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Hot Topics in Implementing the No Child Left Behind Act


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Title: Hot Topics in Implementing the No Child Left Behind Act

Hot Topics in Implementing the No Child Left
Behind Act
  • Maree Sneed
  • Hogan Hartson L.L.P.
  • 555 Thirteenth Street, N.W.
  • Washington, DC 20004-1109
  • (202) 637-6416

Outline of Topics
  • State Accountability Plans
  • Adequate Yearly Progress
  • Subgroups
  • 95 Participation Rate Requirement
  • Assessment of Students with Disabilities
  • Assessment of Limited English Proficient Students
  • Amending State Accountability Plans
  • Accountability
  • School Accountability
  • Title I Choice
  • Supplemental Educational Services
  • District Accountability
  • Unsafe School Choice
  • Teacher Qualifications
  • Funding (or Lack Thereof?)

Quiz True or False?
  • Florida requires a minimum subgroup size of 20
    students for both reporting and accountability
  • Floridas other academic indicator for elementary
    and middle schools is the statewide writing
  • Florida does not permit districts to designate
    the Florida Virtual School as a Title I choice
  • Florida has approved 12 faith-based organizations
    as supplemental educational service providers.
  • Florida has determined that its high, objective
    uniform state standard of evaluation is not
    appropriate for teachers of Speakers of Other

State Accountability Plans
  • Must include all public schools and districts in
    the state
  • Must hold all public schools to the same criteria
  • Must include all public school students
  • Charter school students
  • Mobile students
  • Must provide information in a timely manner,
    including through school and district report
  • Must include rewards and sanctions

State Accountability Plans (2)
  • Must set requirements for Adequate Yearly
    Progress (AYP)
  • Must apply to all students and to students in
    particular subgroups
  • Major racial/ethnic groups
  • Economically disadvantaged students
  • Limited English proficient (LEP) students
  • Students with disabilities
  • Must be based primarily on academic assessments
  • Must meet full academic year requirement for
    score to count toward AYP
  • Must meet 95 test participation requirement, for
    all students and for each subgroup
  • Safe harbor provision
  • Must include at least one other academic
  • Usually attendance rates for elementary and
    middle schools
  • Graduation rate for high schools
  • Must expect all public school students, including
    students in each subgroup, to achieve proficiency
    on mathematics and reading/language arts
    assessments by end of 2013-2014 school year

State Accountability Plans (3)
  • Each state defines proficiency individually.
  • A February 9, 2004 report from the Harvard Civil
    Rights Project found that in part because of
    this, the NCLB requirements have no common
  • Some states have lowered their standards to avoid
    penalties for failing to make AYP, or have
    adopted different accountability systems for
    state and federal purposes.
  • For example, according to a December 2003
    Northwest Evaluation Association study, 8th grade
    students in Wyoming must master algebra to be
    deemed proficient, while students in Colorado
    need only master high-level arithmetic.
  • A recent study of 30 state systems by the Fordham
    Foundation and Accountability Works concluded
    that too often states set the bar for proficiency
    too low.
  • On October 1, 2004, the Government Accountability
    Office recommended that USDOE establish a written
    process and timeline for states to meet NCLB
    requirements for full approval of state plans,
    including with respect to development of
    standards and assessment systems by 2006.

Florida Accountability Plan
  • Floridas plan includes all public schools in the
    state, but, with respect to schools with fewer
    than thirty students (210 total schools)
  • Those schools with highly mobile populations,
    such as juvenile justice facilities, teen parent
    programs, and hospital/homebound programs will
    not receive individual AYP designations.
  • Ninety-eight schools fall into this category.
  • Scores at these schools will be rolled up to
    the district and/or state levels.
  • Other schools with fewer than thirty students,
    such as exceptional student education, vocational
    schools, and others, will receive individual AYP
    designations as long as they enroll at least ten
  • One hundred twelve schools fall into this
  • If a school enrolls fewer than ten students, its
    students scores will likewise be rolled up to
    the district and/or state levels. (These schools
    consist primarily of special situations in which
    one or more students have unique placements based
    on special circumstances, e.g., an adult
    education center or county jail.)
  • Assessments
  • Florida Comprehensive Assessment Test (FCAT)
  • LEP students enrolled in an approved English as a
    Second Language program for 12 months or less may
    be assessed using other measures of academic
    performance if FCAT is determined inappropriate
  • For those students with disabilities for whom
    the Sunshine State Standards and participation in
    the FCAT are not appropriate, Florida uses a
    system of locally-developed alternate

Florida Accountability Plan (2)
  • Subgroups
  • American Indian
  • Asian
  • Black
  • Hispanic
  • White
  • Economically Disadvantaged
  • Students with Disabilities (SWD)
  • LEP
  • A student is considered in attendance for a full
    academic year if the student is enrolled and in
    attendance by the fall term as documented in
    Survey 2 conducted the second week of October and
    Survey 3 conducted the second week of February.
  • Each Florida student is assigned a unique
    identification number upon initial enrollment.
    That same number remains with the student,
    regardless of changes in school or district
  • If a student transfers schools before the March
    testing window concludes, that students scores
    will be used in district but not individual
    school AYP calculations. If the student
    transfers districts, the scores will be used only
    in state calculations of AYP.

