sent to parents. According to USDE, this change will address concerns that parents may be unaware of their child's eligibility for SES because the eligibility notice is not clearly distinguishable from the information that school districts provide when a school is in improvement.

State monitoring of district implementation of SES
Former regulations required states to monitor school districts and their implementation of the SES requirements; however, the new final regulations require each state to:

  • Post on its website, for each district, the amount of funds the district must spend on choice-related transportation, SES, and parent outreach, and the maximum per-pupil amount available for SES;
  • Indicate on its list of approved SES providers those that are able to serve students with disabilities or limited English proficient students; and
  • Develop, implement, and publicly report the standards and techniques it uses to monitor how districts implement the SES requirements.

SES provider approval process
Reacting to claims of uncertainty regarding the evidence providers must submit as part of their application to be an approved SES provider; USDE final regulations specify the minimum evidence that states must consider in approving providers to help ensure that students receive high quality SES services as follows:

  • Evidence from a provider that its instructional methods and content are aligned with state academic content and student academic achievement standards, and are of high quality, research-based, and specifically designed to increase the academic achievement of eligible children;
  • Information from the provider on whether the provider has been removed from any state's approved provider list;
  • Parent recommendations or results from parent surveys, if any, regarding the success of the provider's instructional program in increasing student achievement;
  • Evaluation results, if any, demonstrating that the instructional program has improved student achievement.

State monitoring of SES provider effectiveness
States are required to evaluate whether providers have contributed to increased student achievement for two consecutive years. However, the law does not specify the evidence a state must consider in making determinations about renewing or withdrawing providers from the state's approved list. Believing that there is a need to specify the evidence that states must consider in monitoring SES providers so that stronger programs will be approved, there are clearer expectations for monitoring, and there is better alignment between approval and monitoring criteria, USDE issued final regulations that require states to examine, at a minimum, evidence that the provider's instructional program:

  • Is consistent with the instruction provided and the content used by the school district and state;
  • Addresses students' individual needs as described in students' SES plans;
  • Has contributed to increasing students' academic proficiency; and
  • Is aligned with the state's academic content and achievement standards.

States are also required to consider:

  • Any recommendations from parents (including through parent surveys) concerning the provider, if such information is available; and
  • Any evaluation results demonstrating that the instructional program has improved student achievement.

Costs for parent outreach
Previously, districts were not allowed to count the costs of providing parents with the information they need to make informed decisions about school choice and SES toward their obligation to spend an amount equal to 20 percent of their Title I, Part A funding on public school choice and SES. However, the final regulations permit a district to count the costs associated with providing parent outreach and assistance toward meeting its 20 percent obligation for SES and transportation for public school choice. The amount that can be counted as such is capped at 0.2 percent of the district's Title I, Part A allocation.

Use of funds for public school choice and SES
Current law does not require that districts meet certain requirements before reallocating funds for public school choice and SES to other purposes. However, the final regulations require a district, before reallocating unused funds from choice-related transportation and SES to other purposes, to provide satisfactory evidence to the state that it has demonstrated success in:

  • Partnering, to the extent practicable, with community-based organizations to inform students and parents of SES and public school choice options.
  • Ensuring that students and their parents have had a genuine opportunity to sign up to transfer to a better-performing school or obtain SES by:
    • Providing timely, accurate notice to parents;
    • Ensuring that sign-up forms are made widely available and accessible and that they have been distributed directly to all eligible students and their parents; and
    • Providing a minimum of two enrollment “windows,” at separate points in the school year, that are of sufficient length to enable parents of eligible students to make informed decisions about requesting SES and selecting an SES provider.
  • Ensuring that SES providers are given access to school facilities on the same terms available to other groups that seek to use school facilities (according to USDE, since current law does not require local school districts to pay or provide transportation for students to and from SES programs, families may have to arrange transportation for their children to the site where SES services are provided if SES providers cannot operate on school grounds. Accordingly, the final regulation is a means of ensuring that families can participate in, and students can attend, SES programs.)

Additionally, the final regulations require that each state:

  • Ensure, through its regular monitoring process, that a district that uses unspent funds from its 20 percent obligation for other allowable activities meets the criteria listed above; and
  • In addition to regular monitoring, review, by the beginning of the next school year, the activities of any district that spends a significant portion of its 20 percent obligation for other allowable activities and that has been the subject of multiple complaints regarding its implementation of the public school choice and SES requirements.

The new regulations are effective Nov. 28, 2008

Web posted:  11/06/08