Florida Accountability Plan (3)
  • Other Academic Indicators (must show an increase
    of at least 1 from prior year)
  • Elementary and Middle
  • FCAT writing assessment
  • Administered in grades 4 and 8
  • High
  • Grade 10 writing assessment
  • Graduation rate
  • Note In addition, a school graded D or F
    under the Florida A Plan for Education will
    automatically be determined to have failed to
    make AYP.
  • Minimum Subgroup Size
  • For reporting purposes, 10 students
  • For accountability purposes, 30 students (with
    the exception of small schools having a stable
    population of between 10 and 30 students)

AYP Subgroups
  • Some states proposed that schools not be
    identified for improvement if their failure to
    make AYP was based on one subgroups performance
    in one year and a different subgroups
    performance in the following year.
  • The U.S. Department of Education (USDOE) has
    rejected this approach.
  • However, other state accountability plans
    indicate that the failure to make AYP must be in
    the same grade band to be considered a second
    consecutive year of failure.
  • Another difficulty is changing demographics If
    the size of a subgroup increases dramatically, a
    school will have to make tremendous progress to
    meet AYP requirements.
  • Note Although a school may need to improve a
    particular subgroups score to avoid
    identification for improvement, the school should
    not, as one school reportedly did, hold separate
    assemblies for each minority subgroup. Rather,
    the school should consider more inclusive means
    of improving student scores within relevant
    subgroups and in the school as a whole.

AYP Subgroups (2)
  • A February 9, 2004 Harvard Civil Rights Project
    Report found that NCLB sanctions fell especially
    hard on minority and integrated schools.
  • Among the reports key findings
  • The federal law identified schools as needing
    improvement on the basis of their demographic
    characteristics rather than their contribution to
    student learning.
  • Despite the demographic differences between
    schools needing improvement and schools meeting
    AYP, two-year trends in achievement scores
    indicate that both types of schools made similar
    gains in reading and math proficiency scores.
    Regardless of initial differences in test score
    levels, all schools appear to help their students
    make similar improvements in reading and math
    over two years.
  • In Illinois and New York, schools needing
    improvement enrolled over twice as many minority
    and low-income students, on average, than schools
    meeting AYP.
  • In California, schools identified as needing
    improvement were more likely to contain a Black,
    Latino, socio-economically disadvantaged, and
    limited English proficient subgroup than schools
    making AYP.

AYP 95 Participation Rate
  • Many schools have failed to make AYP because they
    did not meet NCLBs 95 testing participation
    requirement for the school as a whole or for
    particular subgroups.
  • For example, in 2002, 70 of California schools
    failed to make AYP, primarily because they did
    not meet the 95 participation requirement.
  • On March 29, 2004 and again on May 19, 2004,
    USDOE identified new flexibility for meeting the
    95 participation rate requirement.
  • Average Participation Rate States may use data
    from the previous one or two years to average
    participation rate data for a school and/or
  • Medical Emergencies Schools can omit students
    who cannot take an assessment because of a
    significant medical emergency that lasts
    throughout the entire testing window, including
    makeup dates, when calculating participation

AYP Students with Disabilities
  • The same grade-level academic content and
    achievement standards that apply to all public
    schools and public school students in a state
    must be applied to alternate assessments used for
    students with disabilities.
  • Alternate assessments must yield results for the
    grade level in which the student is enrolled in
    at least reading/language arts, mathematics, and,
    beginning in the 2007-2008 school year, science.
  • In December 2002, USDOE withdrew a proposed
    regulation that would have limited the use of
    alternate achievement standards for students with
    the most severe cognitive disabilities for
    purposes of determining AYP to no more than 0.5
    of all students. On March 20, 2003, USDOE
    proposed a 1.0 cap instead.

AYP Students with Disabilities (2)
  • Key points of the final regulations, issued
    December 2003, include
  • The rules DO NOT limit the percentage of students
    with the most significant cognitive disabilities
    who may take 1) assessments with accommodations
    2) alternate assessments based on state
    achievement standards or 3) alternate
    assessments based on alternate achievement
  • The rules DO limit the percentage of proficient
    scores on alternate assessments based on
    alternate achievement standards that may be
    counted for AYP purposes.
  • That percentage may not exceed 1.0 of all
    students in the grades tested (about nine percent
    of students with disabilities).
  • States may appeal to USDOE for a higher limit.
    School districts may likewise appeal to the state
    for a waiver.
  • States define which students have the most
    significant cognitive disabilities.  
  • According to Education Daily, on April 27, 2004,
    USDOE rejected a request from Congressional
    Democrats to apply this change retroactively.
  • In September 2004, Senator Kennedy (D-MA)
    introduced the NCLB Improvement Act, which would,
    among other things, make this change retroactive
    to the 2002-2003 school year.

AYP Students with Disabilities (3)
  • On March 2, 2004, USDOE provided guidance
    regarding how states and districts can request
    waivers of this 1.0 limit
  • States should contact USDOE no later than three
    months prior to the date that schools will be
    notified of identifications for improvement based
    on 2003-2004 assessment data.
  • States will be asked to provide supporting
    information and documentation, including the
  • An explanation of the relevant circumstances
  • Data showing the incidence rate of students with
    the most significant cognitive disabilities and
  • Information showing how the state has implemented
    alternate achievement standards, consistent with
    NCLB regulations.
  • USDOE urged states to adopt similarly rigorous
    processes for school district waiver requests,
    especially since USDOE will not grant an
    exception to a State based on the States liberal
    granting of exceptions to school districts.

AYP Students with Disabilities (4)
  • Several states have submitted waiver requests to
    USDOE. For example
  • Ohio
  • 1.3 cap for the 2003-2004 school year
  • Texas
  • No cap for the 2003-2004 school year, 7 cap for
    the 2004-2005 school year, and 6 cap for the
    2005-2006 school year
  • Texas dropped its request after beginning
    negotiations with USDOE officials.
  • As a result, it was reported that nearly 9
    percent of Texas students will be counted as
    automatic failures in calculating whether their
    schools make "Adequate Yearly Progress and that
    many more schools will fail to make AYP.
  • Virginia
  • 3.5 cap for three years

Challenges in Assessing Students with Disabilities
  • NCLBs 95 Assessment Participation Requirement
  • Before NCLB, many disabled students were exempted
    from state assessments.
  • Now, such exemptions can cause a school to fail
    to make AYP.
  • Use of Grade-Level Assessments
  • Many special education students do not perform at
    grade level, and are not required to do so under
    their Individualized Education Programs (IEPs).
  • NCLB, however, indicates that assessments should
    generally be based on grade-level standards.

Challenges in Assessing Students with
Disabilities (2)
  • Interaction of NCLB and the Individuals with
    Disabilities Education Act (IDEA)
  • NCLB indicates IDEA/IEPs trump when determining
    which assessments, accommodations to use with
    disabled students but
  • Many states and testing companies have
    invalidated test results of students using
    IEP-required accommodations.
  • USDOE has limited the percentage of students that
    can use alternate assessments based on alternate
    standards even though IEPs may permit use of
    alternate standards for a greater percentage of
  • Several school districts, including those in the
    Washington area, have sought guidance regarding
    these issues and have proposed regulatory
  • According to an Education Policy Reform Research
    Institute report, concerns regarding NCLBs
    accountability requirements have hindered IDEAs
    goals of including students in the general
    education environment wherever possible. For
    example, teachers in tested grades are sometimes
    reluctant to include special education students
    in their classes because they count against
    them in assessments.
  • Note USDOE has indicated that it expects the
    ongoing IDEA reauthorization to wed NCLB
    requirements to IDEA.

AYP LEP Students
  • The same grade-level academic content and
    achievement standards that apply to all public
    schools and public school students in a state
    must be applied to alternate assessments used for
    LEP students.
  • Students may initially be tested in their native
  • After three consecutive years in U.S. schools,
    assessment for reading/language arts must be in
    English unless the school district determines on
    a case-by-case basis that native language
    assessments would yield more accurate and
    reliable results.
  • Such individual exceptions then would be allowed
    for up to two additional years.
  • NCLB does not limit use of native language
    assessments for subjects other than
    reading/language arts.
  • Students may also receive appropriate
    accommodations to ensure the validity and
    reliability of the test results.

Challenges in Assessing LEP Students
  • Lack of Native Language Assessments
  • Many states do not have assessments in other
    languages. Moreover, even a state, like New
    York, that does have native language assessments
    cannot provide assessments in all of the
    languages spoken by the states LEP students.
  • On February 19, 2004, USDOE issued new guidance
    that would give LEP students the option of taking
    the reading/language arts assessments in their
    first year of enrollment.
  • On June 24, 2004, USDOE issued proposed
    regulations to codify its February guidance.
    Under the proposed regulations
  • Newly arrived LEP students must still take the
    test of English language proficiency to measure
    their progress in learning English.
  • States are not required to include the math
    results (or those of the reading/language arts
    assessment, if given) in AYP calculations.
  • LEP students who opt out of the reading/language
    arts assessment can still be counted as
    participants for the 95 testing requirement as
    long as they take both the math and English
    language proficiency assessments.
  • Comments on the proposed regulations were due
    August 9, 2004.

Challenges in Assessing LEP Students (2)
  • Lack of Native Language Assessments (continued)
  • USDOEs new guidance and proposed regulations
    would not apply to LEP students who have been in
    the United States for more than a year, so the
    lack of native language assessments remains a
    challenge for those students.
  • In addition, USDOE most recently at Secretary
    Paiges annual back-to-school address on
    September 24, 2004 has refused to apply these
    new policies retroactively.
  • In June 2004, Representative George Miller (D-CA)
    and Senator Edward Kennedy (D-MA) introduced the
    NCLB Fairness Act. If passed, the act would
    require USDOE to apply its new policies on
    assessments of LEP students, as well as its new
    policies on participation rate calculation rates
    and assessment of special education students,
    discussed earlier, retroactively.
  • In September 2004, Senator Kennedy introduced the
    NCLB Improvement Act, which would likewise make
    these changes retroactive.

Challenges in Assessing LEP Students (3)
  • Use of Accommodations
  • NCLB permits reasonable accommodations.
  • BUT many states, testers are unaware of this
    provision, and have invalidated test results of
    LEP students who used permissible accommodations
  • In addition, NCLB does not set a time limit on
    use of reasonable accommodations.
  • BUT, some states have misinterpreted NCLB to
    prohibit use of reasonable accommodations after
    an LEP student has been in U.S. schools for three
    consecutive years.
  • The provision at issue applies to use of native
    language assessments, not reasonable
    accommodations AND
  • That provision applies only with respect to
    assessments of reading/language arts, not other
    content area tests.

Challenges in Assessing LEP Students (4)
  • Credit for Progress in Improving LEP Test Results
  • It is hard for schools to make AYP with respect
    to the LEP subgroup.
  • Generally, an LEP students scores will improve
    as the student becomes more proficient in
  • By definition, though, an LEP student ceases to
    be part of the LEP subgroup upon attaining
    English language proficiency.
  • Schools therefore do not get credit for
    improvements in LEP students scores.
  • USDOE previously negotiated agreements with
    various states, including California and
    Illinois, to remedy this concern by permitting
    schools to count a student as LEP for a
    predetermined number of years after the student
    achieves English language proficiency.
  • On February 19, 2004, USDOE issued new guidance
    that permits all states to count former LEP
    students as LEP for up to two years after those
    students attain English language proficiency. In
    June 2004, USDOE issued proposed rules to codify
    this new guidance, but USDOE has refused to make
    these changes retroactive.

Amending State Accountability Plans
  • On February 5, 2004, USDOE announced procedures
    for review and approval of amendments to state
    accountability plans.
  • Under these procedures, states must submit
    written requests for amendments no later than
    April 1st (of the year whose assessment results
    the change might affect).
  • The states submission must include
  • The rationale for the amendment and
  • Relevant evidence of its effect.

Amending State Accountability Plans (2)
  • For example, in its February 5th letter, USDOE
    highlighted an example of an amendment relating
    to assessment of students with disabilities
  • States that counted students as participants
    under NCLB even if they took an out-of-level
    assessment that was not based on alternate
    achievement standards as outlined in current
    regulations will need to adjust this
  • Students now can only be counted as participants
    if they take an assessment that meets the
    requirements of the final regulation, which was
    adopted after the original state plans were

Amending State Accountability Plans (3)
  • States may also need to amend their
    accountability plans if they wish to take
    advantage of USDOEs February 19, 2004 guidance
    on LEP students (discussed earlier)
  • Waiver of reading/language arts content area
    assessments for LEP students during their first
    year of enrollment
  • Inclusion of former LEP students in the LEP
    subgroup for up to two years after those students
    attain English language proficiency

Amending State Accountability Plans (4)
  • For example, in 2004, USDOE approved the
    following changes in the size of the special
    education subgroup for AYP purposes
  • Alaska 40 students (up from 20)
  • Kansas 40 students (up from 30)
  • Missouri 50 students (up from 30)
  • Note The Consortium for Citizens with
    Disabilities has urged USDOE to prevent states
    from making the size of the special education
    subgroup too large, as that could effectively
    exclude special education students from NCLBs
    accountability provisions.
  • As another 2004 example, USDOE approved the
    following changes to Delawares accountability
  • Use of confidence intervals to increase
    reliability of subgroup calculations
  • Substitution of a progress indicator for middle
    school science and social studies scores as
    other academic indicators

Stages of School Accountability
  • School Improvement
  • 2 consecutive years of failure to make AYP
  • If Title I school, requires Title I choice and,
    in second year of school improvement,
    supplemental educational services
  • Corrective Action
  • 4 consecutive years of failure to make AYP
  • If Title I school, requires above and at least
    one corrective action, such as new staff or
  • Restructuring
  • Failure to make AYP after 1 full year of
    corrective action
  • Requires restructuring plan, which could include
    state takeover or contract with private education
    management company

Appeals of School Identification
  • Not later than 30 days after receipt of state
    test results, the school district must officially
    identify all schools in need of improvement,
    corrective action, or restructuring.
  • During that time, schools should determine
    whether there are any substantive grounds for
    appealing any school identifications.
  • Examples of possible grounds for appeal of
    identification include
  • Inaccurate or incomplete testing data
  • Inclusion of students who were not in a school
    for a full school year
  • Satisfaction of safe harbor provision
  • Several districts have appealed identification
    under NCLB.
  • In Georgia, in 2003, close to 200 schools were
    removed, upon appeal, from the states list of
    identified schools.
  • In December 2003, after unsuccessful appeals,
    Reading School District filed suit against the
    Pennsylvania Department of Education (PDE) to
    challenge classification of 13 of its 19 schools
    as failing to make AYP. In August 2004, the
    district lost its challenge before the state
    trial court, and has now appealed to the state
    supreme court.
  • Kennett Consolidated School District (also in
    Pennsylvania) likewise sued PDE to challenge
    identification of one of its schools. In
    September 2004, PDE reportedly settled the suit.
    PDE agreed to remove the identification but
    refused to concede any of its arguments or to
    explain the rationale for its decision.

Title I Choice
  • Any student attending a school that is in school
    improvement, corrective action, or restructuring
    has the opportunity to transfer to another school
    in the district.
  • The district may identify the schools to which a
    student may have the opportunity to transfer.

Title I Choice (2)
  • Identification of receiving school
  • May not include
  • Schools that have been identified for
    improvement, corrective action, or restructuring
  • Schools identified as persistently dangerous
  • May include public charter schools
  • Timing
  • District must provide opportunity for choice no
    later than first day of school year following
    year in which school district administered
    assessments that led to identification.
  • Note Districts ability to meet this requirement
    is dependent upon states timely release of
    assessment data.

Title I Choice (3)
  • Number of Choices District must provide choice
    of more than one school and must take into
    account parent preferences among the choices
  • Enrollment in Sending School Student may remain
    at new school until completion of the schools
    highest grade, even after school is not in one of
    accountability stages.
  • Effect of Capacity Constraints District may NOT
    use lack of capacity in the district to deny
    students the option to transfer, but it can use
    capacity in a school to deny a transfer request
    to that school.

Title I Choice (4)
  • According to USDOEs February 6, 2004 Draft
    Non-Regulatory Guidance on Public School Choice,
    when capacity is an issue school officials will
    need to employ creativity and ingenuity to meet
    demand. Here are some of the examples that USDOE
  • Reconfiguring, as new classrooms, space in
    receiving schools that is not currently used for
  • Expanding space in receiving schools, such as by
    reallocating portable classrooms within the
  • Redrawing the districts attendance zones
  • Creating satellite divisions of receiving
  • Creating new, distinct schools, with separate
    faculty, within the physical sites of schools
    identified for improvement
  • Encouraging the creation of new charter schools
    within the district
  • Developing distance learning programs, or
    entering into cooperative agreements with
    virtual schools and
  • Modifying either the school calendar or the
    school day, such as through shift or track
    scheduling, in order to expand capacity.

Title I Choice Florida
  • The Florida Department of Education (FDE)
    stated in an April 2004 letter to school
    districts that, given the numerous initiatives
    regarding school choice already available across
    the state, it believed that meaningful choice
    for many of Floridas low achieving students from
    low socio-economic families has been provided.
    These existing choice options include
  • Public school parental choice
  • Charter schools
  • Charter technical career centers
  • The Florida Virtual School
  • Floridas Opportunity Scholarship Program (Note
    This voucher program was recently found
    unconstitutional under the state constitution to
    the extent that it permitted parents to use state
    funds at private religious schools.)
  • In developing new choice options for identified
    schools, FDE recommended that districts consider
  • Placement of highly qualified teachers in core
    subject areas, with a focus on those areas in
    which the sending school did not make AYP
  • Implementation of research-based programs to
    improve achievement
  • Creation or expansion of
  • Schools within a school
  • Magnet programs
  • International Baccalaureate, Advanced Placement,
    or similar accelerated programs
  • Supplemental academic programs
  • Use of smaller class sizes, specialized
    instructional materials, and computer-assisted

Title I Choice Florida (2)
  • A May 2004 FDE presentation highlights the
    following as best practices in Title I choice
  • Lee Zoned choice where each zone offers the same
    choice programs
  • Okaloosa Franchise arrangement with Virtual
    School, with priority for economically
    disadvantaged students
  • Flagler Comprehensive shuttle system, in which
    students are transported to their home schools
    and then transfer to shuttle buses to their
    schools of choice
  • Seminole Extended transportation services to
    help choice students participate in before- and
    after-school programs

Title I Choice Florida (3)
  • The May 2004 presentation also indicates that
  • Students planning to enter a school for the first
    time should have the same opportunity for choice
    as students previously enrolled in the school.
    These students include
  • Entering kindergartners
  • Students moving from elementary to middle school
    (or from middle to high school) and
  • Students who have just moved into the schools
    attendance area.
  • Districts may choose to offer school choice with
    transportation, and additional school choice
    without transportation as long as the school
    choice without transportation does not unfairly
    exclude the lowest achieving children from
    low-income families.
  • Districts can establish transportation zones for
    choice, with transportation fully funded to
    schools within the designated zone, and only
    partially funded to schools outside the zone.
  • Districts must ensure, though, that each zone has
    sufficient capacity to accommodate demand for
    choice within that zone.
  • Otherwise, districts must permit students to
    attend schools outside the zone with
  • Districts should consider transporting teachers,
    programs, and supports, rather than students, in
    implementing Title I choice.

Challenges of Title I Choice
  • Implementing choice is costly and
    administratively difficult.
  • A February 2004 Harvard Civil Rights Project
    Study found
  • In many instances, students transferred to other
    schools with high poverty rates
  • No serious evaluation was done of whether
    transfers helped the students exercising choice
  • Burdens were concentrated in high-poverty urban
    districts and
  • In 11 urban districts fewer than 3 of eligible
    students transferred.
  • To alleviate administrative difficulties, Palm
    Beach County School District, for example,
    required parents of children who might be
    eligible for choice to choose among possible
    receiving schools by April 28th, though they will
    not learn whether their children are actually
    eligible until after June 28th.
  • Akron officials opted for a similar approach,
    only to discover that only 3 schools not 19, as
    initially expected were actually identified for
    improvement under NCLB.
  • In May 2004, USDOE issued a publication that
    highlights promising choice practices at five
    school districts (Cambridge, MA Desert Sands,
    CA Mesa, AZ Miami-Dade County, FL and
    Milwaukee, WI).

Challenges of Title I Choice (2)
  • Districts ability to identify schools in a
    timely manner, as required by NCLB, is dependent
    upon states timely release of relevant
    assessment data.
  • For example, Texas has yet to release 2003
    testing data.
  • Texas has explained that the delay was caused by
    extended negotiations with USDOE over amendments
    to the states accountability plan.
  • According to September 2004 press reports, USDOE
    is considering withholding as much as 7 million
    from Texas for its failure to release test score
    data before the start of the 2004-2005 school
  • According to USDOE, half the states have not yet
    reported AYP results as of the start of the
    2004-2005 school year.
  • Some districts have few or no potential receiving
  • For example, Chicago officials predict only 457
    of tens of thousands of eligible students may be
    able to transfer.
  • Districts have found it difficult to persuade
    neighboring districts to accept choice students.
  • Some districts, such as Grant Joint Union School
    District in California and the District of
    Columbia Public Schools, have had to offer
    supplemental services instead.

Challenges of Title I Choice (3)
  • Demand for choice can be expected to increase as
    more schools are identified.
  • Preliminary data from USDOE indicated that about
    47,000 students (or about one out of every
    thousand students) nationwide transferred under
    NCLBs Title I choice provisions in 2002-2003.
    USDOE anticipates the number will go up.
  • For example, about 2,500 Palm Beach County
    students requested Title I choice transfers in
  • As demand increases, so will transportation
  • Some districts are reimbursing parents for
    transportation costs, whether on public
    transportation or by taxi.

Supplemental Educational Services
  • Definition Tutoring and other academic
    enrichment services that are
  • In addition to instruction provided during the
    school day
  • Specifically designed to increase academic
    achievement and enable students to attain
  • Of high quality and research-based
  • Eligibility Children from low-income families
    attending Title I schools that have failed to
    make AYP for 3 or more consecutive years
  • Priority If Title I funding is insufficient to
    meet demand, priority must be given to the
    lowest-achieving low-income students. Districts
    should use objective criteria to determine
  • Selection Parents select service provider

Supplemental Educational Services (2)
  • States Obligations
  • Develop list of eligible providers
  • Provide potential providers with annual notice of
    opportunity to provide supplemental services and
    procedures for obtaining approval
  • Maintain, by school district, list of approved
  • Publicly report standards and techniques for
    monitoring quality and effectiveness of services
    provided and for withdrawing approval from
    providers who fail, for 2 consecutive years, to
    contribute to increasing students academic

Supplemental Educational Services (3)
  • Districts Obligations
  • Develop services agreements with approved
  • Provide annual notice to parents of service
  • Provide assistance for provider selection
  • Pay for supplemental services
  • Must spend at least 5 of Title I, part A
    allocation on such services and at least 20 on
    supplemental services and Title I choice
    combined, if necessary to meet demand
  • Ensure that students with disabilities receive
    appropriate services and accommodations,
    consistent with goals and objectives of students
  • Ensure that LEP students receive appropriate
    services and language assistance
  • Not disclose to public, without parents
    permission, identity of any student eligible for,
    or receiving, supplemental services

Supplemental Educational Services (4)
  • Components of Supplemental Service Agreements
  • Specific achievement goals for student, developed
    in consultation with students parents
  • Description of how students progress will be
    measured and how students parents and teachers
    will be regularly informed of progress
  • Timetable for improving students achievement
  • Provision for termination of the agreement if
    provider fails to meet students progress goals
  • Provisions for payment of services
  • Provision prohibiting provider from disclosing to
    public identity of any student eligible for or
    receiving services without the written permission
    of the students parents AND
  • Assurance that services will be provided
    consistent with applicable civil rights laws

Supplemental Educational Services (5)
  • In August 2004, USDOE provided additional
    information regarding school districts authority
    and the limitations on that authority with
    respect to supplemental educational services.
  • School districts may not require service
    providers to meet additional conditions relating
  • Minimum number of hours of services,
  • Use of state-certified teachers as tutors, or
  • One-on-one tutoring.
  • BUT districts can impose reasonable operational
    and administrative requirements applicable to all
    district contractors, such as the following
  • Background checks for company employees and
  • Minimum level of liability insurance.

Supplemental Educational Services Florida
  • In May 2004, FDE indicated
  • Based on preliminary data, it expected that 45
    schools in 14 districts would be eligible for
    supplemental educational services in the
    2004-2005 school year.
  • It had approved 56 1st round providers (based on
    January applications)
  • 26 statewide
  • 27 commercial/private companies
  • 14 community-based organizations
  • 7 distance learning groups
  • 8 school districts
  • 3 private schools
  • 1 faith-based organization
  • Once approved, a provider remains on the
    state-approved list for three years, unless the
    provider fails to perform adequately, meet the
    terms of agreements, or experiences poor feedback
    from parents.

Challenges of Supplemental Educational Services
  • Few parents exercised supplemental educational
    services options.
  • Possible causes of low participation rates
  • Limited number of approved providers in some
  • Late start for initiating this requirement
  • Difficulties in managing and administering the
  • Need to change families conceptions of school
    to include longer learning day in a variety of
  • For example, only 1,100 of 18,000 eligible
    students in the Chicago Public Schools registered
    for supplemental services in 2003.
  • In the meantime, USDOE announced on February 10,
    2004 that it intends to investigate Chicagos use
    of some of its Title I money to hire public
    school teachers as tutors instead of private
    supplemental educational services providers.

Challenges of Supplemental Educational Services
  • As with Title I choice, demand can be expected to
    increase as more schools are identified and
    parent information increases.
  • While the demand for services so far is low, the
    potential for supplemental educational services
    to fragment Title I is significant.
  • Districts will be faced with growing
    administrative burdens in implementing
    supplemental educational services and in
    assessing the effect of this policy on student
    achievement and Title I schools.
  • For example, DC indicated that it does not expect
    to have sufficient funding to accommodate all
    students eligible for supplemental educational
    services in 2004-2005.
  • Identifying and accommodating supplemental
    educational services requirements is
    time-consuming and costly.
  • Buffalo was required to spend 6.6 million to pay
    for supplemental educational services from
    outside agencies. The Harvard Civil Rights
    Project found the tutoring programs were only
    loosely tied to the school curriculum and were
    inadequately monitored.
  • In May 2004, USDOE issued a guide to help
    districts implement supplemental educational
    services requirements. The guide highlights
    practices at five school districts (Forsyth
    County, GA Los Angeles, CA Rochester, NY San
    Diego, CA and Toledo, OH).

Challenges of Supplemental Educational Services
  • States are not evaluating supplemental
    educational service providers effectiveness at
    improving student achievement (as required by
  • According to a September 2004 study by the
    Association of Community Organizations for Reform
    Now and the American Institute for Social
    Justice, of 30 states reviewed
  • Only six completed evaluations of supplemental
    educational services providers effectiveness.
  • Of these, only one state (Louisiana) tracked
    student test scores against tutoring services.
  • Other states either did not track student
    performance directly or used service provider
  • Three states took action against providers.
  • Arizona removed certain providers who were not
    being selected by parents.
  • Illinois removed one provider for failing to
    provide good service.
  • Pennsylvania removed one provider.
  • Six other states were not yet required to
    evaluate providers because they did not have two
    years of data.
  • Many other states were still in the process of
    completing their evaluations at the time of the
  • The study is available at http//
    eadmin/ACORN_Reports/ Accountability_Left_Behind.p

District Accountability
  • Improvement
  • Applies after two consecutive years of district
    failure to make adequate yearly progress
  • Mandates improvement plan development or
    revision, with implementation the following year
  • Corrective Action
  • Applies after 2 years of district failure to make
    AYP following identification for improvement
  • Requires state to take one or more corrective
    actions, such as replacement of school personnel
    or abolition of the district
  • If state law so provides, state must provide
    notice and hearing before taking action. The
    hearing shall take place not later than 45 days
    following the decision to implement corrective
  • Note In September 2004, it was reported that
    Indiana considers the performance of only Title I
    schools when determining whether its districts
    meet AYP requirements.
  • The statutory text seems to permit this
    interpretation of district accountability
  • USDOE has rejected this approach, but has not
    required Indiana to reconsider past
  • Indiana is reportedly considering whether to
    challenge USDOEs interpretation.

Unsafe School Choice
  • Each state must establish and implement a
    statewide policy requiring that students who
    attend persistently dangerous public schools,
    or who become victims of violent crime in or on
    public school grounds, be allowed to attend a
    safe public school, including a public charter
  • Persistently Dangerous Schools
  • Each state must consult with a representative
    sample of school districts to identify
    persistently dangerous schools using objective
  • Each state must keep appropriate records
    regarding its identification process, and must
    annually report the number of schools identified.
  • Each state must annually reassess its schools
    using its established objective criteria.
  • Victims of Violent Crime
  • Each state determines what constitutes violent

Unsafe School Choice (2)
  • A district that has one or more schools
    identified as persistently dangerous must
    timely provide transfer options and submit a
    corrective action plan for state approval.
  • All students at an identified school must be
    given transfer options.
  • To the extent possible, students should be given
    the option of transferring to a school that is
    making AYP and has not been identified for
  • Transfers must be in effect as long as the
    original school remains identified as
    persistently dangerous.

Unsafe School Choice (3)
  • USDOE issued final rules in June 2003 and
    confirmed those rules in nonregulatory guidance
    in August 2004.
  • Under the rules
  • States must identify schools as persistently
    dangerous in sufficient time to allow school
    districts to offer students the option to
    transfer to a safe school at least 14 calendar
    days before the start of the next school year.
  • Districts with identified schools must give
    students the opportunity to transfer at least 14
    calendar days before the start of the 2003-2004
    school year and every school year.
  • Implementation Note Because the deadlines for
    states are so fluid, districts could face
    situations in which states delay identification
    until shortly before the districts 14-day
    transfer option deadline is triggered.

Unsafe School Choice (4)
  • A district must also give student victims of
    violent crime on or around school grounds the
    opportunity to transfer to a safe school
    beginning at the start of the 2003-2004 school
    year and every school year thereafter.
  • USDOE Guidance provides as follows
  • States determine which crimes constitute violent
    crimes triggering transfer option.
  • Districts should generally give victims the
    opportunity to transfer to a safe school within
    14 calendar days.

Implementation of Unsafe School Choice
  • Some states are not keeping adequate records on
    crimes and violence occurring at school.
  • For example, an August 2004 audit found that DC
    lacked a comprehensive system to record and track
    violent incidents from the time of their
    occurrence until the completion of school or
    police investigations.
  • The audit also found that DCs reporting policies
    were inconsistent or unclear.
  • States seem to have set identification criteria
    high to avoid identifying schools
  • Maryland
  • Original definition would have flagged 36 of the
    states 208 schools in 2003
  • Final definition identified no schools as
    persistently dangerous in 2003
  • Pennsylvania
  • Small schools Five dangerous incidents in two of
    the past three years
  • Large schools 20 dangerous incidents in that
    time period
  • California
  • School identified if, for three years in a row,
    at least one student has a gun or commits a
    violent crime on school property and at least 1
    of students are expelled for serious crimes
  • Over the past two years, one school had 28
    batteries, two assaults with a deadly weapon,
    three sex offenses, and one death BUT is not
    considered persistently dangerous under state

Teacher Qualifications
  • After the first day of the 2002-03 school year,
    districts may hire only highly qualified teachers
    for Title I-supported programs.
  • States and school districts must develop plans to
    ensure all teachers of core academic subjects are
    highly qualified by end of 2005-2006 school year.
  • District must ensure that low-income students
    and minority students are not taught at higher
    rates than other students by unqualified,
    out-of-field, or inexperienced teachers.

Teacher Qualifications (2)
  • A teacher teaching in a Title I-supported program
    is a teacher
  • In a targeted assistance school who is paid with
    funds under Title I, Part A OR
  • In a schoolwide program school OR
  • A teacher employed by a school district who is
    paid with Title I funds to provide services to
    eligible private school students
  • Highly qualified requirement applies only to
    teachers teaching core academic subjects, such as
    reading, English, mathematics, science, foreign
    languages, economics, and civics.

Teacher Qualifications (3)
  • Basic Requirements
  • Bachelors degree (or higher academic credential)
  • Full state certification
  • Subject-matter competence
  • For new teachers, demonstrated through competency
  • For veteran elementary teachers, demonstrated
    through competency test(s) OR high, objective
    uniform state standard of evaluation (HOUSSE)
  • For veteran middle or high school teachers,
    demonstrated through competency test(s) OR HOUSSE
    OR other statutory options, such as National
    Board certification or academic major in core
    academic subject(s) taught

Teacher Qualifications Challenges
  • Effect on Veteran Teachers
  • Many current teachers entered the profession
    before states required tests of subject matter
  • These veteran teachers must therefore either be
    subjected to subject matter tests intended for
    new teachers or must be evaluated under their
    states high objective uniform state standard of
    evaluation (HOUSSE).
  • Some states, however, have been slow to devise
    and implement such a state standard of
  • According to the Education Commission of the
    States, only 22 states are on track for full
    implementation of highly qualified teacher
    requirements by 2005-2006 deadline.

Teacher Qualifications Challenges (2)
  • Effect on Veteran Teachers (continued)
  • The states that have adopted standards of
    evaluation have taken widely different
    approaches, according to a December 2003
    Education Trust study. For example
  • Arkansas five years experience
  • New Mexico five years experience, two
    successful job evaluations, college coursework in
    their fields, peer observation, portfolio of
    lesson plans, satisfactory student achievement